2008 Florida Legislature Post-Session Report

What You Should Know About Significant Bills Passed in the Regular Legislative Session

Attorneys at Law with offices at:

Atlanta Tallahassee One Atlantic Center 215 S. Monroe Street, Suite 500 1201 W. Peachtree Street, Suite 3000 Tallahassee, FL 32301 Atlanta, GA 30309 888.224.9191 866.755.9191 Tampa Miami 4221 W. Boy Scout Boulevard, Suite 1000 4000 International Place Tampa, FL 33607 100 S.E. Second Street 888.223.9191 Miami, FL 33131 West Palm Beach 800.486.0140 CityPlace Tower Orlando 525 Okeechobee Boulevard, Suite 1200 CNL Center at City Commons West Palm Beach, FL 33401 450 S. Orange Avenue, Suite 500 888.659.9191 Orlando, FL 32801 Web Site 888.849.9191 www.CarltonFields.com St. Petersburg One Progress Plaza 200 Central Avenue, Suite 2300 St. Petersburg, FL 33701 888.821.9191

HOW TO USE THIS REPORT

This is a summary of significant legislation that passed during the 2008 Regular Session of the Florida Legislature.

Please note that this report does not summarize every piece of legislation enacted, nor is it meant to be an exhaustive section-by-section analysis of those bills included. The goal of this report is to provide a general overview of legislative actions that are likely to be of interest to our clients, attorneys, and consultants.

As of this writing, many of the bills in this report are awaiting review of the Governor and are subject to the Governor’s veto authority. The reader is therefore encouraged to check the ultimate status of any bill by visiting the Legislature’s web site (www.leg.state.fl.us). Please select the “Enrolled” (ER) version of the bill. Chapter Law citations and final legislative staff analyses of bills are also available on the Legislature’s web site. This report was compiled in substantial part using public records data from the Florida Senate and the Florida House of Representatives. Photo credits are given to Mark Foley and Meredith Hill, photographers, Florida House of Representatives.

CARLTON FIELDS GOVERNMENT CONSULTING TEAM

Rheb H. Harbison, Jr. Nancy G. Linnan Senior Government Consultant Tallahassee Office Managing Partner Tallahassee − 850.513.3615 Chair, Government Law & Consulting [email protected] Practice Group Tallahassee − 850.513.3611 [email protected]

Beth A. Vecchioli Dana M. Watson Senior Government Consultant Legislative Administrative Assistant Tallahassee − 850.513.3609 Tallahassee − 850.425.3383 [email protected] [email protected]

GOVERNMENT LAW AND CONSULTING PRACTICE GROUP

Every individual or business entity is touched by, regulated, or otherwise shaped to some degree by government. The right to petition government and participate in the process of law making is as old and vital to democracy as is the U.S. Bill of Rights that guarantees it. The lawyers and government consultants of Carlton Fields’ Government Law and Consulting Practice Group are highly experienced in dealing with all levels of government on behalf of our clients. We have a thorough understanding of Legislative Lobbying, government’s inner workings -- and an Cabinet & State Agencies Representation extensive network of personal and We identify, track, analyze, and summarize professional relationships -- within legislative and Cabinet proposals and government to effectively address a wide political and policy considerations in both variety of legislative, administrative, the legislative and executive branches, procedural, and political issues. assessing their impact on client operations. We offer our clients access to a We also assist in drafting legislation and comprehensive and skilled team for strategic amendments to legislation, help pass or planning and counseling, governmental defeat legislative proposals, and use our affairs, lobbying, regulatory and extensive political relationships to advocate administrative law, growth management and a client's position efficiently. We counsel land use, education and elections law. clients regarding political contributions and Business Planning the regulatory reporting requirements of for Government Services political contributions. We help our clients develop new strategies We represent our clients before state and positions. We can assist in investigating agencies and the Cabinet on a wide range opportunities, or planning and advocating of issues such as rule and policy making, legislative, permitting or regulatory solutions. permitting, professional and business We consult on all possible approaches to licensure. accomplishing a client’s goals in connection Government Contracts Consulting with governmental privatization, We provide guidance and technical public/private partnerships, appropriations, assistance in responding to government financing, and economic development procurement documents, or when programs. challenging recommendations for award through a bid protest. We have extensive experience in government contracting, and can help our clients understand and address

the risks of negotiating, contracting, and Government Law and Consulting performing under agreements for goods or Practice Group Members services. Biographical information on any of our practice group members may be obtained by Legal and Planning Resources visiting the Carlton Fields web site at We assist in comprehensive planning and www.CarltonFields.com. land use regulations; developments of regional impact; local zoning; government Nancy G. Linnan, Chair Tallahassee contracting; public construction projects; H. Ray Allen Tampa representation of government entities and Erin E. Banks St. Petersburg Steven J. Brodie Miami special districts; local taxing districts; Steven A. Capriati Tampa government operations, financing and Martha Harrell Chumbler Tallahassee management; water resources; utilities; and Cristin A. Conley Tampa transportation, including seaports, airports, Kelly A. Cruz-Brown Tallahassee and others. Christine Riley Davis Tallahassee Administrative Michael P. Donaldson Tallahassee In addition to our legislative activities, we Robert C. Downie, II Tallahassee Lawrence M. Gold Atlanta work closely with agencies and commissions W. Douglas Hall Tallahassee of Florida’s executive branch and of local Rheb H. Harbison, Jr.*^ Tallahassee governments throughout the state. We Lynda J. Harris West Palm Beach represent regulated industries and others in Ben J. Hayes St. Petersburg administrative proceedings, parliamentary, Donald E. Hemke Tampa regulatory, or other procedural areas. We Daniel Hernandez Tallahassee also assist in obtaining proper permits and Daniel C. Johnson Orlando licenses, and advise clients on the range of Gary W. Johnson Orlando options available for addressing concerns Nicole Kibert Tampa raised by agency rulemaking and rule Laurel E. Lockett Tampa Jason M. Murray Miami challenges. Scott P. Pence Tampa Local Government Representation Kim Pullen * Tallahassee We also represent our clients before local R. Terry Rigsby Tallahassee governments in areas including, but not Roger D. Schwenke Tampa limited to, policy-making, procurement of Christopher Smart Tampa goods or services, permitting, licensure, land Jackson E. Sullivan* Tallahassee Stacey K. Sutton West Palm Beach use, compliance with local regulations. Darrin Taylor Tallahassee John E. Taylor Atlanta Kenneth A. Tinkler Tampa

Diane Triplett Tampa Beth A. Vecchioli* Tallahassee Joseph Verdone* West Palm Beach

Mike Wall Tampa Thomas E. Warner West Palm Beach Richard Winters* Tallahassee *Non-lawyer; ^Lobbyist

Note: Mr. Harbison is a member of the Florida Association of Professional Lobbyists.

FLORIDA LEGISLATURE COMPENSATES WRONGFULLY CONVICTED ALAN CROTZER

Three years of effort ended April 10, 2008, when Governor Charlie Crist signed legislation compensating Alan Jerome Crotzer for nearly 25 years of wrongful incarceration in Florida’s prison system. In a ceremony including Crotzer, his family, lawmakers, and members of his Carlton Fields pro bono team, Governor Crist put pen to paper and signed House Bill 7037 into law. The measure provides financial compensation to Crotzer, who was Members of the pro bono team who worked wrongfully incarcerated for 24 years, six closely with Crotzer include: John R. Blue, months, and 13 days for a crime he did not former chief judge of the Second District commit. He was exonerated in January Court of Appeal and shareholder at Carlton 2006 as a result of DNA evidence. Fields; Nancy Linnan, Tallahassee office managing shareholder; Rheb Harbison, Carlton Fields has represented Crotzer pro senior government consultant; former firm bono since his release in 2006, committing shareholder Mike Olenick, who now serves more than 500 hours of legal time. The firm as director of government affairs at The provided Alan Crotzer with legal Morganti Group, Inc.; and Alia Faraj- representation during the initial stages of the Johnson, former communications director to claims process when the House and Senate Gov. Jeb Bush and currently vice president at appointed Special Masters to hear the case. Ron Sachs Communications. They also represented him before members of the legislature and facilitated meetings “There are so many people to thank and I with key policy-makers. am overwhelmed by all of the support I have received from good people across the state,” “Our firm has a rich history in pro bono said Alan Crotzer. “I never lost faith in work, helping to right legal wrongs,” said people or in the process. I am a happy and Gary Sasso, president and CEO, Carlton blessed man.” Fields. “We thank the Governor, leadership in the House and Senate, the bill sponsors In early April, the House of Representatives and members of the Florida Legislature for voted unanimously to award Alan Crotzer their commitment to Mr. Crotzer’s cause and $1.25 million - $50,000 dollars for every the opportunity they have afforded him to year he spent in prison. The full Senate also start a new life with his family.” approved the measure which will also provide Crotzer a free education.

CARLTON FIELDS, P.A.

TABLE OF CONTENTS

CORPORATE, CONSTRUCTION, BUSINESS & PROFESSIONAL REGULATION

CS/CS/HB 105...... 3 Secondary Metals Recyclers

CS/SB 276 ...... 4 Food Donation by Public Food Service Establishment

CS/HB 419...... 4 Business Entities

CS/CS/HB 601...... 5 Department of Business and Professional Regulation

CS/CS/CS/HB 653...... 6 Corporate Income Tax Credit Scholarship Program

CS/CS/HB 679...... 7 Residential Properties

HB 797...... 8 Public Accountancy

CS/CS/SB 854 ...... 9 Unemployment Compensation/Day Laborer

CS/HB 951...... 9 Beverage Law

CS/HB 995...... 10 Community Associations

CS/CS/CS/SB 996 ...... 11 Cosmetology

CS/CS/SB 1076 ...... 12 Motor Vehicles and Mobile Homes/Destruction

CS/HB 1105 ...... 12 Community Associations

i 2008 LEGISLATIVE REPORT

CS/CS/HB 1167...... 13 Reduced Cigarette Ignition Propensity Standard and Firefighter Protection Act

CS/CS/SB 1310 ...... 14 Sellers of Travel

HB 1489 ...... 14 Residential Tenancies

SB 1986 ...... 14 Homeowners' Associations/Lien Claims

CS/CS/CS/SB 2016 ...... 15 Public Lodging and Food Service Establishments

CS/SB 2582 ...... 16 Motor Vehicle Dealers

CS/CS/SB 2598 ...... 17 Impaired Medical Practitioners/Treatment Programs

CS/CS/SB 2760 ...... 17 Dentistry

HB 5047 ...... 18 Department of Business & Professional

TAXATION

CS/HB 909 ...... 21 Ad Valorem Taxation

CS/HB 1059...... 21 Exemptions from the Tax on Sales, Use, and Other Transactions

CS/HB 1373...... 22 Qualified Defense Contractor Tax Refund Program

CS/SB 1588 ...... 22 Property Taxation

HB 5065...... 24 Corporate Income Tax

ii CARLTON FIELDS, P.A.

EDUCATION WORKFORCE

SB 186 ...... 27 University of South Florida Polytechnic

CS/CS/SB 242 ...... 27 Schools/Single-gender Classes

CS/CS/SB 428 ...... 27 Workforce Innovation

CS/CS/SB 526 ...... 28 Interscholastic Extracurricular Activities

CS/CS/SB 610 ...... 28 Physical Education/Grades 6-8

CS/HB 623...... 29 School Food Service Programs

SB 642 ...... 29 School/Multiple Birth Siblings/Classroom Placement

HB 669 ...... 30 School Safety

CS/CS/SB 696 ...... 30 Community Colleges

CS/HB 1203 ...... 31 Interstate Compact on Educational Opportunity for Military Children

CS/CS/SB 1276 ...... 32 Educational Facilities Construction

CS/HB 1313 ...... 32 Students with Disabilities

CS/CS/CS/SB 1712 ...... 33 Ethics in Education

CS/CS/SB 1716 ...... 34 Postsecondary Education

iii 2008 LEGISLATIVE REPORT

CS/SB 1774 ...... 35 Postsecondary Student Fees

CS/CS/SB 1906 ...... 35 Alternative Credit High School Courses

CS/SB 1908 ...... 36 Sunshine State Standards

HB 5083 ...... 37 Education

HB 7067 ...... 38 Virtual Education

CS/HB 7105...... 39 Postsecondary Distance Learning

GENERAL GOVERNMENT

HB 35 ...... 43 Social Worker Identification

CS/HB 165 ...... 43 Agency Inspectors General

SB 230...... 44 State Symbols/Fla. Cracker

CS/SB 630 ...... 44 Vehicle Registration/Family First Contribution

CS/HB 687...... 44 Service-Disabled Veteran Business Enterprises

CS/CS/SB 704 ...... 45 Open Government Act/Administrative Procedures

CS/HB 853 ...... 46 Cemetery Lands

CS/CS/SB 866 ...... 46 Elections

iv CARLTON FIELDS, P.A.

CS/HB 987 ...... 46 Cultural and Historical Programs

CS/SB 1026 ...... 47 Unemployment Compensation Benefits

CS/SB 1070 ...... 47 Intergovernmental Cooperation

CS/SB 1378 ...... 47 Display of Flags/Homeowners' Associations

CS/SB 1502 ...... 48 Leased Property for Public Purposes

SB 1558 ...... 48 Official State Anthem and Official State Song

CS/SB 1694 ...... 48 911 Emergency Dispatchers

CS/CS/SB 1702 ...... 49 Department of Agriculture and Consumer Services

CS/SB 1892 ...... 49 State Data Center System

CS/SB 2222 ...... 50 Citrus

CS/SB 2310 ...... 51 Economic Stimulus

SB 2820 ...... 52 Juvenile Offenders/Residential Facilities

HB 5001...... 52 Appropriations Act

HB 5003 ...... 53 Implementing the 2008-2009 Appropriations Act

HB 7109 ...... 56 Small Business Regulatory Relief

v 2008 LEGISLATIVE REPORT

GROWTH MANAGEMENT, ENVIRONMENT, NATURAL RESOURCES, REAL PROPERTY, ENERGY & TRANSPORTATION

CS/SB 464 ...... 61 Transfer Fee Covenants/Real Property

CS/HB 527 ...... 61 Environmental Site Redevelopment

CS/CS/SB 542 ...... 62 Land Acquisition and Management

CS/HB 547 ...... 70 Water Pollution Control

CS/CS/SB 682 ...... 71 Department of Transportation

HB 961 ...... 75 Cleanup of Sites Contaminated by Petroleum

CS/CS/SB 1094 ...... 75 Gambling Vessels/Clean Ocean Act

CS/CS/SB 1286 ...... 77 Fish and Wildlife Conservation Commission

CS/CS/SB 1294 ...... 77 Department of Environmental Protection

CS/CS/SB 1302 ...... 78 Wastewater Disposal/Ocean Outfalls

CS/HB 1427 ...... 79 Beach Management

CS/SB 1552 ...... 80 Everglades Restoration Bonds

CS/SB 1706 ...... 81 Developments of Regional Impact

CS/CS/CS/SB 1992 ...... 81 Department of Highway Safety and Motor Vehicles

vi CARLTON FIELDS, P.A.

CS/SB 2052...... 85 Water and Wastewater Utilities

HB 5067 ...... 86 State Infrastructure

CS/HB 7059...... 87 Protection of Wild and Aquatic Life

HB 7019 ...... 88 Real Property

CONSTRUCTION & ENERGY

CS/HB 697 ...... 91 Building Standards

CS/HB 727 ...... 93 Firesafety

CS/SB 794 ...... 93 Underground Utilities/Excavations and Demolitions

HB 7135 ...... 94 Energy

HEALTH CARE & HEALTH INSURANCE

CS/CS/SB 370 ...... 113 Personal Care Attendant Program

HB 461 ...... 114 Health Flex Plans

CS/HB 535...... 114 Health Insurance

CS/CS/SB 564 ...... 114 Automated External Defibrillators

CS/HB 607...... 115 Orthotics, Prosthetics, and Pedorthics

vii 2008 LEGISLATIVE REPORT

CS/CS/SB 686 ...... 116 Nursing Facilities

CS/HB 803 ...... 116 Licensure of Psychologists

HB 989 ...... 116 Physician Assistants

CS/CS/SB 1012 ...... 117 Health Insurance Claims Payments

SB 1092 ...... 118 Alzheimer's Disease/Medicaid Waiver Program

CS/CS/SB 1360 ...... 118 Pharmacy Technicians

CS/HB 1363 ...... 119 Controlled Substances

CS/HB 1429 ...... 119 Mental Health and Substance Abuse Services

CS/CS/SB 1488 ...... 120 Health Care Consumer's Right to Information Act

CS/CS/SB 1648 ...... 120 HIV Testing/Informed Consent

CS/SB 2326 ...... 121 Certificates of Need/General Hospitals

CS/CS/SB 2534 ...... 122 Health Insurance / Uninsured

CS/CS/CS/SB 2654 ...... 124 Autism Spectrum Disorder

HB 5045 ...... 125 Workers’ Compensation Medical Services and Supplies

HB 7049 ...... 125 Drugs, Devices and Cosmetics

viii CARLTON FIELDS, P.A.

CS/HB 7083 ...... 125 Health Care Fraud and Abuse Home Health Agency Licensure

INSURANCE & FINANCIAL SERVICES

CS/CS/HB 343...... 131 Financial Services

CS/HB 643 ...... 131 Foreclosure Fraud

CS/SB 648 ...... 133 Insurable Interest/Insurance Contracts

CS/HB 743 ...... 134 Mortgage Fraud

SB 874 ...... 134 Title Loans/Regulation/Consumers

CS/HB 937 ...... 134 Title Insurance

CS/SB 966 ...... 135 Automated Teller Machine Transactions

CS/CS/SB 2012 ...... 136 Insurance Policies

CS/CS/SB 2082 ...... 137 Insurance

CS/CS/CS/SB 2158 ...... 139 Money Service Businesses

CS/SB 2462 ...... 142 Group Self-insurance Funds

CS/CS/SB 2860 ...... 142 Insurance

HB 5049 ...... 150 Mortgage Broker's Licenses

ix 2008 LEGISLATIVE REPORT

CS/HB 5057 ...... 151 Insurance Capital Build-Up Incentive Program

HB 7103 ...... 152 Mitigation Enhancement

LEGAL, CRIMINAL JUSTICE & THE JUDICIARY

CS/HB 29 ...... 155 DNA Testing

CS/CS/HB 43 ...... 155 Criminal Activity

HB 61 ...... 156 Offenses Against Officers

HB 85 ...... 156 Lewd or Lascivious Molestation

CS/SB 92 ...... 157 Persons Injured by Crime/Medical Treatment

CS/HB 137 ...... 157 Operating a Motor Vehicle

SB 154 ...... 157 Pedestrian Safety/Driver Requirements

CS/HB 173 ...... 158 Controlled Substances

HB 313 ...... 158 Dating Violence

CS/HB 321 ...... 159 Murder of Law Enforcement Officers

SB 366 ...... 159 Elderly Persons & Disabled Adults/Abuse & Neglect

CS/HB 435 ...... 159 Trust Administration

x CARLTON FIELDS, P.A.

HB 489 ...... 160 Sexual Violence

CS/SB 502 ...... 161 Missing Persons/Investigation

CS/HB 503 ...... 162 Preservation & Protection of the Right to Keep & Bear Arms in Motor Vehicles Act of 2008

CS/HB 537 ...... 163 Offense of Voyeurism

CS/HB 559 ...... 163 Material Harmful to Minors

CS/SB 622 ...... 164 Orders of No Contact with Victims of Crimes

CS/HB 663 ...... 164 Termination of Parental Rights

CS/HB 739 ...... 165 Guardian Advocates for Persons with Developmental Disabilities

CS/CS/CS/SB 756 ...... 166 Wrongful Incarceration Compensation

CS/HB 773 ...... 167 Judicial Sales

CS/HB 799 ...... 167 Theft of Copper or Other Nonferrous Metals

CS/SB 948 ...... 167 Concealed Weapons Licenses

CS/HB 1037 ...... 167 Escrow Agents

CS/HB 1417 ...... 168 Counterfeit Goods

CS/CS/CS/SB 1442 ...... 168 Exploited Children

xi 2008 LEGISLATIVE REPORT

CS/SB 1474 ...... 169 Dissolution of Marriage

CS/HB 1509 ...... 169 Community Service for Infractions of Noncriminal Traffic Offenses

CS/SB 1790 ...... 170 State Judicial System

CS/SB 1988 ...... 170 Drivers' Licenses/Suspended, Revoked, or Canceled

CS/SB 2438 ...... 171 Spaceflight/Informed

CS/CS/SB 2532 ...... 171 Child Custody and Support

CS/CS/SB 2676 ...... 172 Citizens' Right-to-Know Act/Pretrial Release

HB 7073 ...... 172 Child Support Enforcement

HB 7113 ...... 172 Department of Law Enforcement

PUBLIC RECORDS

CS/CS/SB 766 ...... 177 Public Records/Judicial and Administrative Officials

CS/HB 863 ...... 177 Public Records/Direct-Support Organization/DVA

CS/SB 1042 ...... 177 OGSR/Putative Father Registry/Department of Health

SB 1046 ...... 178 OGSR/Foster Parents/DCFS

CS/HB 1141 ...... 178 Public Records/Sexual Violence Victim

xii CARLTON FIELDS, P.A.

CS/SB 1618 ...... 178 OGSR/Victims of Child Abuse or Sex Crimes

CS/SB 1630 ...... 179 OGSR/Department of Agriculture & Consumer Services

CS/SB 2224 ...... 179 OGSR/Paratransit Services

CS/SB 2610 ...... 179 Public Records/Organ & Tissue Donor Registry

HB 7033 ...... 180 Public Records/Complaint of Discrimination

HB 7053 ...... 180 OGSR/Florida Kidcare Program

INDEX ...... 183

xiii

2008 Florida Legislature Post-Session Report

CORPORATE, BUSINESS & PROFESSIONAL REGULATION

CARLTON FIELDS, P.A.

CORPORATE, BUSINESS & PROFESSIONAL REGULATION

CS/CS/HB 105 Secondary Metals Recyclers Secondary metals recyclers purchase used metals typically salvaged from building demolition, remodeling, etc. and refine those metals into raw materials which can be used to make new products. Secondary metals recyclers are currently regulated under Ch. 538, Part II, F.S. All secondary metals recyclers in

Florida must be registered with the Department of Revenue as provided in s. 538.25, F.S. CS/CS/HB 105 amends and expands sev- Speaker pro-tem Marty Bowen, R-Winter Haven, and House Speaker Marco Rubio, R-Miami, center-far right, eral aspects of the laws relating to secondary listen as Gov. Charlie Crist delivers the annual state-of- metals recyclers. the-state address on opening day. (House photo by Meredith Hill.) Specifically, the bill:

o Eliminates the requirement that transactions must be greater than $10 in o Enhances the penalties sellers of regu- value to be regulated. lated metals face for giving false information to secondary metals recy- o Expands the definition of regulated clers; increasing the penalties to sec- metals to include stainless steel beer ond and third degree felonies (based kegs. on the dollar amount received by the seller). o Requires secondary metals recyclers to gather more in depth information o Requires the Department of Revenue to about the sellers of regulated metals. release the names of any registered secondary metals recycler to a law o Enhances the penalties secondary met- enforcement official upon request. als recyclers face for repeated non- compliance with statutory require- o Requires that all regulated metals be ments; increasing the penalty from a transported to a secondary metals re- first degree misdemeanor to a third cycler in a motor vehicle; eliminating degree felony. current exceptions.

o Creates a third degree felony if a per- o Requires payments for all transactions son acts as a secondary metals recy- in excess of $1000 be made by cler and is not registered with the De- check. partment of Revenue. o Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008.

3 2008 LEGISLATIVE REPORT

CS/SB 276 Food Donation by Pub- to require that all limited partners con- lic Food Service Establishment sent to the expulsion of a limited partner; The bill creates the “Jack Davis Florida Res- taurant Lending a Helping Hand Act.” o Clarifies that a statement of cancellation is not required to be filed when a cer- The bill amends existing provisions regard- tificate of conversion has been filed for ing liability for canned or perishable food that partnership; distributed free of charge by expanding the definition of "perishable food" to include o Enables mergers between Florida pro- foods that have been prepared at a licensed fessional corporations or limited liabil- public food service establishment. The bill ity companies and out-of-state pro- provides protection from criminal and civil fessional corporations or limited li- liability to public food service establishments ability companies; and that donate perishable foods apparently fit Provides that any residue moneys after for human consumption to a bona fide chari- o payment of creditors in the assign- table or nonprofit organization for free. This ments process shall be returned to the immunity from criminal penalty or civil dam- assignor debtor. ages does not apply if an injury is caused by the gross negligence, recklessness, or inten- Florida law establishes several forms of busi- tional misconduct of the donor or gleaner. ness organization including corporations (ch. 607, F.S.), limited liability companies (ch. This bill was signed into law on April 22, 608, F.S.), not-for-profit corporations (ch. 2008, by the Governor, Ch. 08-25, L.O.F. 617, F.S.), partnerships (Part II, ch. 620, F.S), The effective date of this bill is July 1, 2008. limited partnerships (Part I, ch. 620, F.S.), and professional corporations and limited liability CS/HB 419 companies (ch. 621, F.S.). These various Business Entities forms of organization are governed in terms This bill amends several statutory provisions of their formation, operation, merger, con- relating to Florida business organizations. In version, and dissolution. particular, the bill: In 2005, the Legislature amended the law o Corrects terms related to mergers and governing mergers of different types of busi- conversions to make them consistent ness organizations and conversions from one throughout the relevant statutes; type of organization into another. CS/HB 419 amends provisions of Chapters 607, o Eliminates duplicative filing require- 608, 617, and 620, F.S., to correct terms ments for business entities either merg- related to mergers and conversions to make ing or converting to other forms of them consistent with the changes made in business entities; 2005.

o Clarifies requirements for execution of The merger and conversion provisions appli- certain certificates of conversion; cable to each form of business organization require multiple filings of certificates or arti- o Modifies the management rights of cles of merger and certificates of conversions general partners in limited partnerships with the Department of State when only Flor-

4 CARLTON FIELDS, P.A. ida businesses are involved in the transaction. assets remaining after all claims have been For example, when a limited liability com- paid in full shall be paid to the assignor (i.e., pany (LLC) converts into a partnership, the the person or entity who assigned its assets law requires that a certificate of conversion for distribution). be filed both under the statutory provisions governing LLCs and the provisions governing Subject to the Governor’s veto powers, the partnerships. CS/HB 419 amends provisions effective date of this bill is July 1, 2008. of Chapters 607, 608, 617, and 620, F.S., to eliminate these duplicative filing require- CS/CS/HB 601 ments. Department of Business and Profes- sional Regulation Section 620.1406, F.S., governs the management rights of general partners, and ap- The bill contains numerous modifications relat- proval rights of other partners, in a limited ing to several programs under the Department partnership. Under this section, all general of Business and Professional Regulation partners in the organization must approve the (DBPR), including the repeal of the land sales expulsion of a limited partner. CS/HB 419 program. This bill de-regulates the sale of amends this section to require that all limited subdivided land by the DBPR under the Divi- partners also consent to the expulsion of a sion of Florida Land Sales, Condominiums limited partner. and Mobile Homes. The bill re-names the Division of Florida Land Sales, Condomini- Section 621.113, F.S., prohibits any ums and Mobile Homes as the Division of merger or consolidation of a professional Florida Condominiums, Timeshares and Mo- corporation or limited liability company or- bile Homes. The bill amends numerous statu- ganized under Chapter 621, F.S., with an tory provisions for purposes of conforming out-of-state professional corporation or lim- references. ited liability company. The organizations governed by this chapter offer professional The bill revises and clarifies various insurance services that require the organizations’ requirements for condominiums. It maintains shareholders or members to obtain a license the current requirement for adequate insurance or legal authorization, such as certified pub- but uses the term “adequate hazard insurance” lic accountants, attorneys, doctors, and den- to specify the type of insurance that is re- tists. CS/HB 419 amends s. 621.13, F.S., to quired and maintains the current provision allow the merger or consolidation of a Florida that permits three or more communities to ob- professional corporation or limited liability tain insurance for an amount equal to the company with an out-of-state professional probable maximum loss for a 250 year wind- corporation or limited liability company. The storm event. bill also amends s. 621.06 and 621.10, F.S., The bill specifies that a director of a condo- to remove language that would conflict with minium who abstains from voting on any ac- this merger/consolidation authority. tion taken on any association corporate mat- Chapter 727 establishes a procedure for the ter shall be presumed to have taken no posi- administration of insolvent estates. Section tion with regard to the action. 727.114, F.S., prioritizes distributions from The bill provides that condominium expenses the estate for claims and expenses. CS/HB or items required by the federal, state or local 419 amends this section to provide that any

5 2008 LEGISLATIVE REPORT government, including fire safety equipment after two years. The bill deletes the require- and water and sewer services, are common ment that classroom rosters for real estate expenses whether or not identified as com- courses be submitted to the DBPR. mon expenses in the declaration of condominium, articles of incorporation, or the bylaws The bill allows applicants to take the electri- of the association. cal/alarm contractor certification examination prior to review by the Electrical Contrac- The bill amends requirements to include a tor’s Licensing Board of the applicant’s ex- condominium unit owner’s designee or a perience and training qualifications. The bill mortgagee designee among the persons that authorizes the board to provide by rule the are entitled, upon request, to a certificate number of times per year the applicant may signed by an officer regarding the assess- take the examination. ments owed by the unit owner to the association. The bill provides that the fee for the cer- The bill provides for amateur mixed martial tificate must be set forth in the certificate. arts (MMA) events in Florida to be sanctioned and supervised by MMA amateur sanctioning The bill provides that the distribution of any organizations approved by the Florida State sale proceeds to purchase money lienholders Boxing Commission. It adds language grant- on units must not exceed a unit’s share of the ing the boxing commission rule authority to proceeds. require amateur fighters to compete in a certain number of amateur fights prior to licen- The bill creates estoppel certificates for home- sure. owners’ associations. The bill requires that the homeowners’ associations must provide a Subject to the Governor’s veto powers, the ef- certificate signed by an officer or agent of fective date of this bill is July 1, 2008 except the association stating all of the assessments as otherwise provided. and other moneys that are owed to the association by the parcel owner. CS/CS/CS/HB 653 The bill allows an application for the licen- Corporate Income Tax Credit Schol- sure examination to be submitted for ap- arship Program proval in the last 100 hours of training by a The bill revises provisions of the Corporate pregraduate of a licensed cosmetology pro- Income Tax Credit (CITC) Scholarship Pro- gram. If an applicant passes all parts of the gram. This program provides an income tax examination for licensure as a cosmetologist, credit for corporations making eligible con- the bill allows him or her to practice during tributions to nonprofit scholarship funding the time between passing the examination and organizations (SFOs). SFOs award scholar- receiving a copy of the license if he or she ships to students from families with limited fi- practices under the supervision of a licensed nancial resources, i.e., the family’s household cosmetologist in a licensed salon. income may not exceed 185 percent of the Federal Poverty Level. The bill eliminates the currently required background check for farm labor contractors that The bill’s revisions to the program include the are federally registered. The bill authorizes the following: DBPR to close deficient license application files for all categories of applicants for licensure

6 CARLTON FIELDS, P.A.

o The criteria for a scholarship award is ship funding source; and amended to afford first-time eligibility to a student who is currently placed, o Identify strategies to encourage pri- or who was placed within the previ- vate schools that accept scholarship ous fiscal year, in foster care, and to students to participate in the statewide the sibling of a current scholarship reassessment program. The OPPAGA cipient if the family’s household in- must submit a report of its findings come does not exceed 200 percent of and recommendations to the Gover- Federal Poverty Level. nor and Legislature by December 1, 2008. o The maximum annual tax credit that may be granted to taxpayers contribut- Subject to the Governor’s veto powers, the ing to the program is increased from effective date of this bill is June 30, 2008. $88 million to $118 million. CS/CS/HB 679 o The maximum scholarship award Residential Properties amount is increased from $3,750 to $3,950 and the authorized use of the A homeowners' association is a corpora- award is expanded from tuition and tion responsible for the operation of a textbook expenses to tuition and community in which voting membership is fees for a private school. made up of parcel ownership and in which membership is a mandatory condition of par- o A SFO that has operated under the cel ownership, and which is authorized to program for at least three years and impose assessments for violations of the gov- that did not have any negative finan- erning documents. A condominium is a form cial findings in its most recent audit is of ownership of real property created pursu- authorized to retain up to three per- ant to ch. 718, F.S., which is comprised en- cent of taxpayer contributions for tirely of units that may be owned by one or administrative expenses. more persons, and in which there is, appurtenant to each unit, an undivided share in o A provision is added to clarify that common elements. This bill: a taxpayer who has made or who makes an eligible contribution to a o Removes the requirement that the De- SFO will not lose the tax credit retroac- partment of Health regulate swimming tively if a court holds any portion of pools owned by a homeowners' asso- the statute creating the program un- ciation with 32 or less parcels. A simi- constitutional. lar exception was already in law for condominium association of 32 or The bill also requires the Office of Program less units. Policy Analysis and Government Account- ability (OPPAGA) to: o Requires additional disclosure to members of a homeowners' associa- o review the advisability and net fiscal tion if the association budget does not impact of increasing of the maximum budget for deferred expenditures. tax credit in future years and of authorizing the use of insurance premium taxes as an additional scholar-

7 2008 LEGISLATIVE REPORT

o Prohibits a director, officer or committee completion of a comprehensive licensure ex- member of a homeowners' association amination. from receiving compensation for service to the association. However, re- In order to take the CPA examination, certain imbursement for out of pocket ex- education qualifications must be met including penses, recovery of insurance pro- a baccalaureate degree plus at least 30 se- ceeds, or compensation authorized in mester or 45 quarter hours of formal educa- advance by a majority vote of the tion in excess of the hours required for a de- owners are not prohibited. gree. This is commonly referred to as the 5th year/150 hour requirement. An applicant for o Provides that a fine greater than licensure may substitute five years of work ex- $1,000 by a homeowners' association perience for the extra education credits re- against a parcel owner may become a quired beyond the baccalaureate degree. lien on the property. In order to take the CPA examination, certain o Requires that an elected director of a education qualifications must be met including condominium association or a home- a baccalaureate degree plus at least 30 se- owners association must certify in writ- mester or 45 quarter hours of formal educa- ing within 30 days of being elected that tion in excess of the hours required for a de- he or she has read the governing docu- gree. This is commonly referred to as the 5th ments of the association as well as the year/150 hour requirement. An applicant for relevant statutes. licensure may substitute five years of work experience for the extra education credits re- o Provides for pre-suit mediation or pre- quired beyond the baccalaureate degree. suit arbitration for disputes between homeowners' The bill allows an applicant (often a student) to sit for the examination for licensure prior o Provides that three or more condomin- to achieving a college degree. The applicant ium associations may form a self- is required to have completed 120 semester insurance fund to cover insurance de- hours (or equivalent number of quarter ductibles. hours). Though this is the normal number of hours for a degree, the applicant is not re- Subject to the Governor’s veto powers, the quired to actually receive the degree or to effective date of this bill is July 1, 2008. complete the 5th year/150 hour requirement (to apply and sit for the examination) (these HB 797 standards, and others, are required to be Public Accountancy met for eventual “licensure”). A certified public accountant (CPA) is regu- Currently, an applicant to take the CPA ex- lated under the jurisdiction of the Board of Ac- amination must, in addition to education, meet countancy (board) within the Department of statutory “good moral character” require- Business and Professional Regulation ments. The bill removes the good moral (DBPR), Division of Certified Public Account- character standard from the requirements to ants. Qualifications for “licensure” include qualify for the examination and requires the meeting the requirements for good moral good moral character standard as a quality character, formal education, and successful to be approved for “licensure.” The bill cre-

8 CARLTON FIELDS, P.A. ates a new standard to be met in order to be printed on a paycheck, included in a pay “licensed.” Beginning on January 1, 2009, envelope, or otherwise provided in writing at an applicant for “licensure” must have one the end of each assignment. year of work experience to go along with the other requirements for “licensure.” The board Subject to the Governor’s veto powers, the is authorized to establish work experience effective date of this bill is July 1, 2008. guidelines (similar to the authority of the board to approve work experience guide- CS/HB 951 th lines as an alternative to the 5 year/150 Beverage Law hour education standard). The Division of Alcoholic Beverages and Subject to the Governor’s veto powers, the Tobacco [Division] in the DBPR is responsi- effective date of this bill is July 1, 2008. ble for regulating the conduct, management, and operation of the manufacturing,

packaging, distribution, and sale within the CS/CS/SB 854 state of all alcoholic beverages. Florida's al- Unemployment Compensation/Day coholic beverage law provides for a struc- Laborer tured three-tiered distribution system: manu- This bill creates a specific provision provid- facturer, wholesaler, and retailer. The re- ing for the disqualification of employees of tailer makes the ultimate sale to the con- day labor pools from receiving unemploy- sumer. Alcoholic beverage excise taxes are ment compensation benefits under certain cir- collected at the wholesale level based on cumstances. The specific provision would inventory depletions and the state sales tax is disqualify a day laborer from receiving un- collected at the retail level. employment compensation benefits if, without good cause, the day laborer fails to re- Activities between the license groups are port on the next business day to obtain a new extensively regulated and constitute the ba- assignment. sis for Florida's "tied house evil" law. Not- withstanding the overall premise, the Bever- The day labor pool is required to provide the age Law contains a series of exceptions to day laborer with notice at the time of hire that the structured three-tiered distribution system. he or she must report in person for reassignment the next business day following conclu- This bill prohibits alcohol beverage importers, sion of each assignment. Unemployment primary American sources of supply, brand benefits may be denied for failure to report owners or registrants, or any broker, its sales in person. The bill defines the time of hire as agent or sales person, from obtaining licen- when a day laborer accepts the first assign- sure as retail vendors. It includes importers ment following completion of an employment and primary American sources of supply in application with the labor pool. The bill re- the current “tied house evil” prohibitions, quires the labor pool to provide notice to the which currently prohibits licensed manufac- temporary employee upon the conclusion of turers and distributors from giving gifts or the latest assignment that work is available loans to retail vendors. the next business day and that the temporary The bill defines a brand owner as one who employee must report for reassignment the directly or indirectly controls any brand, next business day. The bill specifies that such brand name, or label of alcoholic beverage notice must be given by means of a notice

9 2008 LEGISLATIVE REPORT but is not a manufacturer, importer, distributor, o Requires condominium association primary source of American supply, brand records must be made available to registrant, or broker, its sales agent or sales unit owners within 45 miles of the person. condominium property and provides for sanctions and civil penalties for any Subject to the Governor’s veto powers, the person who intentionally destroys as- effective date of this bill is July 1, 2008. sociation records.

o Provides that an association may not CS/HB 995 waive the financial reporting require- Community Associations ments for more than 3 consecutive A condominium is a form of ownership of years. real property created pursuant to Ch. 718, F.S., which is comprised entirely of units o Provides that units owned by the as- that may be owned by one or more per- sociation may not vote. sons, and in which there is, appurtenant to o Provides that board meetings must be each unit, an undivided share in common held within 45 miles of the condomin- elements. Speaker Marco Rubio created the ium property, unless the bylaws pro- Select Committee on Condominium & Home- vide for meeting at a place more owners Association Governance in January than 45 miles from the condomin- 2008. This act is a result of the work of the ium. select committee. This act makes numerous changes to condominium law, including: o Prohibits co-owners from serving at the same time on the board of ad- o Requires community association man- ministration of an association of 10 agement firms to be regulated. or more units. o Provides the Department of Business o Requires a condominium association of and Professional Regulations with more 10 or more units to utilize the statutory power to investigate complaints regard- election procedures. ing Community Association Managers (CAMs) and community association o Provides that a person may not serve management firms. on the board if he or she is convicted of a crime that would be a fel- o Expands the duties of the Regulatory ony in Florida and has not had his or Council of Community Association her civil rights restored for at least five Managers. years. Limits condominium association o Adds that officers and directors of a board members to two year terms. condominium association must perform o Removes from office a director or offi- his or her duties in good faith and cer that is more than 90 days delin- provides that such officers and direc- quent in assessments owed to the as- tors may be liable for monetary dam- sociation. ages if he or she fails to perform or breaches a duty. o Suspends from office a director or officer who has been charged with felony

10 CARLTON FIELDS, P.A.

theft or embezzlement involving asso- governance form, prepared by the ciation funds. state, which form will generally edu- cate the buyer about the role of a o Requires a notice of intent to file for re- condominium board of administration, ceivership to all unit owners at least 30 the responsibility of the board, main- days prior to a unit owner filing for tenance, and the owner's legal rights receivership. and remedies.

o Provides that the board of administra- This bill was signed into law on May 1, tion may install hurricane shutters or 2008, by the Governor, Ch. 08-28, L.O.F. other forms of hurricane protection. The effective date of this bill is October 1, 2008. o Requires a condominium greater than 3 stories in height to have a structural inspection at least every 5 years, CS/CS/CS/SB 996 unless the requirement is waived by a Cosmetology majority vote of the owners. The bill redefines the practice of cosmetology o Allows the display of a religious object including hair stylist services, esthetician ser- of a certain size on the mantle or frame vices, and nail technician services. The of a unit owner's door. term “esthetician” relates to non-medical, cosmetic facial services. The bill permits a o Requires an association to provide a person to obtain a license as a hair stylist, unit owner notice before a lien for un- esthetician, or nail technician. A cosmetolo- paid assessments may be filed. gist may provide all three of these specialty services. The bill defines the services that Prohibits Strategic Lawsuits Against o each class of license will perform. For exam- Public Participation (SLAPP suits). ple, persons licensed as a cosmetologist or o Provides emergency powers for con- as a specialist under current law will condominiums when a state emergency tinue to hold their current license or registra- is declared. Requires a director or offi- tion. cer to disclose any financial interest of The bill increases minimum education re- the director or officer in the contractor quirements. The minimum education hours before voting to award a contract. required, consisting of training from the hair o Limits the jurisdiction of the Depart- stylist, esthetician, and nail technician curric- ment of Business and Professional ula for licensure as a cosmetologist will increase from 1,200 to 1,500 hours. o Regulation after turnover to financial matters and election disputes. The bill requires 1,000 minimum hours of education for a hair stylist and increases the mini- o Changes the Advisory Council on Con- mum number of hours required for an estheti- dominiums to the Community Associa- cian from 260 to 600, and the minimum hours tion Living Study Council. for a nail technician from 240 to 350. The bill permits a student who has enrolled and be- o Requires that prospective condomin- gan his or her education before July 1, ium purchasers receive a copy of a 2008, to take the exam to be licensed as a

11 2008 LEGISLATIVE REPORT cosmetologist upon completion of 1,200 Motor Vehicles (DHSMV) within 24 hours hours of training. after receiving the derelict vehicle.

The bill re-defines the term “salon,” and re- This bill requires that vehicles must be acquires that applicants be at least 16 years of companied by a valid certificate of title, a age and have a high school degree, a gen- valid salvage certificate of title, or a valid eral equivalency diploma, or have passed an certificate of destruction, all issued in the ability-to-benefit test approved by the United name of the seller or properly endorsed over States Secretary of Education. The bill per- to the seller. If these documents are not mits licensure by endorsement and permits available, the bill requires a “derelict motor cosmetology and cosmetology specialty vehicle certificate” to be completed by the services to be performed outside of a li- owner of the motor vehicle or motor home, censed salon under certain circumstances. It the owner’s authorized transporter, and the also permits persons holding a valid cosme- salvage motor vehicle dealer or metal recy- tology license in any state to conduct de- cler. This option is available for motor vehi- partment store demonstrations. cles with or without all major parts that are valued under $1,000, are at least 10 years The bill makes it unlawful for any person in the old, and are in such condition that their practice of cosmetology to use or possess a highest value is in their sale, transport, or device containing a razor blade to remove, delivery to a salvage yard or recycler. scrape, or cut calluses from the hands and feet. The bill also implements new reporting procedures for salvage motor vehicle dealers or Subject to the Governor’s veto powers, the ef- metals recyclers, including electronic notifi- fective date of this bill is July 1, 2008 except cation to the Department of Highway Safety as otherwise provided. and Motor Vehicles (DHSMV) within 24 hours after receipt of the motor vehicle. CS/CS/SB 1076 Subject to the Governor’s veto powers, the Motor Vehicles and Mobile effective date of this bill is October 1, 2008. Homes/Destruction

This legislation provides definitions, enhanced penalties, and additional requirements related CS/HB 1105 to the dismantling or destruction of motor vehi- Community Associations cles and mobile homes by salvage motor vehi- A receiver is a disinterested person appointed cle dealers and secondary metal recyclers. by a court, or by a corporation or other person, for the protection or collection of prop- The bill is designed, in part, to close loop- erty that is the subject of the diverse holes in current law whereby towed vehicles claims. Like other entities, condominium as- can be sold as scrap to salvage yards and sociations, cooperative associations, and metal recyclers without the actual owner’s homeowners’ associations may be placed into permission. It requires salvagers and recyclers receivership. This bill provides for notice of a to hold so-called “derelict” vehicles for three unit or parcel owner’s intent to file a petition full business days, excluding weekends and for the appointment of a receiver to all unit holidays, before destroying them, and to no- owners or parcel owners of an association at tify the Department of Highway Safety and least 30 days before the filing of the petition.

12 CARLTON FIELDS, P.A.

This bill also requires additional notice to The bill requires manufacturers to conduct or unit owners or parcel owners should a peti- obtain testing; to certify cigarettes; and to pro- tion for receivership be granted. vide records.

Condominium, cooperative and homeown- The division conducts inspections; approves ers' associations may impose a lien against markings; inspects records and cigarettes; an owner for unpaid assessments, which lien destroys forfeited cigarettes; and reports the may be foreclosed. Current law requires 30 effectiveness of the program and recom- days notice before the filing of a lien against mended changes to the Legislature. The bill a member of a homeowners' association. specifies division rule-making authority. This bill requires condominium associations and cooperative associations to similarly The Fire Marshal conducts or sponsors testing; give 30 days notice of intent to file a lien. approves alternative test methods; and may inspect records. The bill specifies Fire Mar- Subject to the Governor’s veto powers, the shal rule-making authority. effective date of this bill is July 1, 2008. The Attorney General may file civil action and inspect records and cigarettes. CS/CS/HB 1167 Reduced Cigarette Ignition The bill includes language that it should be Propensity Standard and Firefighter interpreted and implemented consistent with Protection Act the New York Standards and the interpreta- tion and implementation of those standards Fires caused by smoking occur when a smoker as they exist on March 1, 2008. drops or improperly disposes of a lighted cigarette. ‘Cigarette ignition propensity’ refers The bill preempts all other state and local to the likelihood a cigarette will ignite a laws that conflict with the provisions of the fire. Currently, Florida does not regulate the bill. The bill is automatically repealed if pre- fire safety of cigarettes. The Division of Alco- empted by federal law. The effective date of holic Beverages and Tobacco (division) of the the bill is January 1, 2010. Department of Business & Professional Regu- lation (DBPR) is responsible for enforcing No appropriation has been provided and the chapter 210, F.S., relating to taxation of costs to the division and the Fire Marshal are tobacco products, and aids in the enforce- expected to be minimal. ment of the Florida Clean Indoor Air Act. Subject to the Governor’s veto powers, the The bill creates the Reduced Cigarette Ignition effective date of this bill is January 1, 2010. Propensity Standard and Firefighter Protection Act, requiring cigarettes sold in the state to be certified as meeting certain specified performance standards. The bill adopts a standard developed by the state of New York that requires testing, certification and marking of cigarettes.

13 2008 LEGISLATIVE REPORT

CS/CS/SB 1310 o Adds additional violations of the Act. Sellers of Travel o Adds an administrative remedy and a This bill amends the Florida Sellers of Travel civil penalty that the department may Act (Act), ss. 559.926-559.939, F.S., by impose for violation of the Act. increasing state oversight for those profiting from selling travel, which originates in Flor- o Adds a criminal penalty (a felony of the ida, to terrorist states as defined by the third degree) for violation of the Act. It United States Department of State. This bill re- increases certain annual registration quires sellers of travel, selling travel originating fees and bond amounts for sellers of in Florida, to any terrorist state, to comply travel that sell travel, originating in with additional requirements and higher fees, Florida, directly to any terrorist state. not currently in the Act. Subject to the Governor’s veto powers, the Specifically, the bill: effective date of this bill is July 1, 2008.

o Creates definitions for “Certifying HB 1489 party” and “Terrorist state,” and revises Residential Tenancies the definition of “Prearranged travel, The bill amends the Florida Residential Land- tourist-related services, or tour-guide lord and Tenant Act to permit residential services.” lease agreements to impose an early termination fee or liquidated damages on tenants o Creates certification requirements for who terminate their leases before the expira- sellers of travel and classifies such sell- tion of a lease. The total liquidated damages ers within three different categories or any early termination fee cannot exceed based on each seller’s level of in- two months’ rent and is in addition to any volvement in selling travel, originating unpaid rent and other charges accrued in Florida, directly to terrorist states. through the end of the month in which the o Creates requirements for sellers of landlord takes possession of the dwelling unit travel that change the scope of their and charges for any damages to the dwell- business activities after they have ing unit. been certified. Subject to the Governor’s veto powers, the o Creates different levels of security effective date of this bill is upon becoming a bonds that sellers must purchase ac- law. cording to seller classifications - the more involved in selling travel origi- SB 1986 nating in Florida directly to terrorist Homeowners' Associations/Lien states, the higher the required bond. Claims o Eliminates current alternatives to secu- A homeowners' association is a Florida cor- rity bonds. poration responsible for the operation of a subdivision in which voting membership is o Increases the requirements for waiver of made up of parcel ownership in the subdi- bond by the Department of Agriculture vision. Many, but not all, homeowners' as- and Consumer Services (department). sociations may impose regular assessments

14 CARLTON FIELDS, P.A. that are a lien against each parcel, and that nontransient establishment, nontransient oc- may be foreclosed upon if not paid. As to the cupancy and nontransient. It includes room- lien of an association, and foreclosure inghouses within the definition of transient thereof, this bill provides forms and proce- and nontransient apartments for purposes of dures for notice of a claim by a homeown- licensure and amends the definition for ers' association and an objection to such a transient apartments to include establish- claim. The filing of an objection obligates ments in which more than 25% of the units the association to foreclose the lien within are available for transient occupancy. Room- 90 days or, failing that, to waive the right to inghouses would still be defined as a sepa- foreclose on that lien. rate classification of public lodging establishments. Provides that the holder of a first mortgage who forecloses on the mortgage is liable for The bill removes the requirements for public up to twelve months of assessments or 1% of lodging establishments to provide a copy of the original mortgage amount, whichever is chapter 509 for the public onsite. The bill less, in past due assessments. removes the requirements for public food service establishments to provide restrooms for Gives further direction and a form for use in guests, requiring instead that adequate fa- qualifying offers, which are a means for an cilities be provided for employees and to owner to forestall foreclosure of an associa- provide separate restrooms for each gender. tion lien in exchange for an agreement to The bill shortens the statutory timeframe for pay the outstanding balance by a certain managers to complete a basic food protection date. practices test from within 90 days of employment to within 30 days. Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. The bill alters the division’s duties and abilities by: CS/CS/CS/SB 2016 o Granting the division specific authority Public Lodging and Food Service to collect fines and enforce final orders Establishments through additional sanctions, including The Division of Hotels and Restaurant (divi- fines, suspension or revocation of li- sion) within the Department of Business and censes and refusal to issue or renew Professional Regulation (DBPR) is charged with licenses. protecting the public health, safety, and welfare by enforcing the provisions of ch. 509, o Removing the division’s role in updat- F.S., and other laws relating to the inspec- ing and enforcing the Florida Fire Pre- tion and regulation of public lodging estab- vention Code. The division is re- lishments and public food service establish- quired to report readily apparent ments. fire code violations to firesafety officials. The bill includes nontransient lodging, defined as establishments renting or advertised as o Providing that restrooms are to be regularly rented for at least 30 days or 1 maintained in accordance with the calendar month, within the definition of Florida Building Code as approved by “public lodging establishments.” It defines local authorities and removing the di-

15 2008 LEGISLATIVE REPORT

vision’s ability to provide exceptions cure period before such termination may be by rule. effected.

The department will no longer collect fees for The bill substantially rewords provisions re- restroom variances but does expect to increase garding manufacturer reimbursement for the collection of both unpaid and new fines. warranty parts and labor installed or performed by dealers for warranty customers. All Subject to the Governor’s veto powers, the compensation is deemed untimely after 30 effective date of this bill is July 1, 2008. days.

Specific criteria are provided for determin- CS/SB 2582 ing appropriate reimbursement amounts for Motor Vehicle Dealers parts. If the parties cannot agree on a per- This bill amends s. 320.64, Florida Statutes, centage markup over the dealer’s cost, the relating to protections for franchised motor value is determined by finding the greatest of vehicle dealers against certain actions by (i) the mean percentage markup for all parts automobile manufacturers resulting in loss or charged by the dealer in 50 consecutive suspension of a dealer's license to do busi- retail customer repairs within a 3-month pe- ness in Florida. riod, (ii) the manufacturer’s highest sug- gested retail or list price, or (iii) an amount The bill provides that manufacturers may not equal to the dealer’s markup over cost result- offer discriminatory inducements (including ing in the same gross profit percentage for but not limited to grants, loans, or favorable warranty parts as the dealer would have re- supplies of vehicles) to franchised dealers to ceived for customer retail sales, as evidenced coerce relocation or improvement of dealer by the dealer’s financial statements for the facilities or take any adverse action against a preceding two months. dealer who refuses to relocate or improve facilities. Reasonable standards for upkeep Specific criteria are also provided for deter- and cleanliness are permitted. mining appropriate reimbursement for warranty labor performed by dealers. If the The bill modifies a burden of proof and a parties cannot agree on an agreed hourly presumption relating to dealer export of motor labor rate, the labor rate is determined by vehicles. Manufacturers must prove that the finding the greater of (i) the dealer’s retail dealer had actual knowledge of the labor rate, determined by dividing the buyer's intent to export the vehicle. The bill amount of the dealer’s retail labor sales by declares that vehicle registration in any U.S. the number of retail customer repair hours state creates a conclusive presumption that that generated such sales, or (ii) an amount the dealer did not have actual knowledge of equal to the dealer’s markup over cost that the buyer’s intent to export the vehicle. results in the same gross profit percentage for The bill also modifies a burden of proof relat- labor hours performed under warranty as the ing to franchise termination by providing that dealer receives for labor related to retail cus- a manufacturer must prove by a preponder- tomer repairs. ance of the evidence that the majority owner The bill prohibits manufacturers from auditing or dealer-principal had actual knowledge of or modifying compensation payments outside fraudulent acts. It also requires a notice and of predetermined schedules, and prohibits

16 CARLTON FIELDS, P.A. manufacturers from attempting to recover any vides immunity from civil liability to the medi- costs under s. 320.64, Florida Statutes, by cal and osteopathic schools for the referral of modifying Florida dealers' participation in a student to a consultant or for disciplinary ac- state, regional, or national bonus or incen- tions that adversely affect the status of the tive programs for dealers; by imposing student. separate surcharges on wholesale parts; reducing dealers' gross margins on other The bill grants sovereign immunity to an products or services; or other means. impaired practitioner consultant, its officers, employees, and persons acting at the Subject to the Governor’s veto powers, the direction of the consultant for the limited pur- effective date of this bill is upon becoming pose of an emergency intervention, when the law. consultant is unable to perform the intervention, for actions taken within the scope of

the contract with the department. The bill CS/CS/SB 2598 specifies contractual conditions that must Impaired Medical exist in order for sovereign immunity to be Practitioners/Treatment Programs granted. The bill expands the list of persons who may be retained by the Department of Health (de- The bill requires the Department of Financial partment) to work as a consultant for the im- Services to defend any claim, suit, action, or paired practitioners’ treatment program to proceeding against the consultant for acts or include an entity employing a medical direc- omissions arising out of the consultant’s du- tor who must be a practitioner or recovered ties under the contract. practitioner who holds a Florida license as a Subject to the Governor’s veto powers, the medical physician, osteopathic physician, or effective date of this bill is July 1, 2008. nurse.

The bill authorizes the impaired practitioner CS/CS/SB 2760 program consultant, at the school’s request, to Dentistry provide services to students enrolled in schools for medical physicians or physician’s assis- The bill creates a health access dental li- tants, osteopathic physicians or physician’s cense to allow an out-of-state dentist to prac- assistants, nurses, or pharmacists who are tice dentistry in a health access setting without alleged to be impaired as a result of the mis- taking the state exam. “Health access set- use or abuse of alcohol or drugs or due to a tings” are defined to mean programs and mental or physical condition. The department institutions of the Department of Children and is not responsible under any circumstances Family Services, the Department of Health, for paying the costs of care provided by the the Department of Juvenile Justice, nonprofit approved treatment providers, and the de- community health centers, Head Start centers, partment is not responsible for paying the and federally qualified health centers. costs of the consultants’ services provided for The bill creates an application process, li- students. cense renewal requirements, and license The bill specifies additional criteria the de- revocation requirements for the health access partment must consider when adopting rules dental license. The Board of Dentistry is re- for approval of treatment providers. It pro- quired to grant a health access dental license

17 2008 LEGISLATIVE REPORT to practice dentistry in health access settings if The bill establishes continuing education re- an applicant meets certain educational and quirements and limits the Board of Dentistry’s practice standards, files an appropriate authority to require an applicant for licensure application, and pays the required fees. as a dental hygienist who graduated from a The bill provides an individual with a health nonaccredited dental college or school to access dental license the ability to take the complete additional coursework only if the Florida dental license examination if these applicant has failed the initial licensure ex- conditions are met, rather than require the amination. individual to successfully complete the national exam within 10 years of the date of Subject to the Governor’s veto powers, the application. The bill specifies that the failure effective date of this bill is January 1, 2009. of an individual with a health access dental license to limit the practice of dentistry to HB 5047 health access settings is the unlicensed prac- Department of Business & tice of dentistry. Professional Regulation The bill requires the Board of Dentistry to adopt This bill has 4 main provisions: rules to administer the application process, Continues the privatization of the renewal requirements, and revocation re- o Board of Architecture & Interior De- quirements for a health access dental license, sign within the Department of Business and provides a sunset date of January 1, & Professional Regulation (DBPR). The 2015, for the health access dental license board will be required to submit an statute. annual report to the Legislature. The bill requires a licensed dentist who uses Provides that any DBPR board that the services of a dental laboratory to furnish o seeks privatization must obtain ap- the laboratory with a written prescription proval from the Legislature through that, in addition to existing requirements, general law. must include the license number of the dentist and a specification of materials to be o Eliminates the duplication of duties be- contained in each work product. The bill re- tween the DBPR and the Department of quires the laboratory to disclose to the pre- Financial Services related to the Fire scribing dentist in writing the materials used Prevention Code. and all certificates of authenticity for each product with the point of origin of manufac- o The bill also updates requirements for ture and the address and contact information the annual reports from the Divisions of of the dental laboratory. The bill further speci- Hotels & Restaurants and Land Sales, fies that a dental laboratory accepting pre- Condominiums & Mobile Homes. scriptions from dentists is liable for damages caused by inaccuracies in material disclo- Subject to the Governor’s veto powers, the sure, certificates of authenticity, or point of effective date of this bill is July 1, 2008. origin provided by the dental laboratory to the prescribing dentist.

2008 Florida Legislature Post-Session Report

TAXATION

CARLTON FIELDS, P.A.

TAXATION CS/HB 909 Ad Valorem Taxation The bill changes the composition of Value Adjustment Boards in all counties to include two citizens: one appointed by the county and one appointed by the school board. It precludes the county attorney from representing the VAB. The Department of Revenue is required to develop a uniform policies and procedures manual to be used before all VABs and is required to offer training for the special magistrates. The department is required to keep Rep. Joyce Cusack, D-DeLand, left, and Democratic records on annual percentage increase in leader Dan Gelber, D-Miami Beach, confer with total non-voted millage levied by taxing en- Speaker Marco Rubio, R-Miami, on the House floor. (House photo by Meredith Hil.). tity. This information will be placed on the DOR website and the existing websites of property could actually be used for that highest county property appraisers. Special magis- and best use. The bill precludes property apprais- trates will be required to preserve the record ers from establishing a minimum acreage below of all hearings and make written recommen- which they will not grant an agricultural classifica- dations to the VABs which include findings of tion. The Legislature also states its express intent that fact, conclusions of law, and the reason for taxpayers never have the burden of proving that the sustaining or changing the assessed value of property appraiser’s assessment is not supported by the property appraiser for all petitions heard. any reasonable hypothesis of a legal assessment. When all petitions, complaints, appeals and disputes have been heard, the county clerk, Subject to the Governor’s veto powers, the who is currently required to publish a public effective date of this bill is September 1, notice of the findings and results of the 2008. board, will now include in the results the number of parcels for which petitions were CS/HB 1059 filed but not considered by the board be- Exemptions from the Tax on Sales, cause of petitions being withdrawn or set- Use, and Other Transactions tled. The bill amends s. 212.08, F.S., by allowing The bill clarifies that in determining the high- nonprofit cooperative hospital laundries to est and best use of a property (one of the provide laundry supplies and services to eight factors considered in determining the businesses that are not members of the co- assessed valuation), the property appraiser operative, pursuant to declaration of emer- must take into account the legally permissible gency under s. 252.36(2), F.S., and a written use of the property, as well as any zoning emergency plan of operation executed by the changes, concurrency requirements, or per- members of the cooperative, without invalidat- mits which would be necessary before the

21 2008 LEGISLATIVE REPORT ing or causing the cooperative’s certificate of as $8,000 per job if the project is in a rural exemption to be denied. county or enterprise zone and the average wage per job is 200 percent of the average The bill further provides that any member that private sector wage in the area. changes its Internal Revenue Code s. 501(c)(3) status must divest all participation in The bill further amends the QDC program the nonprofit cooperative hospital laundry by: within 90 days after the change in status. o Allowing local governments to use

donated or discounted land and Subject to the Governor’s veto powers, the buildings to qualify as local match; effective date of this bill is July 1, 2008. o Simplifying the application process CS/HB 1373 by removing the requirement that a Qualified Defense Contractor Tax Re- notarized signature be placed on an fund Program application and removes the re- This bill expands s. 288.1045, Florida Stat- quirement that an applicant estimate utes, relating to the Qualified Defense Con- the amount of tax refunds claimed tractor tax refund program (QDC), adminis- each year; tered by the Office of Tourism, Trade and o Removing the annual report require- Economic Development (OTTED) within the ment from s. 288.1045, Florida Stat- Executive Office of the Governor, to allow for utes, because this requirement was space flight businesses or entities with space duplicative in nature; and flight contracts to qualify for QDC tax refunds. The bill also makes several other o Delaying the sunset provision from changes to the QDC program that will affect 2010 to 2014. both space flight business contracts and defense contracts. Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. The bill provides definitions for the terms

“space flight business,” “space flight business contract,” “new space flight contract,” CS/SB 1588 and “consolidation of space flight contract.” Property Taxation In 2007, the Legislature enacted two laws The QDC tax refund is an incentive designed governing the taxation of property. Ch. to grow Florida’s high-technology and de- 2007-321, L.O.F., limited local govern- fense-related industries. Currently, approved ments’ property tax revenue growth by im- projects are eligible to receive up to $5,000 in posing maximum millage rates based upon tax refunds for every job created. growth in state-wide per capita personal income and growth in the tax base due to new This bill amends the amount of tax refund construction and additions within each juris- available to qualified applicants to match the diction. tiered system used to award tax refunds under the Qualified Targeted Industry Tax Re- The bill implemented the provisions of fund Program, raising the maximum tax re- Amendment 1 to the Florida constitution that fund per job created from $5,000 to as high was approved by the voters January 29,

22 CARLTON FIELDS, P.A.

2008. This amendment increased the home- valorem revenues relative to the millage rates stead exemption by $25,000, except for that could be levied by majority vote under school district taxes; allowed homestead current law. The difference between the property owners to transfer up to $500,000 maximum millage rates that can be levied by of the Save-Our-Homes benefits to their next majority vote under current law and under the homestead (portability); provided a $25,000 provisions of this bill is estimated to be $1.1 exemption for tangible personal property; and billion in tax revenues in Fiscal Year 2008- limited annual assessment increases for speci- 09. fied nonhomestead real property to 10%, except for school district taxes. The issues addressed by the bill that were identified in the department’s report include: The bill also directed the Department of Revenue (department) to report, by March o Information needs of the Department 1, 2008, the results of the implementation of of Revenue and the Revenue Estimat- the millage rate limitations, including issues ing Conference to properly oversee that may have needed to be addressed by and administer the property tax system, the legislature and improvements in the in- and estimate impacts; formation required to be provided by local o Clarification that votes of the “member- governments, property appraisers, and tax ship” of the governing board are collectors. The department’s report also in- needed to override the millage limita- cluded issues that have arisen in the im- tions; plementation of the provisions of Amend- ment 1. o Classification of some Downtown De- velopment Authorities as dependent This bill addresses the issues identified in the districts; department’s report. Issues include drafting errors in the legislation, ambiguities, and un- o Clarification of the calculation of the foreseen circumstances not addressed in the special provision for the public health original bills. trust in Miami-Dade County;

In addition, this bill contains special provi- o Requiring a study of the effects of all sions for determining the maximum millage the recent statutory and constitutional rates for the 2008-2009 Fiscal Year. changes on the TRIM notice require- Amendment 1 to the Florida Constitution, ments; adopted on January 29, 2008, contained provisions that reduced the property tax o Providing an administrative appeal base. Under current law, local governments process for portability issues; will be allowed to levy a millage rate to re- o Clarification of the rules for the trans- cover the tax loss due to the loss of tax base fer of portability benefits when there by a majority vote of the governing body. are multiple owners; This bill will require a two-thirds vote to recover the loss. o Clarification of the rules for the application of the Tangible Personal Prop- Taxing authorities that levy millage rates not erty $25,000 exemption; exceeding the rates that can be levied by majority vote will experience a decline in ad

23 2008 LEGISLATIVE REPORT

o Deletion of the application require- The bill does not adopt all changes to the In- ment for the 10% assessment growth ternal Revenue Code made during 2007. It limitation; disallows sections 102 and 103 of H.R. 5140, the Economic Stimulus Act of 2008, o Requiring notification by the property Public Law 110-185, for purposes of calcu- owner to the Property Appraiser lating Florida taxable income. These fed- when ownership or control of prop- eral provisions grant temporary increases in erty subject to the 10% limitation the expensing and depreciation allowances changes. for certain capital assets put into service during 2008. Subject to the Governor’s veto powers, the effective date of this bill is upon becoming law, Florida’s Corporate Income Tax code also except as otherwise provided, and applies to requires corporations to make estimated the 2008 and subsequent tax rolls. payments of a portion of their annual income tax liability. The requirement that the HB 5065 payments are to be made on or before the Corporate Income Tax first day of certain months during a corporation’s taxable year is changed slightly to re- Florida’s Corporate Income Tax code follows quire these payments before the first day of the Federal Internal Revenue Code (IRC) by the month. Most notably, estimated payments using federal rules and using federal taxable that would otherwise be made on July 1, income as the starting point for the Florida 2009 will be made in June 2009 and Income Tax calculations. Florida Statutes available for appropriation in the state’s FY define specific terms as they apply to Flor- 2008-09, representing a largely one-time ida’s corporate income tax code, including speed-up of revenues ($93.8 million). The the term “Internal Revenue Code.” This bill changes regarding estimated tax payments redefines the term to mean those provisions of are effective January 1, 2009. the United States Internal Revenue Code of 1986, as amended, in effect on January 1, Subject to the Governor’s veto powers, the 2008. This change is retroactive to January effective date of this bill is upon becoming a 1, 2008. law and shall apply retroactively to January 1, 2008.

2008 Florida Legislature Post-Session Report

EDUCATION AND WORKFORCE

CARLTON FIELDS, P.A.

EDUCATION & WORKFORCE SB 186 University of South Florida Polytechnic The bill designates the Lakeland campus of the University of South Florida as the “Uni- versity of South Florida Polytechnic.” The Uni- versity of South Florida Polytechnic (USF Poly- technic) will be a separate organizational and budget entity of the University of South Flor- ida (USF).

The bill requires USF Polytechnic to have a Campus Board and a Campus Executive Of- House Democrats stretch and settle in for a long night. ficer. The Campus Board will be comprised of The gridlock continued into the early morning hours four residents of the Polytechnic campus ser- after Republicans refused to take up the minority party’s education amendment. The Democrats re- vice area recommended by the President of sponded by forcing the reading of the entire content of USF and appointed by the USF Board of each bill. (House photo by Meredith Hill.) Trustees. The fifth member of the Campus Board must be selected by the USF Board of students. If a single-gender program is estab- Trustees from among its membership and that lished, the school board must also provide : trustee will serve jointly as a member of the

USF Board of Trustees and the Campus o A single-gender option for students of Board. the other gender; and

The bill requires the Campus Board to submit o A coeducational option. All single- an annual legislative budget request to the USF gender and coeducational options Board of Trustees. The bill provides for USF must be substantially equal in quality. Polytechnic to apply for accreditation from Student participation in a single-gender the Commission on Colleges of the Southern program must be voluntary. Each district Association of Colleges and Schools when school board is required to evaluate its sin- separate accreditation is in the best interest gle-gender programs every two years to en- of the campus. sure compliance with state and federal law.

Subject to the Governor’s veto powers, the This bill became law without the Governor’s effective date of this bill is July 1, 2008. signature on April 24, 2008.

CS/CS/SB 242 CS/CS/SB 428 Schools/Single-gender Classes Workforce Innovation The bill authorizes a district school board This bill permits regional workforce boards to to establish a nonvocational single- be designated as one-stop operators and di- gender class, extracurricular activity, or rect providers of intake, assessment, eligibility school for elementary, middle, or high school determinations, or other direct provider ser-

27 2008 LEGISLATIVE REPORT vices except training services, subject to The FHSAA and participating district school agreement of the chief elected official and the boards must submit a copy of the program’s Governor as specified in 29 U.S.C s. guidelines by August 1, 2008, and a report 2832(f)(2). on the program by January 1, 2010, to the Governor and Legislature. The report must The bill also requires Workforce Florida, Inc., include the number of students who partici- to develop procedures and criteria for a re- pated in the program, the number of students gional workforce board to request permission who transferred to the public school where to be designated as a one-stop operator. It they participated, implementation issues, and specifies that the criteria must include a reduc- recommendations for expanding the program tion in the cost of providing the permitted ser- statewide. Bill provisions establishing the pilot vices. Finally, the bill provides that such per- program are repealed on June 30, 2010, mission shall only last for three years for unless reviewed and reenacted by the Legis- each request. lature.

Subject to the Governor’s veto powers, the Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. effective date of this bill is July 1, 2008.

CS/CS/SB 526 CS/CS/SB 610 Interscholastic Extracurricular Physical Education/Grades 6-8 Activities The bill expands the existing 150 minute The bill establishes a pilot program in Brad- physical education (P.E.) requirement for ford, Duval, and Nassau Counties for the students in kindergarten through grade 5 to 2008-2009 and 2009-2010 academic include students in grade 6 who are en- years. Under the pilot, a private school stu- rolled in a school that contains one or more dent in middle or high school may participate elementary grades. Beginning with the in athletics at the public school zoned for the 2009-2010 school year, the bill requires student’s residence if his or her private that students in grades 6 through 8 take the school is not a member of the Florida High equivalent of one class period per day of School Athletic Association (FHSAA) and physical education for one semester of each does not offer an interscholastic or intrascho- year. The bill deletes language encouraging lastic athletics program. a district school board to provide 225 minutes of P.E. each week for students in grades The pilot program is to be conducted by the 6 through 8. The P.E. requirement may be FHSAA, in cooperation with the district waived for students in kindergarten through school boards in the counties where the pro- grade 5 and students in grades 6 through 8, gram will be implemented. The FHSAA must if they meet one of the following criteria: establish guidelines for program participation that require private school students to meet o The student is enrolled or required to the same standards of eligibility, acceptance, enroll in a remedial course. The stu- behavior, educational progress, and per- dent’s parent indicates in writing to formance applicable to student athletes at- the school that: tending FHSAA member schools. o The parent requests that the student enroll in another course from among

28 CARLTON FIELDS, P.A.

those courses offered as options by fast available for a student who arrives at the school district; or school on the school bus less than 15 minutes before the first bell rings. In addition, the o The student is participating in physi- school must allow the student at least 15 min- cal activities outside the school day utes to eat the breakfast. which are equal to or in excess of the mandated requirement. The bill encourages each school district to provide universal-free school breakfast in all The bill requires a school district to notify a schools and requires district school boards, student’s parent of the waiver options pro- by the beginning of the 2010-2011 school vided in the bill before scheduling the student year, to consider a policy for providing uni- to participate in P.E. versal-free school breakfast for all students in schools in which 80 percent or more of the The bill is cited as the “Don Davis Physical students are eligible for free or reduced-price Education Act. meals. Subject to the Governor’s veto powers, the The Office of Program Policy Analysis and effective date of this bill is July 1, 2008. Government Accountability (OPPAGA) is directed, by January 15, 2009, to issue a CS/HB 623 report that estimates the implementation costs School Food Service Programs of universal-free school breakfast, examines The bill requires each district school board, school meal prices and the efficiency and beginning with the 2010-2011 school year, effectiveness of school district food service to expand the School Breakfast Program programs, identifies best practices and strate- (currently required in elementary schools) to gies for reducing food service costs, evaluates all middle and high schools. Each school dis- the state’s reporting of food service revenues trict is also directed, beginning with the and costs, assesses the methodology used for 2009-2010 school year, to annually set allocating state funds to school district food prices for breakfast meals which cover the service programs, and evaluates the state’s meal costs, except if the district school organizational structure for implementation of board decides to set lower prices. Each the National School Lunch Program, federal school district is also required to annually School Breakfast Program, and federal Sum- provide students and parents with information mer Food Service Program. about the district’s School Breakfast Program. Subject to the Governor’s veto powers, the Each school is directed, to the maximum ex- effective date of this bill is July 1, 2008. tent practicable, to serve breakfast through alternative options described in publications SB 642 of the federal Food and Nutrition Service of School/Multiple Birth the U.S. Department of Agriculture (e.g., Siblings/Classroom Placement prepackaged breakfasts served on school The bill authorizes the parents of multiple birth buses or alternative sites away from the siblings assigned to the same grade level and school cafeteria, such as hallways with high school to request that the school place the sib- student foot traffic). Beginning with the 2009- lings in the same classroom or in separate 2010 school year, a school must make break- classrooms. The school must assign the class-

29 2008 LEGISLATIVE REPORT room placements of multiple siblings as re- cember 1, 2008, each school district is quested by the parents, except if: required to adopt a bullying and harassment policy in substantial conformity with o Factual evidence of performance DOE’s model policy. shows that the siblings should be separated; For the 2009-2010 school year, the bill directs that a school district’s Safe Schools o The request would require the school funding is contingent upon DOE’s approval district to add an additional class to of the district’s bullying and harassment pol- the siblings’ grade level; or icy. The bill specifies that DOE shall approve a district’s policy if it is in substantial con- o After the first grading period following formity with DOE’s model policy. the multiple birth siblings’ enrollment, the principal, in consultation with the Beginning with the 2010 - 2011 school year, teacher of each affected classroom, a school district’s annual allocation of Safe determines that the requested place- Schools funding is contingent upon the dis- ment is disruptive to the school. (A trict’s compliance with requirements for sub- parent may appeal the principal’s de- mitting reports of bullying and harassment to termination according to school dis- DOE as part of the district’s reports of safety trict policy). and discipline data. The bill requires the Commissioner of Education to submit an an- A parent’s requested classroom placement nual report to the Governor and Legislature must be submitted in writing and made at which includes data on the district reports of least 5 days before the first day of each bullying and harassment. school year (or 5 days after the first day of attendance for multiple birth siblings enrolling The bill provides limited civil immunity for a after the first day of school). school employee, volunteer, student, or parent who reports bullying or harassment in good Subject to the Governor’s veto powers, the faith. effective date of this bill is July 1, 2008. Subject to the Governor’s veto powers, the HB 669 effective date of this bill is upon becoming a School Safety law. The bill creates the “Jeffrey Johnston Stand Up for All Students Act” which prohibits the bully- CS/CS/SB 696 ing or harassment of any public K-12 student Community Colleges or employee during a public K-12 education This bill authorizes community college boards program or activity; during a school-related of trustees to enter into short-term financing or school-sponsored program or activity; on contracts for goods, materials, and services a public K-12 school bus; or through a pub- for a term of not more than five years. Pay- lic K-12 computer, computer system, or comments on such contracts must be subject to puter network. an annual appropriation by the board of trustees. The Department of Education (DOE), by Oc- tober 1, 2008, must adopt a model policy prohibiting bullying and harassment. By De-

30 CARLTON FIELDS, P.A.

Community college boards of trustees may CS/HB 1203 pledge capital improvement fee revenues as Interstate Compact on Educational a dedicated revenue source to the repay- Opportunity for Military Children ment of debt with an overall term of not The bill adopts the Interstate Compact on more than seven years and revenue bonds Educational Opportunity for Military Chil- with a term not exceeding 20 years. The dren. This compact was developed by the revenue bonds must be issued by the Division Council of State Governments in cooperation of Bond Finance. The Division of Bond Fi- with the U.S. Department of Defense to en- nance may pledge fees collected by one or able member states to uniformly address more community colleges to secure such educational transition issues faced by military bonds. families. It will govern member states in areas A community college board of trustees may that include school eligibility, program also pledge parking fee revenues as a dedi- placement, enrollment, school record trans- cated revenue source for the repayment of fers, and graduation for the children of relo- debt with an overall term of not more than cated military families. It takes effect when it seven years and revenue bonds with a term is adopted by ten states. As of May 2, not exceeding 20 years. Community colleges 2008, three states have enacted the com- must use the services of the Division of Bond pact; three state legislatures, including the Finance to issue any revenue bonds sup- Florida Legislature, have sent legislation to ported by parking fee revenues. adopt the compact to the Governor; and 13 state legislatures are considering legislation The bill prohibits the use of tuition, financial to adopt the compact. aid fees, the Community College Program Fund, or any other operating revenues of a The compact establishes an Interstate Com- community college to secure revenue bonds. mission on Military Children to administer the compact among member states and will The bill requires community college boards of adopt rules to govern the compact’s opera- trustees to authorize all debt incurred by a dition. The Interstate Commission is to be rect support organization, but permits the trus- comprised of a voting representative from tees to delegate to the board of directors of each member state and ex officio members the direct support organization authority to representing stakeholders. It must meet at approve short term loans and lease purchase least once annually and must annually report agreements with a term of five years or less. to the legislatures, governors, judiciaries, Revenues of the community college may not and state councils of the member states. be pledged to debt issued by direct-support organizations. The bill requires Florida’s Governor to designate: The bill makes the following name changes: Daytona Beach Community College to Day- o A Compact Commissioner to repre- tona Beach College and Indian River Com- sent the state on the Interstate Com- munity College to Indian River College. mission; and

Subject to the Governor’s veto powers, the o A Military Family Education Liaison to effective date of this bill is July 1, 2008. assist military families and the state in implementing the compact.

31 2008 LEGISLATIVE REPORT

As required by the compact, the bill provides The bill also amends law that expands the for the establishment of the State Council on purposes for which a school district’s two-mill Interstate Educational Opportunity for Military funds may be used during the 2008-2009 Children (Council) to coordinate state and fiscal year when the district has complied with local government implementation of, and class size reduction requirements. Under the compliance with, compact requirements. bill, the class size compliance calculation The Council’s membership will consist of need only consider the number of students five voting members: the Commissioner of served in educational facilities operated, Education, the superintendent of the school rather than merely provided, by the district. district with the highest percentage per capita Accordingly, the number of students served in of military children, two appointees by the conversion charter schools need not be in- Commissioner of Education, and one legisla- cluded in the district’s compliance calcula- tive appointee. It will also include the Com- tion. pact Commissioner and the Military Family Education Liaison, who will serve as ex officio, Finally, the bill authorizes community col- nonvoting members. leges located within specified areas of critical state concern to construct dormitories for The bill specifies that its provisions are re- up to 100 students. Such dormitories are ex- pealed two years after its effective date unless empt from the building permit allocation sys- reviewed and saved from repeal by the Legis- tem and may be constructed up to 45 feet lature. The repeal will allow the Legislature to in height if the buildings are otherwise review the compact after the adoption of consistent with the comprehensive plan. The rules by the Interstate Commission. community college must have a hurricane evacuation plan that requires all dormitory Subject to the Governor’s veto powers, the occupants to be evacuated 48 hours in ad- effective date of this bill is July 1, 2008, or vance of tropical force winds and that pro- upon enactment of the compact into law by vides transportation for dormitory occupants nine other states, whichever date occurs during an evacuation. later. Subject to the Governor’s veto powers, the

effective date of this bill is July 1, 2008. CS/CS/SB 1276 Educational Facilities Construction The bill increases the maximum permissible CS/HB 1313 amount for day-labor contracts executed by Students with Disabilities educational boards from $200,000 to The bill updates the terminology used $280,000. Thus, under the bill, a day-labor throughout the Florida K-20 Education Code, project may cost up to $280,000 before which relates to educational programs and other types of contracting processes involv- services for persons with disabilities, in order ing more extensive procurement procedures to reflect the current usage in the field of spe- must be utilized by an educational board. cial education. For example, the bill replaces Further, beginning January 2009, the bill the terms “students with handicapping condi- requires the maximum permissible amount tions” and “mental retardation” with the for a day-labor contract to be annually ad- updated terms “students with disabilities” justed based upon changes in the Con- and “intellectual disability,” respectively. sumer Price Index.

32 CARLTON FIELDS, P.A.

The bill deletes a provision authorizing dis- other instructional personnel and school trict school boards to adopt rules concerning administrators, if the misconduct affects the admission of eligible children 3 years of the health, safety, or welfare of a student; age or older to special education programs and related services. The bill also authorizes o Require the reporting of misconduct to the the State Board of Education to adopt rules Education Practices Commission, if the mis- concerning special programs and other ser- conduct involves an employee in a posi- vices for children with disabilities younger tion that requires educator certification; than 3 years of age. o Prohibit confidentiality agreements that Finally, the bill eliminates a provision that pro- conceal the misconduct of instructional hibits regional autism centers (i.e., Centers for personnel or school administrators who Autism and Related Disabilities) from provid- are fired or resign for misconduct (the bill ing direct medical or pharmaceutical inter- also voids any such agreements); ventions. o Refrain from giving an employment Subject to the Governor’s veto powers, the reference, for instructional personnel or effective date of this bill is July 1, 2008. school administrators who are fired or resign for misconduct, without disclosing the misconduct; and CS/CS/CS/SB 1712 Ethics in Education o Contact the previous employer of applicants before hiring them as instructional The bill creates the “Ethics in Education personnel or school administrators and Act.” If a person has been convicted of any screen the applicants through the Depart- criminal offense, from among a list of of- ment of Education’s educator discipline fenses established by the bill, the person is in- and certification databases for any past eligible, without any exceptions, for educator misconduct. certification or employment as instructional personnel or school administrators in a posi- The bill provides various sanctions for elected tion that requires direct contact with students or appointed school board officials, district in a school district, charter school, the Florida school superintendents, charter schools, and School for the Deaf and the Blind, or private private schools that accept scholarship stu- school that accept scholarship students under dents which knowingly fail to comply with its the Corporate Income Tax Credit Scholarship requirements. Program or John M. McKay Scholarships for Students with Disabilities Program. The bill The bill requires a district school superinten- also requires each of these schools and dis- dent, in consultation with the school principal, tricts to: to suspend instructional personnel or school administrators from their regularly assigned o Adopt standards of ethical conduct for duties, with pay, upon receiving an allegation instructional personnel and school admin- of misconduct by the personnel or administra- istrators and provide training on the stan- tors whose misconduct affects the health, dards; safety, or welfare of a student. In addition, the superintendent must suspend instructional o Require instructional personnel and school personnel or school administrators for their administrators to report the misconduct of

33 2008 LEGISLATIVE REPORT alleged misconduct upon the request of the ment needs. The Florida College System Commissioner of Education. will be comprised of the public postsecondary institutions identified as community The bill specifies that a public officer or em- colleges that grant 2-year and 4-year aca- ployee in any publicly funded retirement plan, demic degrees as provided by law. including the Florida Retirement System, forfeits his or her retirement benefits, except for the The bill establishes the Florida College Sys- return of accumulated contributions, if the offi- tem Task Force for the purpose of developing cer or employee is convicted of using or at- findings and issuing recommendations re- tempting to use the power, rights, privileges, garding the transition of community colleges duties, or position as a public officer or em- to baccalaureate degree-granting colleges ployee to, on or after October 1, 2008, and the criteria for establishing and funding commit a felony sexual battery against a vic- state colleges. The task force will be com- tim younger than age 18 or a felony lewd prised of the Commissioner of Education and and lascivious offense against a victim 11 members appointed by the Commissioner. younger than age 16. The appointees will include seven community college presidents, one state university The bill increases the membership of the Edu- president, the president of an institution that cation Practices Commission (EPC) from 17 to is eligible to participate in the Florida Resi- 25 members and requires each of the com- dent Access Grant Program, the president of mission’s panels convened to hear a com- an institution that is licensed by the Commis- plaint against a teacher or administrator to sion for Independent Education and grants include a parent or sworn law enforcement baccalaureate degrees, and one member at officer. The commission’s authority is ex- large. panded to discipline certificated personnel who knowingly fail to report child abuse or The bill creates the Florida State College report misconduct by instructional personnel Pilot Project for the purposes of recommend- or school administrators which affects the ing to the Legislature: an approval process health, safety, or welfare of a student. Fi- for transition of baccalaureate degree- nally, the bill revises procedures are for the granting community colleges to state col- Department of Education’s investigation of leges; criteria for the transition of institutions complaints filed before the commission. in the Florida College System to state colleges; and a funding model for the Florida Subject to the Governor’s veto powers, the College System. The Florida State College effective date of this bill is July 1, 2008. Pilot Project will be conducted by Chipola Col- lege, Daytona Beach College, Edison College, CS/CS/SB 1716 Indian River College, Miami Dade College, Postsecondary Education Okaloosa-Walton College, Polk College, Santa Fe College, and St. Petersburg Col- This bill establishes the Florida College Sys- lege in collaboration with the Florida Col- tem to maximize open access for students; lege System Task Force. respond to community needs for postsecondary academic education and career degree The bill makes the following name changes: education; and to provide, in a cost-effective Broward Community College to Broward manner, the associate and baccalaureate de- College; Daytona Beach Community College grees that will best meet the state’s employ- to Daytona Beach College; Indian River

34 CARLTON FIELDS, P.A.

Community College to Indian River College; The bill places in statute a requirement for Polk Community College to Polk College; and the University of Miami to submit documenta- Santa Fe Community College to Santa Fe tion each year to the Department of Education College. of an operating agreement with a government- owned hospital meeting specified criteria Subject to the Governor’s veto powers, the prior to the payment of the annual appropria- effective date of this bill is July 1, 2008. tion to the first accredited medical school.

Subject to the Governor’s veto powers, the ef- CS/SB 1774 fective date of this bill is July 1, 2008, except Postsecondary Student Fees as otherwise expressly provided in the bill. The bill makes technical corrections to out-of- state fee provisions for workforce education and community colleges and adds a “grand- CS/CS/SB 1906 father” provision to address changes made Alternative Credit High School during the 2007C Special Session that could Courses impact a community college’s activity and The bill authorizes a pilot project beginning service fee. in the 2008-2009 school year that would enable high school students enrolled in a ca- The bill amends current statutory provisions reer academies to simultaneously earn alter- relating to student financial aid fees in order native credit for Algebra, Geometry, or Biol- to increase the financial aid revenue avail- ogy while completing similar academy able to smaller colleges. The bill permits coursework. For such alternative credit to community colleges to collect up to an addi- be awarded, the bill requires: tional 2 percent from the student financial aid fee if the total revenue generated by the o The career academy coursework to financial aid fee is less than $500,000 rather include the standards for Algebra, than $250,000 as currently authorized. The Geometry, or Biology; and bill also provides more flexibility in the use of financial aid fee revenue. o The student to verify mastery of the standards by passing a Department Effective July 1, 2009, the bill amends the of Education approved end-of-course workforce and community college technology assessment. fees to be consistent with the state university technology fee, which is scheduled to take The pilot project may be offered in up to effect in the 2009-2010 fiscal year. The bill three school districts selected by the Com- increases the maximum technology fee for missioner of Education from applications workforce and community college programs submitted by interested districts. The depart- from $1.80 per credit hour to 5 percent of ment is required to submit a report to the the tuition per credit hour for residents; pro- Governor and Legislature by January 2010, hibits the fee from being included in Bright which includes data for the number of students Futures Scholarship awards; and specifies that receiving alternative credit under the pilot the revenue generated by the fee shall be and which provides recommendations for used to enhance instructional technology re- expanding the use of alternative credit sources for students and faculty. statewide.

35 2008 LEGISLATIVE REPORT

Subject to the Governor’s veto powers, the schedule must require the FCAT to be adminis- effective date of this bill is July 1, 2008. tered later in the school year (not before March 15 for the writing assessment or April

15 for other assessments). The bill also al- CS/SB 1908 lows the commissioner to discontinue out- Sunshine State Standards dated assessments (e.g., high school The bill requires the State Board of Education equivalency test). School districts must pro- to review the Sunshine State Standards, re- hibit each public school from suspending a place them by December 31, 2011, with regular program of curricula in order to ad- “Next Generation Sunshine State Standards,” minister practice tests or engage in other test- and establish a schedule for the periodic revi- preparation activities for a statewide assess- sion of the standards. The Next Generation ment. standards must be rigorous, provide increased content specificity, and establish Finally, the bill includes provisions that: grade-by-grade expectations in kindergar- o Authorize a school to receive Florida ten through grade 8 for language arts, sci- School Recognition Program funds, if the ence, mathematics, and social studies. High school improves two or more letter grades school standards for these subjects may be and maintains the improvement in the fol- organized by grade clusters. The Commis- lowing school year; sioner of Education must develop the proposed standards in consultation with curricu- o Add flexibility in the methods (e.g., direct lar content experts, Florida teachers, and deposit, check, debit card, or purchasing other stakeholders. card) by which funds are distributed to teachers under the Florida Teachers Lead The bill revises the calculation of school Program for the purchase of classroom grades for high schools. Fifty percent of a materials and supplies; high school’s grade continues to be based on student performance on the Florida Compre- o Allow a practical arts course, which incor- hensive Assessment Test (FCAT). porates artistic content and techniques, to satisfy the graduation requirement for one The remaining 50 percent will be based on credit in fine or performing arts; several factors, including high school graduation rates; graduation rates of at-risk students; o Establish the Florida Ready to Work Cre- student participation and performance in Ad- dential, which is awarded as a bronze, vanced Placement (AP), International Bacca- silver, or gold-level credential based on laureate (IB), Advanced International Certifi- the student’s score on specified career cate of Education (AICE), and dual enroll- preparatory assessments; ment courses; and industry certifications. o Allow an educator to obtain certification The bill revises the statewide assessment pro- to teach a world language other than the gram by authorizing end-of-course assess- four languages for which the Department ments to be administered in addition to of Education currently offers a subject FCAT assessments, eliminating the norm- area test through passage of national ex- referenced test sections of the FCAT, and aminations administered by the American revising the types of test items included in the Council on the Teaching of Foreign Lan- FCAT writing assessment. The assessment guages;

36 CARLTON FIELDS, P.A. o Require postsecondary educational institu- o Express legislative intent that the K-20 edu- tions to assign letter grades for dual en- cation accountability system must comply rollment courses and require school districts with the federal Individuals with Disabili- to post the assigned grades to the student’s ties Education Act (IDEA); high school transcript; o Clarify that members of a school advisory o Require a high school diploma to include council may not be employed by the designations for the student’s major area school district; and of interest; completion of four or more ac- celerated college credit courses (AP, IB, o Require school cafeterias to post sanita- AICE, or dual enrollment); career education certificates and inspection reports. tion certification; and the Florida Ready to Subject to the Governor’s veto powers, the ef- Work Credential; fective date of this bill is July 1, 2008, except o Require high schools to evaluate certain as otherwise provided in the bill. students for college readiness before grade 12 using the college placement HB 5083 test, or an equivalent assessment, and, if Education remediation is indicated, provide the stu- The bill amends sections 121.021 and dent with the opportunity for remedial in- 1012.72, Florida Statutes, limiting the Excel- struction before graduation from high lent Teaching Program bonuses to one 10- school; year period and deleting authority to fund o Exempts a school from receiving a school the certification fee, portfolio incentive, and grade (or school improvement rating), if the the Florida Retirement System contribution. number of students tested is less than the In the event of insufficient funds, the mentor- minimum sample necessary for statistical ing bonuses will be prorated; however local reliability and protection of personally school district funds may be used to fund the identifiable student data; bonuses. o Require a school district to forfeit Florida The bill amends sections 220.187 and School Recognition Program funds for 1 1008.22, Florida Statutes, deleting norm- fiscal year if the district fails to assign an referenced test requirements from statute. Ef- alternative school student’s FCAT scores fective for Fiscal Year 2008-09 only, section to the alternative school or “home 1001.451, Florida Statutes, is amended to school,” which the bill defines as the allow for the proration of education consor- school the student would be assigned if tium membership incentive grants. The bill not assigned to an alternative school; amends section 1002.33, Florida Statutes, prohibiting school districts from including o Exempt adult students enrolled in an ap- Merit Award Program funds in the calcula- prenticeship program from completing an tion of school district administrative fees. entry-level examination; Section 1012.225, Florida Statutes, is amended extending by one year, to October o Require each school district to conduct an 1, 2008, the deadline for submitting 2008- annual review of a student’s electronic 09 Merit Award Program plans. Section personal education plan; 1003.03, Florida Statutes, is amended ex-

37 2008 LEGISLATIVE REPORT tending to 2008-09 class size compliance FTE in capital outlay funds to purchase cer- at the school level. The bill amends section tain motor vehicles and to pay property and 1007.271, Florida Statutes, deleting obso- casualty insurance premiums. This statutory lete language concerning reporting dual en- modification expires July 1, 2009. The bill rollment FTE. amends 1013.45, Florida Statutes, requiring the use of prototype design and construction Several revisions relating to the Florida Educa- when a district’s five-year plan includes two tion Finance Program (FEFP) are made to sec- schools in the same grade group. tion 1011.62, Florida Statutes. The current practice for the calculation of FTE for dual Subject to the Governor’s veto powers, the enrollment instruction is codified. The value effective date of this bill is July 1, 2008. of the additional FTE weight calculated for one credit courses is decreased from .24 to HB 7067 .16 for International Baccalaureate, Ad- Virtual Education vanced Placement, and Advanced Interna- tional Certificate of Education programs. Beginning with the 2009-2010 school year, One-half credit courses are decreased from the bill requires school districts to implement .12 to .08. The additional FTE weight of virtual instruction programs. Under the bill, .088 for the completion of high school level each district must offer: algebra courses in middle school is elimi- Full-time virtual courses to students in nated. The requirements for earning the ad- o kindergarten through grade eight. ditional FTE weight for career industry certification are revised to include the highest o Full-time or part-time virtual courses to level of industry certification and a high students in grades nine through 12, school diploma. The industry certification ap- who are in Department of Juvenile Jus- propriation is revised from $30 million to tice, dropout prevention, or career $15 million. School district fiscal year FEFP education programs. revenues are aligned with school district expenditures by requiring that the school tax A school district may operate its own pro- roll used in the FEFP final calculation shall be gram or may contract with providers ap- the tax roll used in the final calculation. Flexi- proved by the Department of Education. Dis- bility to use Instructional Materials and re- tricts may also participate in multi-district search-based reading allocations for aca- contractual arrangements for such programs. demic classroom instruction is extended to A charter school may enter into an agree- 2008-09. The percentage of declining en- ment with the district in which it is located for rollment that is eligible for funding is specified its students to participate in the district’s vir- in the General Appropriations Act. tual instruction program.

The bill amends section 1011.71, Florida The bill establishes district and provider quali- Statutes, revising the capital outlay millage fications, instruction requirements, student eli- cap from 2.0 mills to 1.75 mills and authoriz- gibility and participation requirements, and ing up to .25 mills of the taxable value for assessment and accountability standards. school purposes to be available for lease- The bill also states that funding for a district purchase agreements. The bill extends to virtual instruction program is provided through 2008-09 the flexibility to use up to $65 per the Florida Education Finance Program.

38 CARLTON FIELDS, P.A.

Finally, the bill authorizes districts to begin must submit a report, including recommenda- offering virtual instruction programs in the tions, to the Governor, the Legislature, the 2008-2009 school year, but limits the pro- State Board of Education, the Board of Gov- viders authorized to contract with a district to ernors, and the university and community col- specified entities with prior experience offer- lege boards of trustees no later than March 1, ing virtual courses in Florida. 2009.

Subject to the Governor’s veto powers, the ef- The bill establishes the Florida Higher Educa- fective date of this bill is July 1, 2008, except tion Distance Learning Catalog as an interac- as otherwise provided. tive, Internet-based central point of access to distance learning courses, degree programs,

and resources offered by public postsecond- CS/HB 7105 ary educational institutions. Postsecondary Distance Learning This bill establishes the Florida Distance The bill authorizes community college and Learning Task Force to make recommenda- state university boards of trustees to establish a tions to facilitate access to undergraduate distance learning fee that may be assessed distance learning resources that enable pub- for courses listed in the Florida Higher Educa- lic postsecondary educational institutions to tion Distance Learning Catalog. The amount fulfill their missions while contributing to and of the distance learning fee may not exceed sharing in the distance learning resources of the additional costs of the services provided the Florida Distance Learning Consortium. which are attributable to the development The 9-member task force will be ap- and delivery of the distance learning course. pointed by the chancellors of the Division of The bill requires state universities and commu- Community Colleges and the Board of Gov- nity colleges to prominently display a link to ernors and will be comprised of four mem- the Florida Distance Learning Catalog on the bers from the State University System, four institution’s website. members from the Community College Sys- tem, and the executive director of the Florida Subject to the Governor’s veto powers, the Distance Learning Consortium. The Task Force effective date of this bill is July 1, 2008.

2008 Florida Legislature Post-Session Report

GENERAL GOVERNMENT This section includes legislation relating to: ■ Agriculture ■ Disasters and Emergencies ■ Consumer Services and Protections ■ Economic Development ■ Ethics ■ Elections ■ Government Operations, Powers and Budget ■ Human Services ■ Procurement ■ Security

CARLTON FIELDS, P.A.

GENERAL GOVERNMENT HB 35 Social Worker Identification The bill amends s. 491.003, F.S., to create the definition of “social worker” in the Clini- cal, Counseling, and Psychotherapy Services Act. The bill defines “social worker” to mean a person who has a bachelor’s, master’s, or doctoral degree in social work.

The bill prohibits a social worker from conducting clinical social work unless he or she is licensed or certified pursuant to Chapter Speaker-designate Rep. Ray Sansom, R-Fort Walton 491, F.S. Beach, left, is questioned by Democratic Leader Rep. Dan Gelber, D-Miami Beach, as the House took up the The bill provides title protection for persons 2008-09 budget bill. (House photo by Meredith Hill.) who meet specified criteria as a social worker. The bill requires a social worker to CS/HB 165 have a bachelor’s or master’s degree from Agency Inspectors General an institution accredited by the Council on Social Work Education or an equivalent for- The bill requires each inspector general (IG), eign institution whose equivalency is deter- at the conclusion of any audit of a program mined by the Council on Social Work Educa- or contract that involves an entity contracting tion. The bill provides that it is a misdemeanor with the state, to submit preliminary findings of the first degree for persons to hold them- and recommendations to that entity. The entity selves out to the public, for or without compen- must be advised that they may submit a writ- sation, as a social worker. ten response to the adverse findings within 20 working days. Similarly, the bill requires The bill exempts persons who have used the each IG, at the conclusion of an investigation title “social worker” in their employment, prior that involves an entity contracting with the to July 1, 2007, from provisions of the bill. state, or an individual substantially affected, Employees who provide social work services to submit its findings to the entity or affected under administrative supervision at long-term individual. The entity or individual must be care facilities licensed by the Agency for advised that they may submit a written re- Health Care Administration are also exempt sponse to the adverse findings within 20 from the provisions of the bill. days. Responses to adverse findings and the IG’s rebuttal, if any, are to be included in the Subject to the Governor’s veto powers, the final IG report. effective date of this bill is July 1, 2008. The bill further requires each IG to provide to

the agency head all written complaints concerning the duties or responsibilities of the office of the inspector general received from the subjects of investigations who are indi-

43 2008 LEGISLATIVE REPORT viduals substantially affected or entities con- CS/HB 687 tracting with the state. In addition, for agen- Service-Disabled Veteran Business cies under the Governor’s jurisdiction, the Enterprises agency IG must report to the Chief Inspector Current Florida law does not contain state General all written complaints or alleged contracting set-asides, goals, or prefer- misconduct concerning the office of the IG ences to specifically benefit small businesses or its employees. owned and operated by service-disabled Subject to the Governor’s veto powers, the veterans. effective date of this bill is July 1, 2008. This bill creates a certification process within the Department of Management Ser- SB 230 vices (DMS) for small business enterprises State Symbols/Fla. Cracker owned and operated by service-disabled veterans (SDVBE). The certification process SB 230 designates the Florida Cracker Horse is substantially similar to the certification as the official state horse and the Loggerhead process implemented by DMS for minority Turtle as the official state water reptile. A re- business enterprises (MBEs). Potential bene- peal date of July 1, 2018, is provided, unless fits of certification include business promo- reviewed and reenacted by the Legislature tion through the MyFloridaMarketPlace before that date. online purchasing system, first tier referrals Subject to the Governor’s veto powers, the to state agencies, special email notices effective date of this bill is July 1, 2008. about purchasing opportunities, networking activities, and technical assistance training.

CS/SB 630 If a certified SDVBE bids on a state contract, Vehicle Registration/Family First the bill requires the state agency to award Contribution the contract to the SDVBE if each bid is CS/SB 630 requires that application and equal with respect to all relevant considera- renewal forms for motor vehicle registration tions. However, if a certified SDVBE and and driver’s license, renewal driver’s license another business that is eligible for a differ- and duplicate driver’s license applications ent statutory vendor preference (such as a include an option to make a voluntary contri- MBE) submit bids that are equal with re- bution of $1 to Family First, a nonprofit or- spect to all relevant considerations, the bill ganization located in Tampa, Florida. A vol- requires the state agency to award the con- untary check-off box would be added to these tract to the business having the smallest net Department of Highway Safety & Motor Vehi- worth. cle application forms. This bill does not:

Subject to the Governor’s veto powers, the o Impose any type of fee for certifica- effective date of this bill is October 1, 2008. tion of SDVBEs;

o Require a certain number of state contracts to be set-aside for SDVBEs; establish state goals for contracting with SDVBEs; or

44 CARLTON FIELDS, P.A.

o Requires local governments to offer o Requires a petitioner seeking to any special contracting consideration challenge an unadopted rule to for certified SDVBEs, although the bill give notice to the agency that the does encourage local governments to agency statement at issue may consti- do so. tute an unadopted rule at least 30 days before the petition is filed. Subject to the Governor’s veto powers, the effective date of this bill is November 11, o Provides that if the agency, within the 2008. 30 day time period, publishes notice of rulemaking to address the statement, no attorneys fees will be assessed CS/CS/SB 704 against the agency. Open Government Act/Administrative Procedures o Provides that in circumstances where the rule challenge is proceeding, but This bill has two major purposes. The first before the final hearing, the adminis- is to create incentives for agencies to trative law judge is notified that the promulgate rules rather than rely on un- agency has published notice of rule- adopted rules to implement their statutory making, the notice shall operate as a responsibilities. Second, the bill provides en- stay of the proceedings pending rule- hancements to the online electronic publica- making. In such instances, the admin- tion of the Florida Administrative Code (FAC) istrative law judge shall award attor- to make it more user friendly. An “unadopted ney’s fees accrued by the petitioner rule” is an agency statement that meets the prior to the date the notice was pub- definition of “rule” as defined in the Ad- lished, unless the agency proves that ministrative Procedures Act (APA), but which it did not know and should not have has not been adopted through the rulemak- known that the statement was an un- ing process. adopted rule. The bill amends provisions of Chapter 120 o Increases the existing attorney fee (The APA) as follows: cap from $15,000 to $50,000. o Provides that upon notification to the o Requires that effective July 1, 2010, administrative law judge in a rule the Department of State will elec- challenge proceeding that an agency, tronically publish the Florida Adminis- prior to the final hearing, has pub- trative Code on its website to allow lished a notice of rulemaking, the no- for a full text search of the code. tice will operate as an automatic stay of the proceedings pending adoption Subject to the Governor’s veto powers, the ef- of the statement as a rule. fective date of this bill is July 1, 2008 except as otherwise provided. o Narrows the circumstances in which an agency may continue to base its action against an individual on unadopted rules.

45 2008 LEGISLATIVE REPORT

CS/HB 853 used by the Department of State and Cemetery Lands the supervisors of elections.

Cemetery property greater than one acre o Municipal Election Dates. Allows mu- cannot be taken by eminent domain for pur- nicipalities to change election dates poses other than road systems, transportation by ordinance to run concurrently with corridors or rights-of-way, unless it is deter- a statewide or countywide election. mined at a public hearing that there is no reasonable alternative. o Electronic Reporting in Local Elections. Permits counties and cities to require Additionally, a governmental entity may not electronic reporting of campaign re- require the transfer of property dedicated for ports for local officers and candi- cemetery purposes and licensed, pursuant dates. chapter 497, as a condition for obtaining regulatory approval. o Non-Partisan Candidates. Provides that circuit judges will appear in al- Subject to the Governor’s veto powers, the phabetical order on the ballot just as effective date of this bill is July 1, 2008. other non-partisan candidates such as county judges and school board can- CS/CS/SB 866 didates. Elections o Qualifying for Federal Office. The In 2007, Florida passed a sweeping voting bill provides that a person cannot systems standardization bill (HB 537; Chapter qualify for a federal office and an- 2007-30, Laws of Florida) that required pa- other office, if the offices or any part per ballots in precincts and early voting sites of the terms of those offices run con- by July 1, 2008. CS/CS/SB 866 clarifies currently. certain sections of the Florida Election Code and conforms other sections following the Subject to the Governor’s veto powers, the ef- changes made in 2007. fective date of this bill is January 1, 2009, except as otherwise provided. The highlights of the bill are:

o Political Party Affiliation. The bill al- CS/HB 987 lows a voter to change his or her Cultural and Historical Programs party affiliation after the book-closing CS/HB 987 transfers the Historical Museum deadline for any non-primary elec- grant program and the Museum of Florida tion. History, its programs, and citizen support organization from the Department of State o Municipal Recall. Procedures are Division of Historical Resources (Chapter reorganized to provide clarification 267, Florida Statutes: Historical Resources) for municipal recall. to the Department of State Division of Cul- o Precinct-Level Reporting of Election Re- tural Affairs (Chapter 265, Florida Statutes: sults. Precinct-level election reporting is Memorials, Museums and Fine Arts). modified so it more closely matches the election reporting procedures The bill revises the start date for appointments to the Florida Historical Commission to January

46 CARLTON FIELDS, P.A.

1st of the appointment year. The Great Florid- cilities or equipment on a cost-reimbursement ian Program ad hoc committee program is basis; the transportation of students; the amended to delete the appointment by the rental of buildings; and the maintenance or citizen support organization for the Museum upkeep of school plants. of Florida History and adds an appointment by the Secretary of State. The bill also authorizes district school boards to enter into agreements that permit CS/HB 987 allows for the establishment of a public agencies to use school buses for pub- Citizen Support Organization (CSO) for the lic transportation or other public purposes. enhancement of the Legislative Research Cen- Under the bill, the agreement may provide ter and Museum at the Historic Capitol. The for reimbursement to the school board bill repeals s. 267.174, Florida Statutes, based on maintenance costs or other activi- which established the Discovery of Florida ties attributable to the use of the buses and Quincentennial Commemoration Commis- must require to public agency to indemnify sion. and hold the school board harmless from liability. Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. Subject to the Governor’s veto powers, the effective date of this bill is upon becoming

law. CS/SB 1026 Unemployment Compensation Benefits CS/SB 1378 CS/SB 1026 authorizes the Agency for Display of Flags/Homeowners' Workforce Innovation (AWI) to develop and Associations implement a system for the payment of Un- A homeowner may display a portable, re- employment Compensation (UC) benefits by movable United States flag and another offi- electronic funds transfer, including, but not cial, portable, removable flag in a respectful limited to, debit cards, electronic payment manner notwithstanding any association rule cards, or any other means of electronic pay- that would prohibit or limit the display of ment that the agency determines is com- such a flag. This bill provides that a home- mercially viable or cost-effective. The bill owner may also display a United States flag also requires that any commodities or ser- not larger than 41/2 feet by 6 feet and an- vices related to such a system be procured other official flag of Florida or the United through a competitive solicitation, unless they States Army, Navy, Air Force, Marines, are purchased through a state-term contract. Coast Guard, or a POW-MIA flag on a free- standing flagpole not more than 20 feet Subject to the Governor’s veto powers, the high on any portion of a homeowner's effective date of this bill is July 1, 2008. property regardless of any homeowners' association rules or declarations as long as CS/SB 1070 it does not obstruct sightlines at intersections Intergovernmental Cooperation and is not erected on an easement. The bill authorizes district school boards to This bill also provides that a mobile home enter into interlocal agreements for the follow- park homeowners' association may allow ing purposes: the use or maintenance of fa- residents who live in concrete block homes in

47 2008 LEGISLATIVE REPORT the park under a 99-year lease to join the Swannee River (Old Folks at Home)” was des- association. ignated as Florida’s official state song in House Concurrent Resolution 22 in 1935, Subject to the Governor’s veto powers, the with the original lyrics. The song will now be effective date of this bill is July 1, 2008. codified in Chapter 15, Florida Statutes, along with other official state designations. CS/SB 1502 Subject to the Governor’s veto powers, the Leased Property for Public Purposes effective date of this bill is July 1, 2008. This bill authorizes constitutionally chartered counties, as defined in s. 125.011(1), F.S., to enter into a lease with the state, another gov- CS/SB 1694 ernmental entity, or as authorized under the 911 Emergency Dispatchers powers and duties of the county, without be- The bill creates the “Denise Amber Lee Act”, ing subject to the 30-year lease limitation providing for voluntary certification of 911 found in s. 125.031, F.S. emergency dispatchers.

Subject to the Governor’s veto powers, the The bill requires the Department of Health effective date of this bill is July 1, 2008. (department) to establish, by rule, educational and training criteria for certification

and requirements for certificate renewal. The SB 1558 department is authorized to suspend or re- Official State Anthem and Official voke a certificate at any time if it is determined State Song that the certificate holder does not meet the SB 1558 designates the song “Where the qualifications. A certificate holder is allowed Sawgrass meets the Sky” as the official state to request inactivation of his or her certifica- anthem. tion and may renew the inactive certification for a fee. The department is directed to estab- The song was written and composed by Jan lish a procedure by rule for the initial certifi- Hinton, a music teacher from Pompano cation of individuals who have at least 5 Beach, Florida, and was selected through a years of documented supervised full-time em- statewide search. The search was conducted ployment as a 911 emergency dispatcher by the Florida Music Educators’ Association. since January 1, 2002. Entries were narrowed to three finalists by judges from the Florida Music Educators’ As- The bill requires an application fee of $75 sociation and then an online internet vote for an original 911 emergency dispatcher was held in which “Where the Sawgrass certificate, an application fee of $100 for Meets the Sky” won, receiving more than the biennial renewal certificate, a duplicate half of the 8,020 votes cast for the three final certificate fee of up to $25 for a lost or de- songs. stroyed certificate, and a replacement certificate fee of up to $25 for a change in The bill also designates the official state song name. All fees collected must be deposited as "The Swanee River (Old Folks at Home)” into the Emergency Medical Services Trust with revised lyrics, as adopted by the Center Fund and used solely for salaries and ex- for American Music, Stephen Foster Memo- penses the department incurs in administer- rial, at the University of Pittsburgh. “The ing the act.

48 CARLTON FIELDS, P.A.

Subject to the Governor’s veto powers, the o Annual registration fees for inde- effective date of this bill is October 1, 2008. pendent agents of sellers of travel.

The bill changes the date by which the Cit- CS/CS/SB 1702 rus Commission sets the tax rate for the sea- Department of Agriculture and son from “prior to August 1” to “prior to No- Consumer Services vember 1” of each year. This change allows The bill is one of three conforming bills the Citrus Commission to set the citrus tax rate within the Environment and Natural Re- based upon the first official United States De- sources Council’s jurisdiction adopted by the partment of Agriculture crop estimate of each Conference Committee. season.

The Florida Government Accountability Act This bill expands the authorized uses of funds requires the Department of Agriculture and in the Agricultural Emergency Eradication Trust Consumer Services (department) and its advi- Fund within the department. The bill provides sory committees to be reviewed by July 1, that the money in the fund may be made 2008, to determine if it and its committees available for the promotion, advancement should be retained, modified, or abol- and protection of agriculture in this state, ished. This bill reenacts provisions pertain- including maintaining or increasing market ing to the department and makes statutory share and the suppression or eradication of changes recommended in the agency sunset wildfire, animal or plant disease, and insect review report. infestation. This bill repeals the required notice that the Commissioner of Agriculture To reduce the reliance on general revenue must give the Governor, the President of the funds for services provided by the department, Senate, and the Speaker of the House of Rep- the bill makes adjustments to the following resentatives before using funds from the Ag- fees. ricultural Emergency Eradication Trust Fund.

o County fire protection and land man- This bill eliminates the administration, pur- agement assessments; chase and distribution of the brucellosis vac- cine by the department for domestic livestock. Wholesale and retail saltwater prod- o In addition, there is an estimated $140,000 in ucts dealer licenses; cost savings in the department’s recurring ex- o Annual registrations for each regis- pense budget as a result of eliminating this tered pesticide brand; program.

o The statutory cap on permit fees for Subject to the Governor’s veto powers, the food stores; effective date of this bill is July 1, 2008.

o Fertilizer inspections; CS/SB 1892 o Master registrations for distributors of State Data Center System commercial feed; This bill sets forth a framework for data center consolidation to occur over the next decade. It o Aquaculture certificates of registra- creates the state data center system, which is tion; and composed of primary data centers, non-

49 2008 LEGISLATIVE REPORT primary data centers and computing facili- CS/SB 2222 ties. The Agency for Enterprise Information Citrus Technology is made responsible for establish- The bill establishes a permitted 5-year pilot ing policy and for overall coordination in the program within the Department of Agriculture transition to a consolidated system. Two pri- and Consumer Services (department) to mary data centers, the Northwood Shared allow the planting of Casuarina cunning- Resource Center and the Southwood Shared hamiana as a windbreak for commercial Resource Center are established in the bill. citrus groves growing fresh fruit in specified The bill authorizes the creation of boards of areas of the state (Indian River, Martin and trustees for each primary data center as a St. Lucie counties). To participate in the data center Governance structure. The bill windbreak program, each commercial citrus consolidates the mainframe functions of The grove is required to have a permit, renewable Department of Transportation and the De- every 5 years. If ownership of the property is partment of Highway Safety into the South- transferred, the seller must notify the depart- wood Shared resource Center by July 2009. ment and provide the buyer with a copy of Unless legislatively authorized, or unless ex- the permit and copies of all invoices and cer- ception is granted by the Agency for Informa- tification documentation prior to the closing tion Technology under specified conditions, the of the sale. bill prohibits agencies from: creating new com- The windbreak trees must come from an au- puting facilities or data centers or expanding thorized registered nursery and be certified existing computing facilities or data centers; by the department as being from certified transferring existing computing services to male plants. Nurseries authorized to pro- with a non-primary data center or computing duce the windbreak trees must obtain a spe- facility; initiating new computing services cial permit from the department, to be renewed with a non-primary data center if the agency annually, certifying that the windbreak trees doesn’t have an internal data center; or ter- are from sexually mature male source trees. minating services with a primary data center Each male source tree must be registered or transferring services between primary data by the department and labeled with a centers without written notice 180 days be- source tree registration number. Nurseries fore such termination. may only sell the windbreak trees to persons The bill transfers all data center functions by with a special permit issued by the depart- state agencies with resources and equipment ment. At the end of the 5-year pilot program, located in a primary data center created by if it is determined that the potential is low for the act to that primary data center and re- adverse environmental impacts from planting quires the agency to become a full-service the trees as windbreaks, the department customer entity by July 1, 2010. may, by rule, allow the use of the tree windbreaks for commercial citrus groves in other Subject to the Governor’s veto powers, the areas of the state. effective date of this bill is upon becoming law. The bill requires that all windbreak trees be destroyed by the property owner within six months after:

50 CARLTON FIELDS, P.A.

o The property owner takes permanent ac- CS/SB 2310 tion to no longer use the site for com- Economic Stimulus mercial citrus production; Economically Targeted Investments o The site has not been used for commer- This legislation provides legislative findings cial citrus production for a period of that prudent and sound economically tar- five years; or the department deter- geted investments by the State Board of mines that the windbreak trees on the Administration (SBA) of funds in the Florida site have become invasive. Retirement System Trust Fund in endeavors The determination of invasiveness shall be that have the potential for high-growth and based on, but not limited to, the recommen- high-wage jobs will provide significant bene- dation of the Noxious Weed and Invasive fits to state residents, will serve the broad Plant Review Committee, the Department interests of the plan’s beneficiaries, and of Environmental Protection, and in consulta- will continue the maintenance of the con- tion with a representative of the citrus industry tributions into the plan by strengthening who has a tree windbreak. If the owner or the economy and well being of employers. person in charge refuses or neglects to com- The bill also provides that it is the policy of ply with the destruction of the trees, the direc- the state that the SBA identify and invest in tor of the Division of Plant Industry may, by economically targeted investments (ETIs) if authority of the department, destroy the the investments do not compromise or con- windbreak trees. The department is author- flict with the fiduciary obligations of the ized to assess the owner for expenses in- board to a fund’s participants, members, or curred in the destruction of the trees. If the beneficiaries. owner fails to pay the assessed cost, the department is authorized to record a lien The bill provides the SBA with the authority to against the property. invest no more than 1.5 percent of the net asset value of any fund in technology and The bill provides that the use of trees for growth investments of businesses domiciled windbreaks will not restrict or interfere with in this state or businesses whose principle any other agency or local government efforts address is in this state. In addition, the bill to manage or control noxious weeds or inva- provides for a definition of technology and sive plants. Other agencies or local govern- growth investments, including but not limited to ments are not allowed to remove any trees space technology, aerospace and aviation planted as a windbreak under special permit engineering, computer technology, renew- issued by the department. able energy, and medical and life sciences. Subject to the Governor’s veto powers, the It also requires the SBA to include in its an- effective date of this bill is July 1, 2008. nual report to the Legislature the beginning and ending asset values and changes and sources of changes in the asset value for technology and growth investments within the Florida Retirement System Trust Fund. The bill provides a definition of “life sciences” for the purpose of the program, to mean the use of information technology, en-

51 2008 LEGISLATIVE REPORT gineering, and biological and chemical sci- November 6, 2004. The bill does not pro- ences for the development and production of vide an appropriation. goods and services, including, but not limited to, drug development, medical implants and Subject to the Governor’s veto powers, the devices, bio-related diagnostic products, effective date of this bill is July 1, 2008. bioagriculture technologies, biosecurity, biofuels, and biorelated applications. SB 2820 Juvenile Offenders/Residential The bill permits the SBA to offer opportunities Facilities to small, state-based investment management firms to facilitate their development and This bill places limitations on residential facili- growth. ties that house juvenile offenders by redefin- ing the “restrictiveness level” so that low-risk, The bill increases from 5% to 10% the allow- moderate-risk, high-risk, and maximum-risk able amount of alternative investments, alter- residential facilities must have no more than native investment vehicles or in securities or 165 beds each. This does not apply if the investments that are not publicly traded and facility has a specified campus-style program are not otherwise authorized by this section. that includes more than one level of restrictiveness, provides multilevel education and The bill requires the Office of Program Policy treatment programs using different treatment Analysis and Government Accountability to protocols, and has facilities that co-exist sepa- perform an annual review of technology and rately in distinct locations on the same prop- growth investments made by the SBA within erty. the state, including the direct and indirect economic benefits to the state resulting from Subject to the Governor’s veto powers, the such investments. effective date of this bill is July 1, 2008. Reusable Space Industry Prize Program ■ HB 5001 The bill creates the Reusable Space Vehicle 2008-2009 General Appropriation Industry Prize Program within the Office of Act Tourism, Trade and Economic Development. The general appropriations act provides The program will award a cash prize of $20 moneys for the annual period beginning July million in state funds and $20 in funds pro- 1, 2008 and ending June 30, 2009. House vided by private sponsors, to the firm or indi- Bill 5001 provides for a total budget of vidual in the private sector providing the most $66.2 billion including: significant advancements within the reusable space vehicle industry from January 1, 2009 o General Revenue: $25.6 billion through January 1, 2014. The Lieutenant o Trust Funds: $40.6 billion Governor of Florida will be the chair of the The budget is summarized as follows: program and is responsible for appointing a committee. The committee will adopt an ap- o Pre-K–12 Education – 12.1 billion plication and criteria for the awarding of the $9.1 billion General Revenue program prize. The bill requires the program $3.0 billion Trust Funds to mirror the Ansari X Prize program as Higher Education – $6.0 billion awarded by the X PRIZE FOUNDATION on o

52 CARLTON FIELDS, P.A.

$3.8 billion General Revenue work, the department’s child-welfare $2.2 billion Trust Funds case-management system. The de- o Health – $23.4 billion partment shall coordinate with the courts and guardian ad litems to pro- $7.1 billion General Revenue vide access to the information, and $16.2 billion Trust Funds shall submit a report to the legislature o Criminal and Civil Justice – $5.0 bil- and Governor by February 1, 2009. lion o Requires the Agency for Health $4.3 billion General Revenue Care Administration to study the ef- $.7 billion Trust Funds. fects of the minimum nursing home Effective July 1, 2008, with line-item veto staffing ratios found in s. 400.23(3), authority available to the Governor. F.S., and the relationship to Medi- caid reimbursement and the quality of

care provided to residents. The HB 5003 agency shall report its findings to the Implementing the 2008-2009 Governor, the President of the Senate, Appropriations Act and the Speaker of the House of Rep- This is the “Implementing Bill” which provides resentatives by February 1, 2009. the statutory authority necessary to implement Until July 1, 2009, the agency shall and execute the General Appropriations Act not impose sanctions against a nurs- for Fiscal Year 2008-2009. The statutory ing home for failure to meet the staff- changes are effective for only one year and ing ratios in s. 400.23(3), F.S., or either expire on July 1, 2009 or revert to the failure to impose a moratorium on language as it existed before the changes new admissions pursuant to s. made by the bill. 400.141(15)(d), F.S., as long as the certified nursing assistant ratio is not Section 19 of Article III of the Florida Consti- below 2.6 hours per resident per day tution states that appropriations acts “shall and the licensed nurse ratio is not be- contain provisions on no other subject” other low 1.0 hours per resident per day. than making appropriations. This language has been interpreted to defeat proviso to o Provides that the Department of Cor- appropriations that have the effect of rections and the Department of Juve- amending general law. For this reason, nile Justice may expend appropriated when general law changes are required to funds to assist in defraying the costs of effectuate appropriations, those changes are impacts that are incurred by a munici- placed in a general bill implementing the pality or county and associated with General Appropriations Act (GAA) instead of opening or operating a facility under in the GAA. the authority of the respective department which is located within that

o Requires that the Department of Chil- municipality or county. The amount dren and Family Services ensure that that is to be paid under this section all public and private agencies and for any facility may not exceed 1 institutions participating in child wel- percent of the facility construction fare cases enter specified information cost, less building impact fees im- into the Florida Safe Families Net-

53 2008 LEGISLATIVE REPORT

posed by the municipality or by the personal account for deposit of pay- county if the facility is located in the ments. If the obligee does not des- unincorporated portion of the county. ignate a personal account, the State Disbursement Unit shall deposit any o Amends s. 216.262, F.S. Allows payments into a stored-value account the Executive Office of the Gover- that can be accessed by the obligee. nor (EOG) to request additional posi- Section 24 of the bill authorizes the tions and appropriations from unallo- Department of Revenue to extend cated general revenue during the for 66 months the current contract 2008-2009 fiscal year for the De- for the State Disbursement Unit (with partment of Corrections (DOC) if the ACS). actual inmate population of the De- partment of Corrections exceeds the o Provides direction to the Department inmate population projections of the of Revenue on how to distribute the February 15, 2008 Criminal Justice appropriation to offset the reductions Estimating Conference by 1 percent in ad valorem tax revenue experi- for two consecutive months or 2 per- enced by fiscally constrained coun- cent for any month. The additional ties which occur as a direct result of positions and appropriations may be the implementation of revisions of Ar- used for essential staff, fixed capital ticle VII of the State Constitution ap- improvements, and other resources proved in the special election held to provide classification, security, on January 29, 2008 (Amendment food services, health services, and 1). The appropriated funds shall be other variable expenses within the distributed in January of 2009 institutions to accommodate the esti- among the fiscally constrained coun- mated increase in the inmate popu- ties based on each county's propor- lation, and must be approved by tion of the total reduction in ad the Legislative Budget Commission. valorem tax revenue resulting from the implementation of the revision. On or o Amends s. 255.503, F.S. Extends before November 15, 2008, each for another year (until July 1, fiscally constrained county must 2009) the authorization for the De- apply to the Department of Reve- partment of Management Services to nue to participate in the distribution sell, lease, or otherwise dispose of fa- of the appropriation and provide cilities within the Florida Facilities pool documentation supporting the county's and to report to the Legislature, the estimated reduction in ad valorem tax Governor, and the Division of bond revenue. The documentation must in- Finance. clude an estimate of the reduction in taxable value directly attributable to o Amends ss. 61.1824 and the constitutional revisions for all 409.2558, F.S. Requires that any county taxing jurisdictions within the payments made to the Child Support county and shall be prepared by the Enforcement program’s State Dis- property appraiser in each fiscally bursement Unit that are owed to the constrained county. The documenta- obligee shall be disbursed electroni- tion must also include the county mil- cally. The obligee may designate a

54 CARLTON FIELDS, P.A.

lage rates applicable in all such juris- for mobile homes). dictions for both the current year and the prior year; rolled-back rates, de- The sum of $700,000 shall be al- termined as provided in s. located for the same purpose as 200.065, F.S., for each county tax- specified in s. 215.559(4), F.S. ing jurisdiction; and maximum mil- (to the Florida International Uni- lage rates that could have been lev- versity for hurricane research). ied by majority vote pursuant to s. The sum of $6,421,764 shall be 200.185, F.S. Each fiscally con- used to install emergency power strained county's reduction in ad generators in special-needs hurri- valorem tax revenue shall be calcu- cane evacuation shelters as pro- lated as 95 percent of the estimated vided in section 1 of chapter reduction in taxable value times the 2006-71, Laws of Florida, except 2007 applicable millage rate. that such funds may not be used o Amends s. 255.518, F.S. Current for administrative purposes. law provides that payment of debt service charges and any reserves on The sum of $78,236 shall be al- obligations during the construction of located for operational purposes any facility financed by such obliga- of the Department of Community tions shall be made from funds other Affairs as specified in the 2008- than proceeds of obligations. This 2009 General Appropriations section strikes the words “and any re- Act. serves” so that such reserves may be o Amends s. 339.135, F.S. Provides funded from bond proceeds during the that the Department of Transporta- 2008-2009 fiscal year. The practi- tion shall transfer funds to the Office cal effect of this provision is that it of Tourism, Trade, and Economic De- applies only to the construction of velopment in an amount equal to the new building for the First District $36,750,000 for the purpose of fund- Court of Appeal in the Capital Circle ing economic development transporta- state office complex in Tallahassee, tion projects. Requires the depart- since that will be the only project in ment to provide specified funds for the state facilities pool authorized certain road and bridge projects during the 2008-2009 fiscal year. specified in the 2008-2009 General o Amends s. 215.559, F.S. Provides Appropriations Act. Provides that the that the $10 million of Florida Hur- transfer of funds for economic devel- ricane Catastrophe Fund that is ap- opment and the requirement to spend propriated each year pursuant to s. certain funds on specific projects 215.555, F.S., shall be allocated as shall not reduce, delete, or defer any follows: existing projects funded, as of July 1, 2008, in the Department of Transpor- The sum of $2.8 million shall be tation's 5-year work program. Also used for the same purpose as provides that funding for the speci- specified in s. 215.559(3)(a), F.S. fied projects shall not negatively im- (to inspect and improve tie-downs pact safety, preservation, mainte-

55 2008 LEGISLATIVE REPORT

nance, or project contingency levels grant funds equally to counties having as of July 1, 2008. populations of fewer than 100,000 for waste tire, litter prevention, recy- o Amends s. 339.08, F.S. Authorizes cling and education, and general funds in the Department of Transpor- solid waste programs. It also author- tation’s State Transportation Trust izes the sum of $2,000,781 to be Fund to be used to pay administra- used for the Innovative Grant Pro- tive expenses incurred in accor- gram. dance with applicable laws for a multicounty transportation or ex- o Amends s. 373.1961, F.S. Provides pressway authority created under that, notwithstanding s. 373.1961(3), chapter 343 or chapter 348, where F.S., which governs the allocation of jurisdiction for the authority includes funds for water projects, $5,000,000 a portion of the State Highway Sys- provided for alternative water supply tem and the administrative expenses shall be allocated as shown in the are in furtherance of the duties and General Appropriations Act. responsibilities of the authority in the development of improvements to the o Provides that, notwithstanding the State Highway System. This authori- provisions of s. 11.13(1), F.S., re- zation implements the $2,000,000 lating to the annual adjustment of appropriation to the Tampa Bay Re- salaries for members of the Legisla- gional Transportation Authority in Spe- ture, for the 2008-2009 fiscal year cific Appropriation 2153 of the 2008- only, the authorized salaries of 2009 General Appropriations Act. members of the Legislature in effect on June 30, 2008, shall be reduced o Amends ss. 220.183, 624.5105 by 5 percent. Effective June 30, and 212.08, F.S. Provides that the 2009, the annual salaries of mem- total amount of tax credit which may bers of the Legislature shall be set at be granted for all Community Contri- the amounts authorized and in effect bution Tax Credit programs is $13 on June 30, 2008. million annually for projects that provide homeownership opportunities for Subject to the Governor’s veto powers, the low-income or very-low-income effective date of this bill is July 1, 2008; or, if households and $3.5 million annually this act fails to become a law until after that for all other projects. Specific Appro- date, it shall take effect upon becoming a law priation 1615A of the GAA provides and shall operate retroactively to July 1, $2,500,000 for this purpose in addi- 2008. tion to the current statutory authorization of $10,500,000 for projects that HB 7109 provide homeownership opportunities Small Business Regulatory Relief for low-income or very-low-income This legislation designates the Florida Small households. Business Development Center Network o Amends s. 403.7095, F.S. Requires (FSBDC) as the principal business assistance the Department of Environmental Pro- organization for small businesses in the state. tection to award $9,428,773 of Further, the bill establishes the Small Business

56 CARLTON FIELDS, P.A.

Regulatory Relief Act by creating a Small o Serving as principal advocate in the Business Regulatory Review Advisory Council state on behalf of small business; (Council) and a Small Business Advocate, both housed and staffed by the FSBDC. The o Representing the views and interests of bill also authorizes the Council to address small businesses before state agencies claims that private property rights of small whose policies and activities may af- businesses are affected by rules or programs fect small businesses; and adopted by agencies, and requiring the o Establishing an annual process for small Council to prepare a Small Business Friendli- businesses to nominate agency rules or ness and Development Scorecard of agency programs for reform. The advocate rules in conjunction with the agency sunset must publish those nominations online review process. and update the status of agency ac- The duties of the Small Business Advocate tion. include:

The bill also amends the Administrative Proce- does not utilize a less burdensome alterna- dures Act by requiring state agencies to pre- tive offered by the Small Business Regulatory pare a statement of estimated regulatory cost Review Advisory Council. if the proposed rule will impact small busi- Subject to the Governor’s veto powers, the ness, and creating a review process utilizing effective date of this bill is July 1, 2008. the Office of Program Policy Analysis and Government Accountability when an agency

2008 Florida Legislature Post-Session Report

GROWTH MANAGEMENT, ENVIRONMENT, NATURAL RESOURCES, REAL PROPERTY, & TRANSPORTATION

CARLTON FIELDS, P.A.

GROWTH MANAGEMENT, ENVIRONMENT, NATURAL RESOURCES, REAL PROPERTY & TRANSPORTATION

CS/SB 464 Transfer Fee Covenants/Real Property The seller of real property may place conditions in the deed that act as restrictions binding upon future owners of the property. These conditions are known as covenants. A transfer fee covenant requires the payment of a fee upon each future transfer or sale of the property. Some sellers are attempting to use transfer fee covenants to compel future owners of the property to pay that seller a fee, usually Environmental & Natural Resources Chairman Stan a percentage of the sales price, upon every Mayfield, R-Vero Beach, takes questions on the sweep- future transfer or sale of the property. This ing energy policy bill, debated and later approved during the final days of the Legislature. (House photo bill provides that, in general, transfer fee by Mark Foley.) covenants are void and unenforceable. This bill also provides limited exceptions that al- The Department of Environmental protection low a transfer fee covenant, such as a fee to (DEP) has currently identified nine contami- a homeowners' association, a fee to a non- nated sites that may be eligible for state- profit or charitable organization, or a fee funded clean up as a result of this bill be- imposed by the government. coming law.

Subject to the Governor’s veto powers, the The bill also amends the Brownfield Redevel- effective date of this bill is July 1, 2008. opment Act, and establishes a new tax credit for an additional 25% of total site rehabilita-

tion costs, up to $500,000, as a bonus for CS/HB 527 the construction and operation of a health Environmental Site Redevelopment care facility or a health care provider on a The bill revises the Innocent Victim Petroleum brownfield site. The bill requires that the Storage System Restoration Program to pro- “health care facility” or “health care provider” vide that a transfer of property to a spouse, a meet the definitions in ss. 408.032, 408.07 or surviving spouse in trust or free of trust, or a 408.7056, F.S. additionally, the bill en- revocable trust created for the benefit of the courages state and local governments to settlor, does not disqualify the site from par- evaluate, measure, and monitor the commu- ticipating in the program. It also clarifies that nity health benefits associated with the re- the current property owner of the contami- habilitation and redevelopment of brown- nated site must have acquired the property field sites. The bill expands the Brownfield prior to July 1, 1990. The provisions of the Areas Loan Guarantee Program to include bill will allow an unknown total number of a 75% state loan guarantee for the primary petroleum contaminated sites to remain eligi- lender’s loan to construct or operate a health ble for state-funded clean up, which may oth- care facility or health care provider. erwise become ineligible under current law.

61 2008 LEGISLATIVE REPORT

The bill establishes that tax credits for afford- applicable state and federal safety stan- able housing, healthcare facilities or providers, dards, the insurance requirements are un- and site rehabilitation completion orders are necessary. The bill eliminates the contractor applicable to solid waste removal sites. Such insurance requirement. a site may not be, or have even been, a permitted landfill, dump, or other area which The bill provides a retroactive application to is or was the recipient of solid waste for a January 1, 2008, to avoid creating a split- fee or direct compensation. calendar year for tax credit applications claiming new incentives (e.g., the health The bill clarifies the requirements for submit- care credit). tals of both site rehabilitation and solid waste removal tax credit applications: Subject to the Governor’s veto powers, the effective date of this bill is upon becoming a o Provides for tax credit applications to law and shall operate retroactively to Janu- be reviewed for both completeness ary 1, 2008. and eligibility;

o Allows for a one-time correction of CS/CS/SB 542 completeness deficiencies; and estab- Land Acquisition and Management lishes review and eligibility determi- Florida Forever nation time frames. The bill extends the current Florida Forever The bill also clarifies, reduces, or eliminates program by 10 years and increases the bond- some of the requirements for brownfield area ing capacity from an aggregate of $3 billion designations and Brownfields Site Rehabili- to $5.3 billion while maintaining the $300 tation Agreement (BSRA) execution. For million per year cap. The bill requires the instance, because the statutory requirement to Legislature, beginning July 1, 2010, to ana- hold a public hearing in the proposed brown- lyze the state’s debt ratio in relation to pro- field area is sometimes not feasible because jected revenues prior to the authorization of there are no facilities available, the bill re- any bonds for land acquisition and directs quires that at least one meeting be held as the Legislature to complete an analysis of po- near to the brownfield site as is feasible. The tential revenue sources for the Florida Forever requirement to provide a redevelopment program by February 1, 2010. agreement that has been reviewed and approved by the local government has proven The bill expands the scope of the program to to be problematic to both the private sector include protecting agricultural lands and and the local governments, therefore the bill working waterfronts from conversion to other requires that the person responsible for the land uses and revises the allocation of Flor- brownfield site rehabilitation certify that he or ida Forever funds and the uses of those she has consulted with the local government funds to reflect the expansion. The alloca- and that the local government approves of tion to the water management districts is the project. In addition, current law includes reduced from 35% to 30% ($15 million re- contractor insurance requirements that are duction, if Florida Forever is funded at $300 appropriate for a state-managed project, but million) and the allocation to the Florida Com- since brownfields projects are managed by munity Trust is reduced from 22% to 21% ($3 private sector volunteers, and are subject to million reduction, if Florida Forever is

62 CARLTON FIELDS, P.A. funded at $300 million). New allocations The bill provides that all state lands that have are provided to the Department of Agricul- imperiled species habitat include as a consid- ture and Consumer Services (DACS) to ac- eration in management plan development quire perpetual conservation easements on the restoration, enhancement, management, agricultural lands (3.5% or $10.5 million, if or repopulation of such habitats. The bill re- Florida Forever is funded at $300 million) quires the FWC and DACS to be included in and to the Department of Community Affairs any advisory group relating to state lands (DCA) to acquire fee and less-than-fee inter- where habitat or potentially restorable habi- ests in working waterfronts (2.5% or $7.5 tat for imperiled species is located, and re- million, if Florida Forever is funded at $300 quires the short-term and long-term goals of the million). The bill establishes a 1% to 3% floor land management plan to advance the goals and a 10% ceiling for capital projects that and objectives of imperiled species man- enhance public access at the time of acquisi- agement plans. Such goals and objectives tion. are to be consistent with the purposes for which the land was acquired and not restrict The bill states legislative intent for the state to other uses identified in the land management play a major role in the recovery and man- plan. In addition, the lead land managing agement of imperiled species through the agency is authorized to use fees received acquisition, restoration, enhancement, and from public or private entities for projects to management of ecosystems, and to support offset adverse impacts to imperiled species programs benefiting imperiled species habitat or their habitat in order to restore, enhance, by providing public and private land owners manage, repopulate, or acquire land and to meaningful incentives to participate in such implement land management plans. activities. The bill defines the term "imperiled species" to mean plants and animals that are The bill recognizes that acquisition of lands in federally- listed under the Endangered Spe- fee simple is only one way to achieve the cies Act, or state-listed by the Fish and Wild- goals of the Florida Forever program and en- life Conservation Commission (FWC) or the courages the use of less-than-fee interests and DACS. Intent is provided that public lands other techniques to further these goals. The identified by the lead management agency, bill recognizes that rural land protection in consultation with the FWC and DACS, as agreements and non-state funded tools such potential habitat for such species be restored, as rural land stewardship areas, sector plan- enhanced, managed, and repopulated to ad- ning, and mitigation and similar tools can be vance imperiled species management consis- used to bring environmentally sensitive tracts tent with the purposes for which such lands under protection at a lower financial cost to are acquired without restricting other uses the public while providing private landowners identified in the management plan. The bill with the opportunity to continue to enjoy and provides additional intent that additional con- benefit from their property. The bill requires sideration be given to acquisitions that recipients of Florida Forever funds to coor- achieve a combination of conservation dinate their expenditures to form more com- goals, including restoration, enhance- plete patterns of protection of natural areas, ment, management, or repopulation of ecological greenways, and functioning ecosys- habitat for imperiled species. tems.

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The bill defines “public access” as access to One of the two new members will be ap- state land and waters, including vessel access pointed by the Commissioner of Agriculture made possible by boat ramps, docks and and the other by the Executive Director of the associated support facilities when compati- FWC. One of the Governor’s existing ap- ble with conservation and recreation objec- pointments shall be filled with an individual tives. who has experience in managing lands for both active and passive types of recreation. The bill revises the performance measures for The bill removes the compensation provisions the Florida Forever program to reflect the spe- for ARC members. cific criteria and numeric performance measures developed by the Acquisition and Resto- The bill requires the ARC, by December 1, ration Council (ARC) and adds the following 2009, to develop rules that define specific measures: criteria and establish numeric performance measures needed for ranking lands that are to o The number of acres acquired be acquired for public purposes under the through the state's land acquisition Florida Forever program. Each recipient of programs that contribute to the en- Florida Forever funds is to assist the ARC in hancement of essential natural re- the development of these rules. The rules are to sources, ecosystem service parcels, be reviewed and adopted by the board, then and connecting linkage corridors as submitted to the Legislature for consideration identified and developed by the best by February 1, 2010. The Legislature may available scientific analysis. reject, modify, or take no action relative to the proposed rules. If no action is taken, the o The number of acres of publicly rules shall be implemented. Subsequent to owned land identified as needing approval of the rule, each recipient of Florida restoration, enhancement, and man- Forever funds is required to annually report agement, acres undergoing restora- to the Division of State Lands regarding the tion or enhancement, and acres with numeric performance measures for the pre- restoration activities completed, and vious fiscal year. acres managed to maintain such restored or enhanced conditions; the Land Management number of acres which represent actual or potential imperiled species The bill requires state lands to be managed habitat; the number of acres which to ensure the conservation of the state's are available pursuant to a manage- plant and animal species and to ensure the ment plan to restore, enhance, re- accessibility of state lands for the benefit and populate, and manage imperiled enjoyment of all people of the state, both pre- species habitat; and the number of sent and future. The bill requires the develop- acres of imperiled species habitat ment of land management plans that provide managed, restored, enhanced, re- desired outcomes, short-term and long-term populated, or acquired. management goals, and measurable objectives to achieve those goals. The measurable Acquisition and Restoration Council objectives are to be established for the following, as appropriate: The bill revises and expands the membership of the (ARC) from 9 members to 11 members. o Habitat restoration and improvement;

64 CARLTON FIELDS, P.A.

o Public access and recreational oppor- tative measures, and detailed ex- tunities; pense and manpower budgets; and

o Hydrological preservation and resto- o A summary budget for the scheduled ration; land management prepared in such manner that it facilitates computing an o Sustainable forest management; aggregate of land management costs for all state-managed lands using the o Exotic and invasive species mainte- categories established by the Land nance and control; Management Uniform Accounting o Capital facilities and infrastructure; Council.

o Cultural and historical resources; The bill provides the ARC 90 days to review land management plans and submit o Imperiled species habitat maintenance, its recommendations to the Board of Trustees enhancement, restoration, or popula- (BOT). If the ARC fails to make a recom- tion restoration. mendation for a land management plan, the Secretary of the DEP, Commissioner of Agri- The short-term and long-term management culture, or Executive Director of the Fish and goals are to be the basis for all subsequent Wildlife Conservation Commission (FWC) or land management activities. their designees shall submit the land man- The land management plan is required to agement plan to the (BOT). The land man- contain the following elements: agement plan becomes effective upon approval by the BOT. o A physical description of the land; The bill requires land management plans to o A quantitative resource description of be updated every 10 years on a rotating the land which includes an inventory basis and requires at least one public hear- of forest and other natural resources; ing to be held in each county affected by the exotic and invasive plants; hydro- land management plan. logical features; infrastructure, including recreational facilities; and other Biennially, each Land Management Uniform significant land, cultural, or historical Accounting Council (LMUAC) reporting features; agency shall also submit an operational report for each management area along with o A detailed description of each short- an approved management plan. The report term and long-term land manage- should assess the progress toward achiev- ment goal, the associated measur- ing short-term and long-term management able objectives, and the related ac- goals of the approved management plan, in- tivities that are to be performed to cluding all land management activities, and meet the land management objec- identify any deficiencies in management and tives; corrective actions to address identified deficiencies as appropriate. This report must be A schedule of land management ac- o submitted to the ARC and the DSL for inclu- tivities which contains, for each activ- sion in the annual Florida Forever report. ity, a timeline for completion, quanti-

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(NOTE: CS/HB7059 revises this reporting owned land is subject to annexation. The interval from biennial to every three years.) bill also extends the notification period from 30 days to 45 days to notice the board of Board of Trustees and the Division of State county commissioners of the sale of state Lands lands by the BOT.

The bill provides the BOT rulemaking authority The bill requires the BOT to adopt rules that for selecting appraisers and waiving sales his- pertain to the use of state lands for carbon tory requirements currently held by Division of sequestration, carbon mitigation, or carbon State Lands (DSL), and removes the require- offsets and that provide for climate-change- ment for a review appraiser to perform field related benefits. inspection of the property. The bill requires the DSL to prepare an annual The bill requires that if the financial contribu- work plan. The annual work plan must priori- tion of the acquiring agency exceeds $100 tize projects on the Florida Forever list and set million in any one fiscal year, the agreement forth the funding for the upcoming year. The shall be submitted to and approved by the annual work plan must categorize existing Legislative Budget Commission. The thresh- Florida Forever projects into the following: old for requiring two appraisals is increased from $500,000 to $1 million dollars. The o A critical natural lands category that bill requires that option contracts presented targets lands that have functional land- to the BOT for final purchase price ap- scape-scale systems, intact large hydro- proval must explicitly state that payment of the logical systems, significant imperiled final purchase price is subject to an appropria- communities, or provide corridors link- tion from the Legislature. ing large landscapes;

The bill removes the current requirement for o A partnerships or regional incentive the DEP to initiate an information system to category that targets acquisitions record and document lands titled to the BOT, which utilize cost-share agreements to replacing it with a requirement for an informa- lower costs and provide greater con- tion system to record and document all lands servation benefits or that utilize bar- acquired under the Preservation 2000 and gain or shared projects that remove Florida Forever programs. development rights;

The bill revises the appraisal requirement for o A substantially completed projects surplus lands and Murphy Acts lands by au- category; thorizing the DSL to require a second appraisal if the estimated value of the land is o A climate change category that tar- $1 million or greater. The bill require the DSL gets lands that assist in addressing to have an inventory prepared by July 1, the potential impacts of climate 2009, that values the carbon capture and change, including carbon sequestra- sequestration value of state lands acquired tion and sea-level rise; and under Preservation 2000 and Florida Forever o A less-than-fee category for working programs. agricultural lands. The bill requires the DSL to notify the county local delegation if a parcel of state-

66 CARLTON FIELDS, P.A.

The terms of the easements proposed for ac- Speaker of the House of Representa- quisition under the less-than-fee are to be de- tives no later than December 31, veloped by the DSL in coordination with 2008. The report is to provide an DACS. Projects within each category are to interim management formula and a be ranked in order of priority. long-term management formula, and the methodologies used to develop Conservation and Recreation Land Trust Fund the formulas that will be used to allocate CARL land management funds. The bill makes revisions to the Conservation The methodology and formula for in- and Recreation Lands Trust Fund by: terim management shall be based on o Expanding the intent language re- the estimated land acquisitions for garding state lands to include priori- the fiscal year in which the interim tizing the restoration and manage- funds will be expended. The meth- ment of the state’s conservation and odology and formula for long-term recreation lands and acquiring lands management must recognize, but not that advance the goals and objectives be limited to, the following: of the FWC ‘s approved species or The assignment of management habitat recovery plans; intensity associated with man- o Expanding the public purpose of ac- aged habitats and natural com- quiring lands to include preserving munities and the related manage- agricultural lands under the threat of ment activities to achieve land conversion to development through management goals provided in less-than-fee acquisitions; land management plans:

o Changing the 1.5% ceiling for the The acres of land that require funding of land management, mainte- minimal effort for resource pres- nance and capital improvement to a ervation or restoration; 1.5% floor to fund such activities; The acres of land that require o Requiring the land management Uni- moderate effort for resource form Accounting Council (LMUAC) to preservation or restoration; prepare and deliver a report on the The acres of land that require methodology and formula for allocat- significant effort for resource ing land management funds to the preservation or restoration. ARC The assignment of management o Requiring the ARC to review the re- intensity associated with public port submitted by the LMUAC, modify access, including, but not limited as appropriate, and submit the report to: to the BOT; The acres of land that are open o Requiring the BOT to review the re- to the public but offer no more port submitted by the ARC, modify as than minimally developed fa- appropriate, and submit the report to cilities; the President of the Senate and the

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The acres of land that have a bined into capital improvement. Addition- high degree of public use and ally, the bill requires each reporting agency offer highly developed facili- to also: ties; and o Include a report of the available pub- The acres of land that are lic use opportunities for each man- sites that have historic signifi- agement unit of state land, the total cance, unique natural fea- management cost for public access tures, or a very high degree and public use, and the cost associ- of public use. ated with each use option;

The acres of land that have a o List the acres of land requiring mini- secondary manager contributing to mal management effort, moderate the over-all management effort; management effort, and significant management effort. For each The anticipated revenues gener- LMUAC reporting category, the re- ated from management of the lands; porting agency is to report the amount of funds requested, the The impacts of, and needs created amount of funds received, and the or addressed by, multiple-use man- amount of funds expended for land agement strategies; management; The acres of land that have infes- List acres managed and cost of man- tations of nonnative or invasive o agement for each park, preserve, for- plants, animals, or fish. est, reserve, or management area; o Providing for the Legislature during List acres managed, cost of man- the 2009 regular legislative session o agement, and lead manager for each to review the funding formulas for in- state lands management unit for terim and long-term management pro- which secondary management activi- posed by the agencies. The Legisla- ties were provided; ture may reject, modify, or take no action relative to the proposed fund- o Include a report of the estimated cal- ing formulas. If no action is taken, the culable financial benefits to the pub- funding formulas shall be used in the lic for the ecosystem services pro- allocation and distribution of CARL vided by conservation lands. land management funds. Rural and Family Lands Land Management Uniform Accounting Council The bill requires the DACS to develop rules that provide a parcel listing, ranking, and The bill revises the reporting requirements of annual acquisition approval process that is the LMUAC. The reporting categories are ex- consistent with the Florida Forever program for panded to include: support; recreation visitor the purpose of implementing the Rural and services; law enforcement activities. The re- Family Lands program. No funds may be porting categories for new facility construc- expended for the implementation of the pro- tion and facility maintenance are com-

68 CARLTON FIELDS, P.A. gram until rules have been adopted by the ment districts until a county population ex- BOT. ceeds 150,000, and eliminates the current guarantee of 10 consecutive payments regard- Working Waterfronts less of changes in eligibility. The Florida Communities Trust (trust) is required to de- The bill creates the Stan Mayfield Working velop a ranking list of projects based on the Waterfronts Program within the Florida Com- criteria established in rule, and submit the list munity Trust (FCT) program. Working Wa- to the BOT by the first BOT meeting each Feb- terfronts are defined as parcels of lands ruary. The BOT may remove, but not add, directly used for the commercial harvest of projects to the list, approve grant awards, saltwater products and the marketing of acquisitions, and terms of less than fee seafood and aquaculture. The FCT and the simple acquisitions. The trust is required to DACS are to jointly develop rules to adminis- implement a process to monitor and evaluate ter the program and to develop a process that projects. evaluates, scores and ranks working water- front acquisitions. The rules must establish a Surplus Lands system of weighted criteria that give increased priority to projects: The bill extends the notification period from 30 days to 45 days to the board of county com- o Within a municipality with a popula- missioners for the sale of state lands by the tion less than 30,000; or BOT.

o Within a municipality or area under The bill allows a local government to request intense growth and development that state lands be declared surplus for the pressures, as evidenced by a number purposes of providing water resource devel- of factors, including a determination opment projects, alternative water supply that the municipality’s growth rate projects, or other public facilities such as exceeds the average growth rate for schools, fire and police facilities. the state; or The bill provides specific guidance for the o Within the boundary of a community surplus of lands by the water management redevelopment agency established districts. The districts must first offer title to any pursuant to s. 163.356, F.S.; or lands acquired in whole or in part with Flor- ida Forever funds to the BOT, unless the o Adjacent to state-owned submerged lands are being surplused for one of the fol- lands designated as an aquatic pre- lowing reasons: serve identified in s. 258.39, F.S.; or o The land is used as linear facilities o Which provide a demonstrable for electric transmission or distri- benefit to the local economy. bution, telecommunications transmis- Both fee simple and less-than-fee acquisitions sion and distribution, pipeline trans- are authorized. mission or distribution, or public transportation corridors; Payment in Lieu of Taxes o A conservation easement on the land The bill extends “payment in lieu of taxes” is retained; made by the state and the water manage-

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o The land is exchanged for lands with involve NPDES permittees, under certain a higher conservation value; and conditions. All regulated parties must fulfill their DEP permit obligations as they engage o The land is used by a governmental in water quality trading. For permits that are entity for a public purpose. issued by a federally authorized DEP program, DEP has the authority to assure con- The bill requires the DEP in its supervisory ca- sistency between any trading actions and pacity to ensure that the districts provide con- federal regulatory requirements. The bill sistent levels of public access to district lands, makes water quality credit trading available consistent with the purposes for which the to nonpoint source dischargers to supple- lands were acquired. ment their ability to meet pollutant load re- Subject to the Governor’s veto powers, the duction requirements through the implemen- effective date of this bill is July 1, 2008. tation of BMPs.

The bill requires DEP to incorporate trades CS/HB 547 into permits, BMAPs, certifications, or other Water Pollution Control binding mechanisms that assure enforceabil- The bill amends current law governing water ity, and requires DEP to establish, by rule, quality credit trading and authorizes the De- trading mechanisms and procedures, includ- partment of Environmental Protection (DEP) to ing a registry to track trades. Water quality adopt rules to implement a water quality credit trading is limited to the Lower St. Johns credit trading program. Water quality credit River Basin as a pilot project. trading is a voluntary, market-based ap- The bill requires that reasonable implementa- proach to promote the protection and restoration schedules necessary for reducing pollut- tion of Florida’s rivers, lakes, streams and ants in order to comply with water quality estuaries, and is intended to enhance other requirements be incorporated into the permit voluntary, regulatory and financial assistance revisions that would accompany most trades. programs already in place. The bill requires that by September 1, 2008, The bill authorizes Basin Management Action rulemaking for the water quality credit trad- Plans (BMAPs) to allow point or nonpoint ing program be initiated, and requires that at sources that will achieve greater pollutant the time of publication of the draft rules on reductions than required by an adopted Total water quality credit trading, the DEP submit a Maximum Daily Load (TMDL) or wasteload copy to the United States Environmental Pro- allocation to generate, register, and trade tection Agency for review. water quality credits for the excess reductions to enable other sources to achieve The bill allows DEP to authorize water quality their allocation. The generation of water credit trading and establish specific require- quality credits does not remove the obliga- ments for trading in the adopted basin man- tion of a source or activity to meet applicable agement action plan for the Lower St. Johns technology requirements or adopted best River Basin prior to the adoption of rules re- management practices (BMPs). The plans quired by the bill in order to effectively im- must allow trading between National Pollut- plement the pilot project. Entities that partici- ant Discharge Elimination System (NPDES) pate in water quality credit trades must timely permittees, and trading that may or may not report to the department the prices for cred-

70 CARLTON FIELDS, P.A. its, how the prices were determined, and and administrative issues. Among its key any state funding received for the facilities provisions, this bill: or activities that generated the credits. The department may not participate in the estab- Planning lishment of credit prices. o Revises requirements for comprehen- No later than 24 months after adoption of sive plans to provide for airports, land the basin management action plan for the adjacent to airports, and certain in- Lower St. Johns River, the department is re- terlocal agreements relating to cer- quired to submit a report to the Governor, the tain elements of local government President of the Senate, and the Speaker of comprehensive plans to better inte- the House of Representatives on the effective- grate airport planning and adjacent ness of the pilot project, including the follow- land uses through the local planning ing information: process;

o A summary of how water quality o Provides legislative findings relative to credit trading was implemented, in- transportation concurrency backlogs cluding the number of pounds of pol- and authorizes transportation concur- lutants traded. rency backlog authorities to issue bonds. The 25 percent tax increment o A description of the individual trades financing rate for ad valorem tax and estimated pollutant load reductions proceeds may be exceeded through that are expected to result from each an interlocal agreement of all af- trade. fected taxing authorities;

o A description of any conditions o Provides that facilities determined by placed on trades. the Department of Community Affairs and the applicable general purpose o Prices associated with the trades, as local government to be port-related reported by the traders. industrial or commercial projects are not considered to be a development o A recommendation as to whether other of regional impact provided they are areas of the state would benefit from located within 3 miles of a port and water quality credit trading and, if so, rely upon the utilization of port and an identification of the statutory intermodal transportation facilities or changes necessary to expand the are in a port master plan area; and scope of trading. Directs the Department of Transpor- Subject to the Governor’s veto powers, the o tation (DOT) to develop a method- effective date of this bill is July 1, 2008. ology that recognizes some developments, due to their size, location, CS/CS/SB 682 and mix of uses can result in at least Department of Transportation 30 percent of the traffic generated in CS/HB 682 is an omnibus bill that addresses the development remaining in the de- a variety of transportation financing, planning, velopment. The methodology, known as “internal capture,” is to be based

71 2008 LEGISLATIVE REPORT

on professionally accepted modeling repayment agreements with these counties techniques that reflect these larger for up to 30 years. mixed use developments of regional impact. This must be accomplished Tolling by March 2009. o Authorizes DOT to request the issu- Contract Administration ance of bonds secured by revenues collected on HOT/express lanes on o Authorizes DOT to pay stipends to I-95 in Broward and Miami-Dade firms that have submitted responsive counties. Tolls may continue to be col- proposals for construction and main- lected after the discharge of any tenance contracts and were not the bond indebtedness but must first be successful bidder; used for operation and maintenance of the HOT/express lane project or o Sets the goal for DOT to let design- associated transportation project. Any build contracts for 25 percent of its ca- remaining toll revenues may be used pacity construction contracts; for the construction, maintenance, or improvement of any road on the o Revises surety bond recording re- State Highway System. DOT is author- quirements. Under the bill, contractors ized to implement variable toll rates would be required to maintain copies on the HOT/express lanes. Except for of surety bonds at their principal HOT/express lanes, no tolls may be place of business and at the jobsite charged on any interstate highway rather than in the county public re- where tolls were not being charged cords. Copies of the surety bonds on July 1, 1997; would also remain available from DOT; and o Directs DOT to pursue and implement technologies and processes to provide o Increases the maximum amount of all electronic toll collections and re- project agreements within the Local quires that all new and replacement Government Reimbursement Program electronic toll collection systems be- that may be advanced from outside longing to other toll entities be inter- the adopted work program from operable with the DOT's system; and $100 million to $250 million. Provides for alternative tolling and The bill also creates a new reimbursement o payment methods including video program for counties with a population of billing and variable pricing. The revi- 150,000 or less. The program authorizes sions also require DOT’s Turnpike En- DOT to enter into agreements with govern- terprise to individually solicit competi- mental entities to advance a maximum of tive responses to contracts that in- $200 million in projects or project phases clude, but are not limited to, fuel, from outside the five-year adopted work pro- food, maintenance, and construc- gram. Projects included in these agreements tion contracts for the Turnpike System must also be included in the governmental Toll Plazas. entity’s comprehensive plan. This new program authorizes DOT to enter into long-term

72 CARLTON FIELDS, P.A.

Utilities o Revises provisions for the denial or revocation of a sign permit for viola- o Requires DOT or a local governmental tions. Any notice of a violation must entity to pay the cost of relocation of a include a detailed description of the utility interfering with public road or violation; publicly owned rail corridor improvements if the utility facility serves o Revises provisions relating to a mu- the DOT or governmental entity exclu- nicipality's or county's ability to per- sively; and requires DOT to pay costs mit and regulate wall murals as 'cus- associated with certain underground tomary use' under federal law. The utility relocations; and bill allows a determination of custom- ary use, whereby the determination o Authorizes DOT to direct the relocation overrides the controls in the agreement or removal of public pay telephones if between DOT and the United States they present an endangerment to life Department of Transportation; or property. o Expands the services for which the in- o The revisions also allow public pay terstate highway logo sign program is telephones, including advertising, to applicable. DOT is authorized to im- be installed within governmental right- plement a three-year rotation system to of-way limits under certain circum- provide for the removal or addition of stances. Written authorization by the participating businesses. Permit fees appropriate local governmental en- are to be established based on tity is required before pay phones market demand, population, traffic can be installed. volume, and costs but may not exceed $5,000 in urban areas or Outdoor Advertising $2,500 in other areas; and o Prohibits un-permitted signs outside ur- Creates a business partnership pilot ban areas, rather than incorporated o program which authorizes the Palm areas. The provisions revise require- Beach County School District to dis- ments for display of sign permit tags play names of business partners on and direct DOT to establish, by rule, district property in unincorporated a fee for furnishing a replacement areas. permit tag in an amount that covers the actual cost of the tag. The bill Expressway and Transit Authorities relegates the permitting of signs viewable from two or more roads in o Requires the members of each statu- separate jurisdictions to the more torily-created expressway authority, stringent requirements. The bill adds transportation authority, bridge au- Hillsborough County and the City of thority, and toll authority to comply Miami to a pilot program reducing the with constitutional financial disclosure allowable minimum distance between requirements. The Miami-Dade Ex- signs to 1,000 feet if all other re- pressway Authority currently is requirements are met; quired to comply;

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o Authorizes expressway authorities, at vehicles currently exempted from their discretion, to increase tolls to the child restraint and safety belt re- Consumer Price Index, or similar in- quirements. flation factor, at least every 5 years, but no more frequent than once a Miscellaneous year, if the authority’s executive o Directs the department to complete a board attains a majority vote in a study of transportation alternatives for public meeting; and the travel corridor parallel to Interstate o Abolishes the non-functioning Tampa 95 which takes into account the Bay Commuter Transit Authority. transportation, emergency management, homeland security, and eco- Motor Vehicles and Drivers’ Licenses nomic development needs of the state; o Redefines hybrid vehicles as it relates to their ability to use high-occupancy- o Provides for the salary and benefits of vehicle (HOV) lanes. DOT is author- the executive director of the Florida ized to limit or discontinue issuance Transportation Commission to be es- of certifications which permit hybrids tablished in accordance with Senior to use HOV lanes as a single- Management Service provisions; occupant-vehicle if the HOV lane becomes congested. Requires all hybrid o Prohibits any county, municipality, or and other low emission and energy special district from owning or operat- efficient vehicles using the HOV ing an asphalt plant or a portable or lanes to comply with federally man- stationary concrete batch plant having dated minimum fuel economy stan- an independent mixer; grandfathers in dards; counties with plants prior to April 15, 2008; o Lowers the blood and breath alcohol level (BAL) for the purposes of trigger- o Revises the sunset date of the Strate- ing driving under the influence en- gic Aggregate Task Force to June 30, hanced penalties to maintain eligi- 2009; bility for federal safety grant fund- o Revises the notification process used ing; and provides that when a person by DOT when amending the work who is in possession of a commercial program. Under the revisions, DOT driver’s license (CDL) is found to be must notify each affected municipality, driving under the influence, his or her metropolitan planning organization, CDL shall be disqualified regardless and county when deleting or defer- of the vehicle driven at the time of the ring capacity-enhancing projects. violation; and DOT must include comments received o Provides for exemptions from child re- from affected bodies in its prepara- straint and safety belt requirements. tion of work program amendments; The revisions raise the current 5,000 o Reenacts the Small County Resurfacing pound maximum to 26,000 pounds, Assistance Program (SCRAP) in fiscal effectively reducing the number of

74 CARLTON FIELDS, P.A.

year 2012-2013 and does not pro- habilitation agreement. In addition, reme- vide for a sunset of the program; and diation preapproval contractors or their as- signees are required to pay subcontractors o Authorizes the use of, but does not ap- in accordance with the prompt payment propriate, public funds for certain non- provisions of section 287.0585(1), F.S. The capacity improvements to Old Cutler bill also states that section 287.0585(2), Road in Miami-Dade County. F.S., which provides for an alternative to the prompt payment provisions, shall not apply to Subject to the Governor’s veto powers, the preapproval site rehabilitation agreements. bill is effective upon becoming law. By raising the state funding assistance caps, HB 961 the bill may extend the Petroleum Cleanup Cleanup of Sites Contaminated by Program by five years. Petroleum Subject to the Governor’s veto powers, the The bill increases the restoration cap amount effective date of this bill is July 1, 2008. for the Petroleum Cleanup Participation Pro- gram from $300,000 to $400,000. For the Florida Petroleum Liability and Restoration In- CS/CS/SB 1094 surance Program, the $1 million cap is in- Gambling Vessels/Clean Ocean Act creased to $1.2 million, the $300,000 cap is The bill creates section 376.25, F.S., cited increased to $400,000, and the $150,000 as the “Clean Ocean Act.” The bill provides cap is increased to $300,000. definitions relating to different types of “waste” (biomedical waste, hazardous waste, In all cases these cap increases only apply to oily bilge water, sewage, blackwater and Petroleum Cleanup Participation Program and graywater), defines what constitutes a Florida Petroleum Liability and Restoration “berth” for purposes of this section and de- Insurance Program eligible sites where the fines “coastal waters.” The bill specifically Department of Environmental Protection (DEP) excludes traditional cruise ships from the defi- has not issued a site rehabilitation comple- nition of “gambling vessel.” The bill author- tion order prior to June 1, 2008, indicating izes the Department of Environmental Protec- that the discharge has been remediated. tion (DEP) to adopt rules to implement and These cap increases also apply to sites that administer the provisions provided for in the have reached the current statutory caps and bill. have transitioned to the party responsible for the contamination for completion of the The bill requires owner/operators of gam- cleanup. Expenses incurred for such sites bling vessels (sometimes referred to as “day that have transitioned out of state funding cruises” or “cruises to nowhere”) to register due to reaching the increased caps are not under oath with the DEP on an annual ba- reimbursable. sis. Registration must include the business name of the owner/operator of each vessel, The bill also requires a remediation preap- contact information, and the registered agent proval contractor to submit an invoice within for service of process located in the state. In 30 days after the date of the DEP’s written addition the registration must list the vessel’s acceptance of each interim deliverable or name or call sign, its port of registry, berth the final deliverable specified in a site relocation, passenger and crew capacity, and

75 2008 LEGISLATIVE REPORT a weekly schedule of the vessel’s operation ting. The bill requires a vessel to report the as a gambling vessel in coastal waters for discharge of any waste. A vessel that dis- the calendar year. Finally, the registration charges for the purpose of securing the must describe the waste treatment system of safety of the vessel or saving life at sea is not each registered vessel by type, design, op- required to notify the DEP of the release. eration and location of all discharge pipes, including the capacity of the holding tank(s). The Act is intended to supplement and not The registrant has a continuing obligation conflict with federal law, and provides for during the period the registration is valid several exemptions, including U.S. military to advise the department of any change in vessels, and any gambling vessel that oper- the information provided. ates a marine waste treatment system that produces sterile, clear and odorless reuse The DEP is required to estimate the minimum water without generating solid waste, and volume of waste that is reasonably expected which eliminates the need to pump out or to be released from registered gambling ves- dump wastewater. The Act does not require a sels based upon the information provided by person holding a valid National Pollutant Dis- the registrants and to post the information on charge Elimination System (NPDES) permit the department’s website. governing releases from a gambling vessel to violate the permit. The bill requires an owner/operator of a gambling vessel berth location to establish A violation of the act subjects the actor to procedures for the release of waste from a civil penalty of not more than $50,000 gambling vessels and to make available a for each violation. The DEP is required to waste-management service to handle and consider all relevant circumstances when de- dispose of the vessel’s waste, based upon termining the amount of civil penalties to im- the department’s calculations. The pose, including the degree of toxicity and owner/operator of the berth location must volume of the release, the extent of harm collect a fee not to exceed the costs associ- caused by the violation, whether the effects ated with making the waste-management can be reversed or mitigated, and the de- service available to each Berthed gambling fendant’s ability to pay, prior history of viola- vessel. tions, and economic benefit.

The bill requires that an owner/operator of a The DEP is required to establish and collect gambling vessel that releases any waste into fees that are adequate to cover the entire cost coastal waters must report that release to the to the DEP for developing the database for DEP within 24 hours of the release. A vessel vessel registration, for tracking releases, for that discharges for the purpose of securing compliance with the Act, and for enforce- the safety of the vessel or saving life at sea is ment. not required to notify the DEP of the release. The bill instructs the DEP to submit a request The bill defines “waste” to include sewage, by August 1, 2008, to the U.S. Secretary of oily bilge water, treated graywater, un- Commerce to propose that the Florida treated graywater, treated blackwater, un- Coastal Zone Management Program be treated blackwater, or hazardous waste. amended to include this Act. Furthermore, the bill defines “release” to include any discharge, leak, escape, or emit-

76 CARLTON FIELDS, P.A.

If the Secretary of Commerce approves the fishing licenses that will allow for adjust- amendment of the Florida Coastal Zone ments every 5 years unless proscribed by Management Act, the DEP must request the general law. appropriate federal authorities to prohibit the release of waste from gambling vessels in any Finally, the bill directs reviews by OPPAGA waters that could affect the coastal waters of of several programs to determine if there are the state. The DEP is directed to request the any cost-saving benefits or efficiencies, in- appropriate federal authorities to prohibit cluding: the release of waste within federal territo- o FWC’s public relations and outreach rial waters off the coast of the state. staffing in their Executive Direction Subject to the Governor’s veto powers, the and Administrative Services division. effective date of this bill is July 1, 2008. o FWC’s outreach and education activities within the Freshwater Fisheries and CS/CS/SB 1286 Marine Fisheries Management divi- Fish and Wildlife Conservation sions. Commission o Complete a 5 year “Air Station” con- This bill is one of three conforming bills within ceptual plan designed to improve the Environment and Natural Resources agency aircraft operations and main- Council’s jurisdiction adopted by the Confer- tenance efficiency. ence Committee. o FWC’s current land management ac- The Florida Government Accountability Act tivities. requires the Florida Fish and Wildlife Conser- vation Commission (FWC) and its advisory o FWC’s Fish and Wildlife Research In- committees to be reviewed by July 1, stitute. 2008, to determine if it and its committees Subject to the Governor’s veto powers, the shall be retained, modified, or abolished. effective date of this bill is July 1, 2008. This bill reenacts provisions pertaining to the Florida Fish and Wildlife Conservation Commission and makes statutory changes CS/CS/SB 1294 recommended in the agency sunset review Department of Environmental report. Protection In addition, this bill contains a vessel registra- This bill is one of three conforming bills within tion fee adjustment to continue to support law the Environment and Natural Resources Coun- enforcement activities within the commis- cil’s jurisdiction adopted by the Conference sion. These vessel registration fees have Committee. not been increased since 1992. The in- The Florida Government Accountability Act creases will correspond to the increase in requires the Department of Environmental the Consumer Price Index from 1992 to to- Protection (DEP) and its advisory committees day. The increase in fees will generate ap- to be reviewed by July 1, 2008, to determine proximately $10.2 million. This bill also has if it and its committees should be retained, CPI indexing provisions for vessel registra- modified, or abolished. This bill reenacts pro- tion fees and for recreational hunting and

77 2008 LEGISLATIVE REPORT visions pertaining to the department and o Amends statutes relating to environ- makes statutory changes recommended in the mental data and quality assurance to agency sunset review report. allow the DEP to adopt rules and establish quality objectives for training In addition, the conforming bill provides the laboratory staff and field sampling ac- following: tivities;

o Provides for a revised organizational o Revises and establishes fees associ- structure within the DEP by creating ated within the environmental re- and renaming certain departments source permitting and drinking water and offices; programs;

o Establishes an additional phosphate o Revises renewal of certain license severance surcharge to generate requirements within the DEP; $60 million in revenue to be deposited into the Nonmandatory Land Rec- o Restricts the DEP from issuing any lamation Trust Fund for land reclama- permit for a Class I landfill to be lo- tion activities associated with Piney cated on or adjacent to a Class III Point and Mulberry sites and for other landfill that was permitted on or be- approved reclamation of nonmanda- fore January 1, 2006, and that is lo- tory lands; cated in the Southern Water Use Caution Area; o Provides for a transfer of the Invasive Plant Bureau in the DEP to the Fish and o Repeals s. 378.011, F.S., relating to Wildlife Conservation Commission Land Use Advisory Committee; with the exception of the permitting program component related to the o Repeals chapter 325, F.S., relating to nonnursery cultivation, collection motor vehicle refrigerants and emis- and sale of aquatic species which sions; and is transferred to the Department of o Repeals s. 403.08725, F.S., relating Agriculture and Consumer Services; to citrus juice processing facilities. Changes the date to January 1, o Subject to the Governor’s veto powers, the ef- 2011, for water management dis- fective date of this bill is upon becoming law tricts, various state agencies, and as- except as otherwise provided. sociations to review standards and guidelines relating to landscape irri- gation design; CS/CS/SB 1302 Wastewater Disposal/Ocean Outfalls o Requires a registered dry-cleaning The bill directs the South Florida Water facility to display a valid and current Management District (SFWMD) to include certificate evidencing registration water resource and water supply development with the DEP; projects that promote the elimination of waste- o Revises "regulated air pollutant" water ocean outfalls within its regional water definition; supply plan. It also provides that such projects should be given first consideration for state

78 CARLTON FIELDS, P.A. or water management district (WMD) fund- The bill creates a reporting schedule for ing assistance. Subject to specified condi- permit holders who discharge domestic tions, the SFWMD must require the use of re- wastewater through ocean outfalls. Permit claimed water made available by the elimina- holders are required to detail the plan to tion of the wastewater ocean outfalls as part meet the requirements of the act and provide of their consumptive use permitting process. a summary of actions accomplished to date. The bill provides a reporting schedule The bill prohibits the new construction or ex- for the DEP to summarize the progress to pansion of wastewater ocean outfalls and date, to be submitted to the Legislature. limits the discharge of wastewater through ocean outfalls to the permitted capacity in The bill establishes the Leah Schad Memo- effect on July 1, 2008. It requires that dis- rial Ocean Outfall Program. As funds be- charge of domestic wastewater through come available, the bill allows the state to ocean outfalls meet advanced wastewater assist local governments and agencies re- treatment and management requirements no sponsible for implementing the requirements later than December 31, 2018. Such re- for domestic wastewater disposal. Funds requirements are defined to include those set ceived from sources provided for in law and forth in s. 403.086 (4), F.S.; a reduction in the General Appropriations Act; gifts desig- baseline loadings of total nitrogen and total nated for such disposal requirements from phosphorus, equivalent to advanced waste- individuals, corporations, or other entities; or water treatment requirements in s. 403.086 federal funds appropriated by the United (4), F.S., or a reduction in cumulative out- States Congress for implementation of such fall loadings of total nitrogen and total disposal requirements may be deposited into phosphorus occurring between December a designated account within the Ecosystem 31, 2008 and December 31, 2025, which is Management and Restoration Trust Fund. equivalent to that which would be achieved if the requirements of s. 403.086 (4), F.S., Subject to the Governor’s veto powers, the were fully implemented December 31, 2018, effective date of this bill is July 1, 2008. and continued through December 31, 2025, as determined by the Department of Envi- CS/HB 1427 ronmental Protection (DEP) pursuant to Beach Management specified criteria, by December 31, 2018. The bill provides legislative intent to direct and It provides an exemption to treatment stan- commit the state’s beach management efforts dards for those facilities that meet 100 per- to address beach erosion caused by Florida’s cent reuse for domestic wastewater dis- inlets, and declares that it is in the public in- charge by the same date. terest to replicate the natural flow of sand at The bill requires all facilities that discharge inlets. wastewater through ocean outfalls to The bill also: achieve, at a minimum, 60 percent reuse of the facilities actual annual flow by December o Directs that all beach quality sand 31, 2025, and prohibits discharge through associated with inlet construction ocean outfalls beyond that date, unless as a and maintenance dredging, includ- backup to the functioning reuse system. ing that at federal inlets, be placed on adjacent beaches, and that the De-

79 2008 LEGISLATIVE REPORT

partment of Environmental Protection Subject to the Governor’s veto powers, the (DEP) maintain current estimates of effective date of this bill is July 1, 2008. the natural net annual transport vol-

ume of sand at all inlets and ensure CS/SB 1552 that these volumes be placed on ad- Everglades Restoration Bonds jacent eroding beaches; The bill extends the authorized issuance and o Requires a port to follow its port master maturity of Everglades restoration bonds, plan and DEP permits in a port’s effort which are deposited into the Save Our Ever- to place beach quality sand from glades Trust Fund, by an additional ten years dredging and construction projects on to FY 2019-2020. The bill expands the is- eroding beaches, and provides for suance of Everglades restoration bonds to inland navigation districts to partici- include costs associated with the Florida pate in the local government’s or the Keys Area of Critical State Concern protec- port’s plan regarding sand recovery; tion program to restore and conserve natural systems through the implementation of water o Provides for undertaking studies management projects, including wastewater and assessments for determining management projects identified in the Keys the cost-sharing responsibilities Wastewater Plan dated November 2007. among entities associated with the The bill authorizes, subject to future Legisla- extent of erosion caused by inlets; tive authorization, an additional amount of o Directs the DEP to protect the state’s bonds not to exceed $50 million per fiscal investment in beach nourishment pro- year, for no more than 4 fiscal years, spe- jects within an inlet’s zone of influ- cifically for the purpose of funding the Flor- ence by taking all reasonable action ida Keys Area of Critical State Concern pro- to reinstate the natural flow of sand in tection program. disputes between beneficiaries of the Subject to specific appropriation, the De- inlet, local governments, or adjacent partment of Environmental Protection (DEP) inlet property owners, regarding how shall use moneys from the Save Our Ever- much sand should be by-passed; glades Trust Fund to fund projects identified in and, the Keys Wastewater Plan. The DEP may o Creates a new section in Chapter establish requirements, through grant 161, F.S., specifically for inlet man- agreements or other contractual arrange- agement. It addresses plan developments, to ensure the timely construction of ment, establishes annual funding projects and expenditure of appropriated priorities for studies, projects, or funds by the local governments in Monroe other activities relating to inlet County, including, but not limited to, project management, requires separate implementation deadlines, local matching ranking criteria exclusively for inlet requirements, fair and competitive pro- management and specific funding curement requirements, and financial track- provisions, and provides for the des- ing requirements. ignation of an Inlet of the Year. Beginning July 1, 2010, the Legislature shall analyze the state's ratio of debt in relation to projected revenues prior to the authorization

80 CARLTON FIELDS, P.A. to issue any bonds under the provisions of der the Leadership in Energy and En- this bill. vironmental Design program, or the development is registered by an al- The bill defines the “Keys Wastewater ternate green building rating system Plan” as the plan prepared by the Monroe that the local government approves County Engineering Division dated Novem- by resolution. ber 2007 and submitted to the Florida House of Representatives on December 4, 2007. The bill also clarifies the three-year extension provided in 2007 for the phase, buildout, Subject to the Governor’s veto powers, the commencement, and expiration dates applied effective date of this bill is July 1, 2008. to DRI and related local approvals. Further, the bill modifies the qualifying developments CS/SB 1706 to include Florida Quality Developments as Developments of Regional Impact defined by s. 380.061, Florida Statutes, and developments for which a development order CS/SB 1706 amends s. 380.06, Florida Stat- was adopted between January 1, 2006, and utes, to exempt certain developments that in- July 1, 2007, regardless of whether or not clude an office or laboratory appropriate for active construction has commenced. the research and development of medical technology, biotechnology, or life science Subject to the Governor’s veto powers, the applications from a development-of-regional effective date of this bill is July 1, 2008. impact (DRI) review if the specified conditions detailed below are met: CS/CS/CS/SB 1992 o The development must be located Department of Highway Safety and within a county having a population Motor Vehicles greater than 1.25 million. This cur- This legislation addresses Department of rently qualifies Broward, Miami-Dade Highway Safety and Motor Vehicles’ and Palm Beach counties. (DHSMV) issues related to federal motor carrier safety requirements, commercial driver’s o The land is located in a designated licenses, and compliance with the federal urban infill area or within five miles of REAL ID Act. Many of these changes are a state supported biotechnical re- necessary to ensure the state’s continued search facility or the local govern- receipt of federal funds. Other provisions in ment adopts a resolution recognizing the bill are technical or administrative in na- the land is located in a compact, ture and will have no fiscal impact. high-intensity, and high density multi- use area. High Occupancy Vehicle (HOV) lanes

o The land is located within three-fourths With regard to HOV lanes, the bill: of one mile from one or more planned bus or light rail transit stops. o Requires all hybrid and other low- emission and energy-efficient vehicles o The development is registered with that do not meet the minimum occu- the United States Green Building pancy requirement and are driven Council and there is intent to apply in an HOV lane to comply with fed- for certification of each building un-

81 2008 LEGISLATIVE REPORT

erally mandated minimum fuel Drag Racing; Spectators economy standards and requires the Florida Department of Transpor- The bill creates a definition for the term tation (FDOT) to review and provide “spectator” in s. 316.191, Florida Statutes, its recommendations to the Legislature relating to illegal drag racing, and prohibits of any statutory changes necessary being a spectator at such a race. Violation of to comply with EPA’s final rule re- this prohibition is a moving violation punish- lated to the eligibility of hybrid and able as provided in Chapter 318, Florida other low-emission energy-efficient ve- Statutes. Section 318.18(3)(a), Florida Stat- hicles that may operate in an HOV utes, calls for a $60 fine (plus court costs lane regardless of occupancy; and surcharges which vary by county) for a moving violation. o Provides for determination of continued eligibility of hybrid and other low- DUI Offenses; Ignition Interlock Devices emission and energy-efficient vehicles The bill lowers the threshold for DUI-related for operation in an HOV lane; enhanced penalties and mandatory adjudica- o Authorizes limitation or discontinu- tion from a blood-alcohol level (BAL) of .20 ance of vehicle decals for use in an grams to a BAL of .15 grams. It also pro- HOV lane if the facilities are de- vides that the six-month and two-year peri- graded due to congestion; ods of required ignition interlock device usage provided in s. 316.193, Florida Stat- o Provides that vehicles eligible to be utes, must run continuously. driven in an HOV lane that is re- designated as a HOT lane may con- The bill provides that persons who commit tinue to be driven in the HOT lane more than three times any violation of ignition without payment of a toll; and interlock device requirements must attend a DUI program course specified by s. o Transfers rulemaking responsibility 322.291, Florida Statutes, and use the igni- with regard to HOV lanes from tion interlock device for an additional month DHSMV to FDOT. beyond the otherwise-required timeframe.

Rail Crossings Traffic School Elections

The bill provides that all persons approaching The bill amends s. 318.14, Florida Statutes, a railroad-highway grade must stop when a allowing drivers committing non-criminal traf- law enforcement officer indicates that a train fic offenses to avoid certain penalties by is approaching. taking a basic driver improvement course. Under the bill, offenders may elect to take School Zones the course up to five (5) times within ten (10) years. Current law provides for a lifetime The bill requires FDOT to establish “Speed- limit of five (5) times. ing Fines Doubled” signage which must be installed in all newly established school Child Restraints and Safety Belts zones or when school zone signs are re- placed. The bill expands the use of child restraints and seat-belt usage to motor vehicles weigh-

82 CARLTON FIELDS, P.A. ing up to 26,000 pounds. Current law ex- tabase.” This will allow DHSMV to imple- empts vehicles over 5,000 pounds from child ment a more efficient paperless title system. restraint and safety belt requirements. Motorcycles; Registration Motor Carrier Compliance Office The bill adds an exception to the definition of The bill amends s. 316.302, Florida Statutes, motorcycle for those vehicles “in which the relating to commercial motor vehicles, safety operator is enclosed by a cabin.” The bill regulations, transporting of hazardous equip- also removes the endorsement-before- ment, and enforcement. The bill makes techni- registration provision from s. 320.02, Florida cal changes to an FDOT requirement to per- Statutes. As a result, owners will continue to form certain duties assigned under federal be able to register a motorcycle or moped rules and to a federal reference governing without obtaining a motorcycle drivers’ li- out-of-service requirements for commercial cense endorsement in advance. vehicles. Voluntary Contribution Check-offs Arrest Authority; Traffic Citations The bill removes requirements that a voluntary The bill adds Chapter 320, Motor Vehicle contribution statement for the Election Cam- Licenses, to the list of “arrestable offenses” paign Financing Trust Fund be included on contained in s. 316.645, Florida Statutes. As certain DHSMV forms, as that particular trust a result, law enforcement officials may arrest fund expired November 4, 1996, by opera- any person committing any offense relating to tion of s. 19(f), Art. III of the State Constitu- registering a vehicle in the state. tion.

The bill also makes several grammatical Commercial Vehicle License Plates changes and modernizes the workflow between law enforcement agencies and the The bill provides that a violation of s. courts. It permits “electronic transmission” of 320.0706, Florida Statutes, regarding “replicas of the citation data,” rather than an proper placement of license plates on com- “electronic facsimile” of the citation, as cur- mercial vehicles weighing more than 26,000 rently provided, and permits “batches” of pounds, is a noncriminal traffic infraction electronic transmissions to be transmitted to punishable as a moving violation pursuant courts electronically. Under the bill, law en- to Chapter 318. Section 318.18(3)(a), forcement officers may collect fingerprints Florida Statutes, calls for a $60 fine (plus electronically. court costs and surcharges which vary by county) for a moving violation. Certificates of Title International Registration Plan The bill defines “certificate of title,” for purposes of Chapter 319, Florida Statutes, stat- The bill authorizes DHSMV to withhold vehi- ing that a certificate of title is the ownership cle registrations and license plates if a car- record for a vehicle, “whether a paper docu- rier fails to supply its appropriate federal ment authorized by the department or a cer- identifying number. The department may sub- tificate consisting of information that is stored sequently refuse to issue registrations, or sus- in an electronic form in the department’s da- pend existing registrations, if the carrier or vehicle operator has been prohibited from

83 2008 LEGISLATIVE REPORT operating by a federal or state agency re- express rulemaking authority to administer sponsible for motor carrier safety. these provisions.

Specialty Tags Automobile Dealer Insurance Requirements

The bill modifies the specialty tag design Currently, all motor vehicle dealers are re- process by removing paragraph (3) from s. quired to have a “garage” liability insurance 316.08053, Florida Statutes, containing some policy. Under the bill, franchise motor vehicle of the agency’s rulemaking authority, in favor dealers are still required to carry a garage of existing statutory design standards. liability insurance policy, but all other dealers may alternatively provide proof of a general The bill amends the requirements for a Gold liability policy coupled with a business auto- Star license plate to allow Florida residents to mobile policy. receive a plate regardless of whether the service member in their family who was killed Drivers’ Licenses and ID Cards Generally while serving was also a Floridian. The bill clarifies the definition of “hazard- The bill also directs DHSMV not to issue any ous materials” by citing additional federal new specialty license plates between July 1, regulations related to required endorse- 2008 and July 1, 2011. The bill exempts ments to commercial drivers’ licenses to from this prohibition any group that has transport such materials. It adds a definition submitted a letter of intent prior to May 2, of “convenience service” to explain transac- 2008, and has submitted a valid survey, tions made electronically, by mail, or tele- marketing strategy, and application fee prior phonically, and clarifies that a renewal may to October 1, 2008, or any group included be made via a convenience service only in a bill filed during the 2008 Legislative Ses- once. sion. The bill provides for a gradual phase-out of Temporary Motor Vehicle License Tags “Florida Only” licenses. Current licenses will be valid until the stated expiration, but new The bill removes the option of attaching a “Florida Only” licenses may not be issued temporary tag to the inside of the motor vehi- after July 1, 2009. For both ID cards and cle’s rear window, and requires DHSMV to drivers’ licenses, standards are clarified to designate specifications for non-permeable or ensure that social security and proof-of- otherwise weatherproofed tag media to pro- resident documents are “satisfactory to the tect the tag’s structural integrity. department.” The bill clarifies that passports, green cards, and employment authorization The bill requires the DHSMV to implement cards must be valid and unexpired. In addi- the print-on-demand electronic system by the tion, a new identity document is added, the end of the 2007-2008 fiscal year, and pro- “Consular Report of Birth Abroad, provided vides that issuers may continue to use a by the United States Department of State,” backup manual-issuance system when the and fee provisions are moved to a new stat- electronic system is not working. ute. Motor vehicle dealers are authorized under The bill amends the current requirement the bill to charge a fee to comply with the that licenses contain a “mailing” address. requirements, and the department is granted Under the bill, drivers’ licenses must con-

84 CARLTON FIELDS, P.A. tain the “residential” address instead. The ing. It also increases the penalty for first and bill also modifies expiration dates of ID subsequent DUI offenses to match the penal- cards and drivers’ licenses. ID cards for ties for a first and subsequent refusal to children under five continue to have a term submit to testing. Under the bill, the first DUI of four years, but for persons between five violation results in a one year disqualification, and 15, the valid term is raised to eight and the second offense results in permanent years. Drivers’ license terms (both original disqualification. issuance and renewals) are raised to eight years, however, persons over 80 will con- The bill clarifies that a person disqualified un- tinue to expire every six years. der s. 322.64, Florida Statutes is not entitled to a hardship reinstatement of a commercial Florida At-Risk Driving Council vehicle license under s. 322.271, Florida Statutes, but only a license to operate a non- The bill repeals s. 322.181, Florida Statutes, commercial vehicle. deleting language regarding the defunct Florida At-Risk Driving Council. Automobile Lenders Industry Task Force

Unauthorized Operators It creates within DHSMV the Automobile Lend- ers Industry Task Force. This task force, con- It requires a one-year suspension of a per- sisting largely of private sector officials rep- son’s driver’s license, if that person knowingly resenting industries related to automobile loans a vehicle to a person whose driver’s li- lending, is directed to make recommenda- cense is suspended and the vehicle is involved tions on proposed legislation and other is- in an accident resulting in bodily injury or sues and make a full report to the Speaker of death. the House of Representatives, the President of the Senate, and the Governor by June 30, Commercial Drivers’ Licenses; Vehicle Regis- 2009, at which time it shall cease to exist. tration; Disqualification Subject to the Governor’s veto powers, the It provides that a person holding a commer- effective date of this bill is October 1, 2008 cial drivers’ license (“CDL”) may not possess except as otherwise provided. more than one drivers’ license. Under the bill, certain DUI-related offenses result in the suspension of a CDL, even if the offense itself CS/SB 2052 occurs in a non-commercial vehicle. The bill Water and Wastewater Utilities also clarifies the definition of “out-of-service This legislation increases the gross annual order” in s. 322.01, Florida Statutes, to pro- revenue level for private water and wastewa- vide that a prohibition need not be limited to ter utilities to qualify for a staff-assisted rate 72 hours. case from the Public Service Commission The bill allows law enforcement officers to (“PSC”). This revenue cap is increased from immediately disqualify not only drivers of $150,000 to $250,000 to adjust for infla- commercial motor vehicles who commit DUI tion. The PSC is required to adjust the level offenses or refuse to submit to DUI testing, but once every five years based on the price in- also commercial drivers’ license holders op- dex the PSC establishes for water and erating non-commercial vehicles who commit wastewater utilities. Once every five years, DUI offenses or refuse to submit to DUI test- the PSC is also required to submit a report

85 2008 LEGISLATIVE REPORT to the Legislature on the status of staff- licenses may not be issued after July assisted rate cases. 1, 2009;

Subject to the Governor’s veto powers, the o Clarifies that passports, green cards, effective date of this bill is July 1, 2008. and employment authorization cards must be valid and unexpired;

HB 5067 o Modifies expiration dates of ID cards State Infrastructure and drivers’ licenses. ID cards for HB 5067 makes statutory changes necessary children under five continue to have a to conform to the General Appropriations Act term of four years, but for persons be- for Fiscal Year 2008-2009 and to implement tween five and 15, the valid term is program reductions and efficiencies relating to raised to eight years. Drivers’ license the Department of Community Affairs, the De- terms (both original issuance and re- partment of Highway Safety and Motor Vehi- newals) are raised to eight years, cles (DHSMV), and the Department of Trans- however, persons over 80 will con- portation (DOT). Specific provisions in the tinue to expire every six years; bill include: o Requires that a license indicate a mail- o Authorizes the DHSMV to issue elec- ing address for the residence address tronic certificates of title and to collect of the licensee; and e-mail addresses of vehicle owners o Eliminates licensees’ ability to extend and registrants for notification pur- a license term or change addresses poses related to vehicle titles; via sticker. o Reenacts the Department of Highway Department of Transportation Safety and Motor Vehicles; Author- izes DHSMV, at its discretion, to o Requires DOT’s Turnpike Enterprise waive the hardship hearing require- to individually solicit competitive re- ments following a drivers’ license sus- sponses to contracts that include, but pension after review of the driver his- are not limited to, fuel, food, mainte- tory and to reinstate the license on a nance, and construction contracts for restricted basis for business and em- the Turnpike System Toll Plazas; and ployment purposes for non-egregious first time offenders; o Revises the mandatory 1.5 percent landscaping requirement for DOT con- o Authorizes DHSMV to make neces- struction contracts to make the inclu- sary changes to drivers’ license re- sion of these items permissive, rather quirements to implement the Federal than mandatory; REAL ID Act; Specifically the bill: Department of Community Affairs o Provides for a gradual phase-out of “Florida Only” licenses. Current li- o Directs DCA to develop grant admini- censes will be valid until the stated stration procurement procedures to be expiration, but new “Florida Only” used in the administration of community development block grants; such procedures shall not impose restric-

86 CARLTON FIELDS, P.A.

tions or requirements greater than agency must be documented as evidence those provided in the federal code; and then returned to their habitat unharmed, except for non-native species which may be o Authorizes the Florida Building released only as allowed by rules of the Fish Commission to conduct business by and Wildlife Conservation Commission teleconferencing; Removes the pro- (FWC). Proceeds from disposal of forfeited hibition that the Emergency Man- fish and game are credited to the investi- agement and Preparedness Assis- gating state and local law enforcement tance Trust Fund may only be used to agencies in proportion to their participation supplement, not supplant existing ex- in the enforcement action. penditures. Beginning July 1, 2010, and every 3 years Subject to the Governor’s veto powers, the ef- thereafter, the bill requires the state’s land fective date of this bill is July 1, 2008, unless managing agencies to prepare an opera- otherwise specified in the bill. tional report for each managed area. The report is to assess the land manager’s progress CS/HB 7059 toward achieving short term and long-term Protection of Wild and Aquatic Life land management goals of the approved management plan, identify any deficiencies The bill authorizes the Board of Trustees of in management and provide corrective ac- the Internal Improvement Trust Fund (BOT) to tions to address identified deficiencies. The provide for the establishment of seagrass operational report is to be submitted to the mitigation banks to offset unavoidable im- Division of State Lands (DSL) within the De- pacts to seagrasses by projects that are department of Environmental Protection termined to be in the public interest. (DEP) for inclusion in the Acquisition and The bill creates definitions for the terms “sea- Restoration Council’s (ARC) annual man- grasses” and “seagrass scarring” and creates agement review team report. penalties for any person who operates a ves- The bill further creates a three member moni- sel in a careless manner outside lawfully toring team, which will consist of one mem- marked channels and causes seagrass scar- ber selected by the Executive Director of the ring within an aquatic preserve. The bill pro- FWC who has experience with applied habi- vides uniform boating citation and escalating tat management, one member selected by the misdemeanor penalties for violations of boat- Secretary of the DEP who has experience with ing laws pertaining to seagrasses. public recreation or use administration, and The bill provides for the confiscation, forfei- one member selected by the Commissioner of ture and disposition of illegally taken wildlife, Agriculture who has experience with applied freshwater fish and saltwater fish (fish and land management. The DSL will provide the game). The bill provides that photographs of monitoring team with the operational report illegally taken fish and game may be deemed submitted by the land manager. The monitor- competent evidence admissible in judicial ing team is to review the operational report proceedings to the same extent as if the and is to prepare a monitoring report that physical items themselves were introduced as assesses the managing agency’s progress evidence. All live, unlawfully possessed fish toward achieving short-term and long-term and game seized by a law enforcement land management goals. Also, this monitor-

87 2008 LEGISLATIVE REPORT ing report is to propose corrective actions The bill repeals s.327.803, F.S. This elimi- for identified deficiencies. The monitoring nates the Boating Advisory Council. report is to be submitted to the ARC and the managing agency. The ARC is to review the Subject to the Governor’s veto powers, the monitoring report and determine whether the effective date of this bill is October 1, 2008. deficiencies warrant a corrective action plan or revisions to the land management plan. HB 7019 Significant and recurring deficiencies are Real Property to be brought to the BOT, which must de- The bill eliminates the filing requirement of termine whether the corrective actions be- Form DR-219 relating to the transfer of an ing proposed by the land manager and the interest in real property to the clerk of the ARC sufficiently address the deficiencies. circuit court. The bill repeals s. 372.107, F.S., which Because the form is no longer required to be created the now obsolete FWC Federal Law filed, the bill eliminates the clerk’s authoriza- Enforcement Trust Fund. This trust fund was tion to deduct 1.0 percent of the tax paid on terminated in 2005 (Chapter 2005-17, deeds as compensation for the cost of proc- L.O.F). Statutory references to this section are essing the return. also removed. In March 2008, the revenue estimating con- The bill transfers, by a type 2 transfer, the Bu- ference determined that eliminating Form DR- reau of Invasive Plant Management currently 219 would increase state revenues during within the DEP to the FWC with the exception Fiscal Year 2008-2009 by approximately of the permitting program component related $8.8 million. In addition, the change will re- to business activities involving the importation, sult in a $35,000 cost savings based on re- transportation, non-nursery cultivation, collec- ductions in printing, postage, and storage of tion, sale, or possession of aquatic plant spe- the form. cies which is transferred to the Department of Agriculture and Consumer Services. The effective date of this bill is June 1, 2008.

2008 Florida Legislature Post-Session Report

CONSTRUCTION & ENERGY LAW

CARLTON FIELDS, P.A.

CONSTRUCTION & ENERGY LAW

CS/HB 697 o Repeals s. 553.731, Florida Stat- Building Standards utes, relating to a specified stan- CS/HB 697 addresses a wide range of build- dard for wind resistant construction ing construction issues including Florida Build- to be enforced by building officials. ing Code standards, the Florida Building The repeal does not affect ss. Commission, and energy efficiency standards 553.73(6)-(8), Florida Statutes, which relating to planning and construction. permanently prohibited the commission from adopting amendments to Florida Building Code and Building the code that diminish the standards Standards pertaining to wind resistance and The bill makes numerous changes to the Flor- water intrusion. ida Building Code, building standards and related regulations. Major changes include: Florida Building Commission

o Allows licensed roofing contractors to The bill makes several changes to the structure perform additional functions of re- and process of the Florida Building Commis- placing and removing wood roof sion including: sheathing and fascia during re- Revises the membership of the Florida roofing work. o Building Commission to 25 members, o Clarifies the definition of “manufac- adding a representative from the tured building” to include the terms swimming pool industry and a repre- “modular” and “factory built” build- sentative from the green building in- ings which are terms used to describe dustry; and specifically authorizes homes built in a factory in the Florida various professional associations to Building Code. recommend candidates for membership. o Clarifies that “temporary” buildings are buildings other than those designated o Imposes a four year term limit on the permanent in the approved develop- chair, which is consistent with the limi- ment order. tations on all other commission appointments. o Provides language to ensure the preservation of flexibility to achieve a o Allows the commission to render de- secondary water barrier by allowing claratory statements; changes the more than a single accepted method. meeting procedures of the commission to allow for teleconferencing; and re- o Repeals s. 627.351(6)(a), Florida quires at least one opportunity for pub- Statutes, relating to the date on which lic comment on proposed action of code-plus applies as a condition of the commission before a final vote is coverage by Citizens Insurance. taken.

91 2008 LEGISLATIVE REPORT

o Clarifies the jurisdictional responsi- power generation and transmission bilities of the Department of Commu- systems, as well as greenhouse gas nity Affairs (DCA) and the Florida reduction strategies. Building Commission. Historically, DCA has operated the program to o The traffic circulation element must approve plans for construction of address strategies to reduce green- buildings and building components house gases. assembled off-site. Since 1998, the o The conservation element must ad- authority for the program has been dress factors that affect energy con- divided between the Florida Building servation. Commission, which establishes the plan review, the inspection require- o The housing element must contain ments and the technical standards for standards and principals for energy the building, and DCA, which has efficiency in new houses. maintained the business practices of the program, such as procurement, o Allows the Florida Building Commis- form development and processing sion to select the most current version requests for approval. The bill more of the International Energy Conserva- clearly delineates the responsibilities tion Code as a foundation code. of each body. o Creates s. 553.9061, Florida Stat- Energy Planning and Conservation Practices utes, to establish the following schedule of required increases in the en- The bill implements certain recommendations ergy efficiency performance of build- of the Florida Energy Commission contained in ings subject to the Florida Energy Ef- its “2007 Report to the Legislature” ficiency Code. These increases are relative to the 2004 Florida Building The bill revises requirements relating to the in- Code, as amended on May 22, stallation of energy devices based on renew- 2007. able resources on buildings. o By 2010, efficiency increases of at The bill requires that the Florida Building Code least 20 percent. By 2013, efficiency must facilitate and promote the use of cost- increases of at least 30 percent. By effective energy conserving, energy demand- 2016, efficiency increases of at least management, and renewable energy tech- 40 percent. By 2019, efficiency in- nologies in buildings. creases of at least 50 percent. The bill integrates energy efficiency issues into o Adds declarations to the list of deed several components of the local government restrictions, covenants, or other bind- comprehensive plan, which will be due at the ing agreements which may not pro- next evaluation and appraisal update of each hibit the installation of energy de- local government’s comprehensive plan: vices based on renewable re- o The future land use element must ad- sources. The bill specifies that con- dress reduction in urban sprawl and dominium units are residential dwell- energy efficient land use patterns in re- ings for purposes of installation of so- lation to existing and future electric lar collectors or other energy devices,

92 CARLTON FIELDS, P.A.

and removes the three-story height re- is often hidden and may be on fire for long striction for installation of solar collec- periods of time before being noticed. tors or other energy devices on such residential dwellings. The “Aldridge/Benge Firefighter Safety Act” requires the owner of any commercial or indus- o Directs the DCA, in consultation with trial structure or multiunit residential structure, the Florida Energy Affordability Coali- with three units or more, that is built of light- tion, to identify and review issues re- frame truss-type construction to mark the struc- lating to improving the effectiveness ture with a sign or symbol to alert fire and of the Low-Income Home Energy As- emergency personnel of this type of con- sistance Program and the Weatheri- struction. An owner’s failure to provide zation Assistance Program. such notice is subject to penalties. The State Fire Marshal shall adopt rules to determine Other Provisions the details of such sign or symbol and other matters necessary to implement the bill. Ad- To be eligible for state affordable housing ditionally, the State Fire Marshal and local funds, certain counties must annually certify fire officials shall enforce the provisions. they have adopted an affordable workforce housing plan. Additionally, the bill requires licensed nursing homes that desire to participate in the Nurs- Prohibits any county, municipality, or special ing Home Fire Protection Loan Guarantee Pro- district from owning or operating an asphalt gram to submit completed fire sprinkler con- plant or a portable or stationary concrete struction documents to the Agency for Health batch plant having an independent mixer; Care Administration for review by December grandfathers in counties with plants prior to 31, 2008, and gain final approval to begin April 15, 2008. construction by June 30, 2009, with excep- Subject to the Governor’s veto powers, the tions that may extend the deadline to Decem- effective date of this bill is July 1, 2008. ber 31, 2009.

The bill also requires the State Fire Marshall CS/HB 727 to conduct a study of the use of managed, Firesafety facilities-based, voice-over-Internet-protocol Truss type construction is popular, versatile, telephone service for monitoring fire alarm and cost effective in the erection of commer- signals. The study is to be completed by De- cial, industrial and residential structures. cember 1, 2008. These factors make the truss type systems Subject to the Governor’s veto powers, the increasingly popular. A truss system can effective date of this bill is July 1, 2008. be comprised of boards, timbers, beams, or steel bars, all of which are joined together in a rigid framework. However, the CS/SB 794 firefighting community has concern because Underground Utilities/Excavations certain roof and floor truss systems can col- and Demolitions lapse without warning during a firefighting This bill amends the “Underground Facility operation, due to the fact that the truss system Damage Prevention and Safety Act” in ch. 556, F.S., to expressly prohibit an operator of

93 2008 LEGISLATIVE REPORT underground facilities from charging an exca- lature, also issued a series of recommenda- vator any costs or expenses associated with tions addressing energy affordability, secu- the operator’s compliance with the Act. It also rity, efficiency, reliability and global climate expressly prohibits an excavator from charg- change. ing an operator of underground facilities any costs or expenses associated with the In response to these developments, the House excavator’s compliance with the Act. Fi- Environment & Natural Resources Council nally, it provides that the prohibition held a symposium on the “Science and Eco- against charging fees does not excuse a nomics of Climate Change” and a series of member operator or excavator from liability workshops to discuss the interrelated issues for damage or injury for which it would be of energy affordability, security, efficiency, responsible under applicable law. reliability and global climate change. These discussions focused on international, national Subject to the Governor’s veto powers, the and state options to mitigate climate change effective date of this bill is upon becoming and their potential costs and benefits. law. This bill builds on last year’s legislation and includes policies relating to energy afforda- HB 7135 bility, security, efficiency, and reliability and Energy also provides a responsible response to con- During the 2007 Legislative Session, the Leg- cerns with global climate change and antici- islature enacted comprehensive legislation to pated federal legislation. The bill provides promote energy security and affordability for a new governance structure to enable the by encouraging energy efficiency and di- state to establish and implement a compre- versity. Although this legislation was vetoed, hensive strategy to address these interrelated approximately $62 million in funds were and rapidly evolving issues, and includes the made available to address energy goals. In following provisions: the summer of 2007, Governor Crist issued Hearing on Order of Taking Property by three executive orders addressing issues Electric Utilities (s. 74.051, F.S.) related to global climate change. The execu- Provides that it is the intent of the Legislature tive orders: established reduction targets for that the court, when practicable, conduct the greenhouse gas (GHG) emissions; directed hearing within 120 days after the petition is the Department of Environmental Protection filed when the petitioner is an electric utility (DEP) to implement through agency rules a that is seeking to appropriate property for an regulatory cap on electric utility GHG emis- electric generation plant, associated facility sions and, through adoption of California’s of such plant, an electric substation, or a proposed standards, GHG emission limits on power line; provides additional legislative new motor vehicles; requested the Public Ser- intent that the court, when practicable, issue vice Commission (PSC) to implement net me- its order of taking no more than 30 days af- tering and a renewable portfolio standard ter the conclusion of the hearing. (RPS) for electric utilities; and created the Governor’s Action Team on Energy and Cli- mate Change to develop additional energy and climate change policies. The Florida En- ergy Commission, created by the 2006 Legis-

94 CARLTON FIELDS, P.A.

Telecommuting (ss. 110.171 and 255.249, owners to once again apply for the F.S.) exemption, effective January 1, 2009. o Encourages the use of telecommuting by state agencies for qualified em- o Retains the period of each exemp- ployees by requiring each state tion at 10 years. agency’s telecommuting program be posted on the state agency’s website o Revises the options for calculating to allow access by employees and the amount of the exemption for the public. properties with renewable energy source devices by limiting the exemp- o Requires each state agency telecom- tion to the amount of the original cost muting program to provide measur- of the device, including the installa- able financial benefits associated with tion cost, but not including the cost the program. of replacing previously existing property. Renewable Energy Devices within a Condo- minium Unit (s. 163.04, F.S.) o Removes outdated and obsolete language from the definition of Provides that condominium governing docu- “renewable energy source de- ments cannot prohibit unit owners from plac- vice,” provided in s. ing renewable energy devices within the 196.012(14), F.S. boundaries of the condominium unit, and removes the three-story height restriction for in- Sales Tax Exemption for Renewable Energy stallation of solar collectors on residential Technologies (s. 212.08, F.S.) properties. o Makes revisions to the existing sales State Comprehensive Plan/Energy and Cli- and use tax exemption for renew- mate Change (s. 186.007 and 187.201, F.S.) able energy technologies. Amends provisions relating to air quality, energy, and land use goals and policies of o Revises the definition of “ethanol” to the State Comprehensive Plan. Includes en- mean anhydrous denatured alcohol couragement of the development of low car- produced by the “conversion of carbon emitting electric power plants, and in- bohydrates” rather than by the “fer- cludes under the land use goal, the siting of mentation of plant sugars.” nuclear power plants to meet the state’s de- o Specifies that items eligible for the termined need for electric power generation. sales tax exemption are limited to one Property Tax Exemption for Renewable En- refund and requires a purchaser who ergy Source Devices (ss. 196.012(14) and receives a refund to notify a subse- 196.175, F.S.) quent purchaser on the sales invoice or other proof of purchase that the o Removes the expiration date of the item is no longer eligible for a tax re- property tax exemption for real prop- fund. erty on which a renewable energy source device is installed and is being o Transfers current responsibilities of operated, thereby allowing property the Department of Environmental

95 2008 LEGISLATIVE REPORT

Protection (DEP) to the Florida Renewable Energy Production Tax Credits (s. Energy and Climate Commission. 220.193, F.S.)

Capital Investment Tax Credit (s. 220.191, o Makes revisions to the existing corpo- F.S.) rate renewable energy production tax credit provision to include elec- o Makes revisions to the existing capi- tricity “sold” as well as electricity tal investment tax credit section to “used” by the producer when the pro- provide for the transferability of tax ducer would have otherwise been re- credits for a project that includes lo- quired to purchase the electricity. cating a new solar panel manufacturing facility in the state that generates o Clarifies that corporations that own a minimum of 400 jobs within 6 an interest in a partnership can months with an average salary of at claim the tax credits earned by those least $50,000. partnerships for generating renewable energy. o Limits credit that can be transferred to the lesser of the qualifying busi- o Allows taxpayers using the alternative ness’ tax liability for that year or minimum tax process to also utilize the the credit amount granted for that credit. year. o Provides for retroactivity of the Renewable Energy Technologies Investment amendments to the section (to the ef- Tax Credit (s. 220.192, F.S.) fective date of the law establishing the credit) so that entities that have o Makes revisions to the existing cor- been prohibited from taking advan- porate income tax credit provision tage of the production tax credits, due for investment costs associated to a lack of clarification, may now with hydrogen vehicles and hydrogen claim such credit. vehicle fueling stations, commercial stationary fuel cells, and biofuels, in- Construction of Electric Transmission Lines on cluding biodiesel and ethanol. State Uplands (s. 253.02, F.S.)

o Provides for the transferability of tax o Authorizes the Board of Trustees of credits and authorizes existing tax the Internal Improvement Trust Fund credits to be passed through to under- (board) to delegate its authority to lying partners, members, or owners grant easements across state lands for by written agreement. the construction of electric transmission lines to the DEP. o Transfers current responsibilities of the Department of Environmental Protec- o Requires the electric utility to com- tion (DEP) to the Florida Energy and pensate the state in an amount equal Climate Commission. to the market value of the interest acquired and vest in the board fee simple title to replacement lands that must be 1.5 times the size of the

easement acquired when the DEP ap-

96 CARLTON FIELDS, P.A.

proves such easements for electric suitable for energy conservation pro- transmission lines on behalf of the jects by July 1, 2009. The schedule is board. to provide a deadline for guaranteed energy performance savings contract o Grants the board the discretion to de- improvements to be made. termine the amount of replacement lands within a range of 1 to 2 times Green Government Buildings (Section 22) the size of the easement granted where the board approves the grant o Requires all county, municipal, school of an easement for electric transmis- district, water management district, sion lines across state lands. state university, community college, and court buildings be constructed to Green State Buildings (ss. 255.251- meet the LEED rating system, Green 255.257, F.S.) Globes rating system, Florida Green Building Coalition standards, or other o Provides all state agency facilities nationally recognized building rating constructed and renovated by the system. state comply with the Leadership in Energy and Environmental Design o Provides applicability of section to (LEED) rating system, the Green Build- buildings whose architectural plans ing Initiative’s Green Globes rating are started after July 1, 2008. system, the Florida Green Building Coalition standards, or a nationally o Authorizes St. Petersburg College to recognized, high performance green provide training and educational op- building rating system as approved portunities that will ensure that green by the Department of Management building rating system certifying Services (DMS). agents are available to work with entities as they construct public o Provides requirements for state build- buildings to meet green building rat- ings relating to energy management ing system standards. and addresses life-cycle costs in public facilities. Climate-friendly Public Business (s. 286.29, F.S.) o Requires each state agency occupying space within buildings owned or o Creates the Florida Climate Friendly managed by the DMS to compile a Preferred Products List to be used by list of state-owned buildings (that are state agencies for purchasing deci- over 5,000 square feet in area and sions. for which the agency is responsible o Requires state entities to contract with for paying utility and operating ex- facilities for meeting and conference penses as they relate to energy use) space from hotels or conference facili- suitable for a guaranteed energy per- ties granted the “Green Lodging” formance saving contracts. designation. o Requires the DMS to consult with o Requires each state agency to en- state agencies and create a sched- sure that all maintained vehicles ule to prioritize state-owned buildings

97 2008 LEGISLATIVE REPORT

meet certain minimum maintenance DMS/DOT Biofuel Analysis (s. 287.16, F.S.) schedules. o Directs the Department of Manage- o Requires that, when procuring a new ment Services (DMS) to conduct, in vehicle, all state agencies, state uni- coordination with the Department of versities, community colleges, and lo- Transportation (DOT), an analysis of cal governments procure vehicles fuel additive and biofuel use by the with the greatest fuel efficiency avail- DOT through its central fueling facili- able for a given use class when fuel- ties. economy data are available. o Directs the DMS to encourage other o Requires all state agencies to use state government entities to analyze ethanol and biodieselblended fuels transportation fuel usage and report when available. such information to the DMS.

Deferred Payment Commodity Contracts (s. Innovation Incentive Program (s. 288.1089, 287.063, F.S.) F.S.)

o Deletes a subparagraph limiting o Authorizes the Office of Tourism, agencies’ authority to obligate an an- Trade, and Economic Development nualized amount of payments in excess to provide incentive awards to al- of current operating capital outlay ternative and renewable energy appropriations. projects.

o Adds a provision that the payment o Establishes criteria for these projects, term may not exceed the useful life authorizes Enterprise Florida, Inc., to of the equipment unless the contract evaluate proposals for the awards, provides for the replacement or ex- and requires Enterprise Florida, Inc., tension of the useful life of the to solicit comments and recommenda- equipment during the term of the tions from the Florida Energy and loan. Climate Commission for alternative and renewable energy project pro- o Provides that the annualized amount posals. of a deferred-payment contract must be supported from available recurring High Occupancy Vehicles (HOV) Lanes (s. funds. 316.0741, F.S.)

Consolidated Financing of Deferred- o Authorizes the use of HOV lanes by Payment Purchases (s. 287.064, F.S.) specified hybrid, low-emission, and energy-efficient vehicles. Provides that a master equipment financing agreement may finance the cost of energy, o Authorizes certain vehicles having de- water, or wastewater efficiency and conserva- cals to use any HOV lane redesig- tion measures for a term of repayment that nated as high-occupancy toll lanes may exceed 5 years but not more than 20 without payment of a toll. years.

98 CARLTON FIELDS, P.A.

Placement of Electric Transmission Lines on Public Service Commission (PSC) Nominating Department of Transportation (DOT) Con- Process (ss. 350.01, 350.012, 350.03, trolled Rights -of-Way (s. 337.401, F.S.) 350.031, 350.061, and 350.0614, F.S.)

o Provides that for transmission lines that o Provides that a Public Service operate more than 69 kilovolts, and Commissioner seeking reappoint- where there is no practical alternative ment to the commission apprise the available, DOT rules must provide for PSC Nominating Council (Nominating placement of, and access to, trans- Council) no later than June 1 prior to mission lines within the right-of-way of the year in which their term expires any department-controlled public and changes the beginning of the roads, including longitudinally within chair’s term to January 2 of the first limited access facilities to the greatest year of the term to coincide with the extent allowed by federal law, pro- terms of the commissioners. vided that compliance with minimum clear zone and other safety standards o Provides that “the Governor shall have established by rules or regulations is the same power to remove, suspend, achieved. or appoint to fill vacancies in the office of commissioners as in other of- o Provides that when the DOT notifies fices,” as set forth in Art. IV, s. 7, of an electric utility that the property the State Constitution. where the transmission lines have been co-located is to be expanded, o Renames the Committee on PSC the electric utility will relocate their Oversight as the Committee on Pub- transmission lines at the utility’s ex- lic Counsel Oversight and removes pense. the Oversight Committee’s authority and responsibility to recom- Metropolitan Planning Organizations (s. mend applicants to the Governor 339.175, F.S.) for appointment to the PSC, but retains the committee’s authority for o Adds “greenhouse gas emissions” to oversight of the Public Counsel and the list of the negative impacts of authority to file complaints with the transportation systems that the Leg- Commission on Ethics for alleged vio- islature wishes to minimize while lations of the chapter by commission- promoting the management, op- ers, former commissioners, former eration, and development of these commission employees, or members transportation systems. of the PSC Nominating Council.

o Provides that each Metropolitan o Reverts commissioner selection proc- Planning Organization is encouraged ess to the pre-2005 process, whereby to consider strategies that integrate the Nominating Council screens ap- transportation and land use planning plicants and makes recommendations to provide for sustainable develop- to the Governor. ment and reduce greenhouse gas emissions. o Clarifies that the Governor has 30 “consecutive” calendar days to make

99 2008 LEGISLATIVE REPORT

an appointment after receipt of the the Nominating Council, and pro- Nominating Council’s recommenda- vides for staggered terms. tions. o Establishes the beginning date for o Provides that, after an appointment is nonlegislator Nominating Council made to fill a vacancy occurring due member terms as January 2 after ini- to expiration of the term, a successor tial terms under the act expire. Governor may, within 30 days after taking office, recall the appointment Jurisdiction of the Public Service Commission under specified circumstances. (PSC) over Municipal Electric Utilities (s. 366.04, F.S.) o Increases the membership of the Nominating Council from nine to Requires each municipality that operates an twelve to consist of six members ap- electric utility that serves two cities in the pointed by the Speaker of the House same county, is located in a non charter of Representatives, including three county, has between 30,000 and 35,000 representatives; and six members ap- retail electric customers as of September 30, pointed by the President of the Senate, 2007, and does not have a service territory including three senators. that extends beyond its home county as of September 30, 2007, to conduct a refer- o Requires that one legislative mem- endum election of all its retail electric cus- ber from each chamber must be tomers to determine whether a separate elec- from the minority party. tric utility authority should be created to operate the business of the electric utility in the o Provides that the President of the affected municipal utility. If a majority of the Senate appoint the chair in even- retail electric customers vote in favor of cre- numbered years and the vice chair in ating the authority, the municipal electric odd-numbered years, and the Speaker utility must provide each Legislative member of the House of Representatives ap- whose district includes any part of the utility’s point the chair in odd-numbered service territory a proposed charter that trans- years and the vice chair in even- fers the utility’s operations to a duly-created numbered years. authority.

o Provides that the Nominating Coun- Energy Efficiency and Conservation (ss. cil send to the Governor “not fewer 366.81 and 366.82, F.S.) than three persons” per vacancy. Revises the Florida Energy Efficiency and o Changes the deadline for the Conservation Act (FEECA), to explicitly Nominating Council to recommend allow efficiency and conservation invest- applicants to the Governor to Sep- ments across generation, transmission, and tember 15 to shorten the overall distribution as well as efficiencies within the length of time for the selection proc- user base; to encourage the development of ess. demand-side renewable energy; and to provide criteria the Public Service Commission o Terminates the current Nominating (PSC) is to consider when evaluating pro- Council members’ terms on June 30, posed conservation and efficiency measures. 2008. Provides for reappointment of

100 CARLTON FIELDS, P.A.

The criteria the PSC is required to consider goals, including but not limited to the shar- include the following: ing of generation, transmission, and distribution cost savings associated with conserva- o The costs and benefits to customers tion, energy efficiency, and demand-side re- participating in the measure (Partici- newable energy system additions. In addition, pants test). the bill authorizes the PSC to allow an investor owned electric utility an additional return o The costs and benefits to the general on equity of up to 50 basis points for ex- body of ratepayers as a whole, in- ceeding 20 percent of their annual load cluding both utility incentives and par- growth through energy efficiency and con- ticipant contributions (similar to a Total servation measures. The additional return on Resource Cost test or TRC test but in- equity is to be established by the PSC cluding the costs of incentives). through a limited proceeding. o The need for incentives to promote Environmental Cost Recovery (s. 366.8255, both customer-owned and utility-owned F.S.) energy efficiency and renewable energy systems. Revises the definition of “environmental compliance costs” to include the costs or expenses o The costs imposed by state and fed- prudently incurred for the quantification, re- eral regulations on the emissions of porting, and third party verification as required greenhouse gases. for participation in greenhouse gas emission The bill further provides budget authority for registries for greenhouse gases as defined in the PSC to expend up to $250,000 from the s. 403.44, F.S.; and costs or expenses pru- Florida Public Service Regulatory Trust Fund to dently incurred for scientific research and obtain technical consulting assistance. The geological assessments of carbon capture newly-created Florida Energy and Climate and storage conducted in Florida for the Commission must be included in the proceed- purpose of reducing an electric utility’s ings to adopt goals and must file with the greenhouse gas emissions when such costs or PSC comments on the proposed goals. expenses are incurred in joint research projects with State of Florida government agen- The PSC may require modifications or addi- cies and State of Florida universities. tions to a utility’s plans and programs when there is a public interest consistent with Net Metering (s. 366.91, F.S.) conservation, energy efficiency, and de- Expands the term “biomass” to include mand-side renewable energy system meas- o waste, byproducts or products from ures. The bill grants the PSC flexibility to agricultural and orchard crops, waste modify or deny plans and programs that or co-products from livestock and would have an undue impact on the costs poultry operations, and waste or by- passed on to ratepayers. products from food processing. The bill also grants the PSC authority, for Requires investor-owned utilities to de- those utilities over which it has rate-setting o velop a standardized interconnection authority, to provide financial rewards for agreement and net metering program utilities which exceed their goals and financial for customer-owned renewable gen- penalties for utilities which fail to meet their

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eration on or before January 1, direct supply, procurement of renew- 2009, and directs municipal elec- able power, or through the purchase tric utilities and rural electric coop- of RECs. eratives that sell electricity at retail to develop a standardized interconnec- o Appropriate compliance measures tion agreement and net metering and the conditions under which non- program for customer-owned renew- compliance can be excused due to a able generation, as well. determination by the commission that the supply of renewable energy or o Directs each governing authority to RECs was not adequate to satisfy the establish requirements relating to demand for such energy, or that the such. cost of securing renewable energy or RECs was cost prohibitive. o Requires that if a utility is purchasing power generated from biogas pro- o An appropriate period of time for duced by the anaerobic digestion of which renewable energy credits may agricultural waste, including food be used for purposes of compliance waste and other agricultural byprod- with the RPS. ucts, that net metering be available at a single metering point or be avail- o The monitoring of compliance with and able as a part of conjunctive billing of enforcement of the requirements of this multiple points for a customer at a section. single location on the condition that o A means of ensuring that energy the provision of such service is not credited toward compliance with the projected to result in higher costs of provisions of the RPS not be credited electric services to the general body of toward any other purpose. ratepayers or adversely affect the adequacy or reliability of electric ser- o Development of procedures to track vice to all customers. and account for RECs, including ownership of RECs that are derived from a Renewable Portfolio Standard (s. 366.92, customer-owned renewable energy F.S.) facility as a result of any action by a Directs the Public service Commission (PSC) to customer of an electric power supplier adopt a rule for a renewable portfolio stan- that is independent of a program dard (RPS) requiring each provider, which in- sponsored by that supplier. cludes an investor-owned utility, but not a o Conditions and options for the repeal municipal electric utility or a rural electric or alteration of the rule in the event that cooperative, to supply renewable energy to new provisions of Federal law sup- its customers, either directly, by procuring, or plant or conflict with the rule. indirectly providing through the purchase of Renewable Energy Credits (RECs). Requires o Provides that the rule may give added the rule to provide for the following: weight to energy provided by wind and solar photovoltaic over other Methods of managing the cost of com- o forms of renewable energy. pliance with the RPS whether through

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o Requires the PSC to present the draft agement, and expansion of the use of rule for legislative consideration by renewable energy resources and en- February 1, 2009, and prohibits the ergy conservation and efficiency rule from being implemented until rati- measures. fied by the Legislature. Alternative Cost Recovery Mechanisms for o Provides rulemaking authority to the Nuclear Power Plants (s. 366.93, F.S.) PSC for providing annual cost recovery and incentive-based adjustments Specifies that the advanced cost recovery to authorized rates of return on requirement consists of the costs incurred in common equity to providers to in- the siting, design, licensing, construction, or centivize renewable energy. operation of new, expanded, or relocated electric transmission lines and facilities that o Authorizes the PSC to approve pro- are necessary to serve a nuclear power jects and power sales agreements plant. Furthermore, the bill allows utilities to with renewable power producers, recover preconstruction and construction and the sale of renewable energy costs associated with such electrical trans- credits which are needed to comply mission lines and facilities incurred after with the RPS. the issuance of a final order granting a determination of need for a nuclear power o Provides that if there is a conflict be- plant, rather than at the time that the nuclear tween this provision and s. 366.91(3) power plant commences operation. In the and (4), F.S., the RPS section will su- event that the utility elects not to complete or persede s. 366.91(3) and (4), F.S., in is precluded from completing construction of terms of paying more than avoided any new, expanded, or relocated electrical costs. transmission lines or facilities of a nuclear power plant, the utility may recover all pru- o Provides that nothing in the section dent costs incurred after the issuance of the shall impede or impair terms and final order granting the determination of conditions in existing contracts. need for the nuclear power plant. This is in- o Directs the PSC to provide for full cost tended to lower capital costs by reducing recovery under the environmental financial risk and allowing utilities to begin cost-recovery clause of all reasonable recovering costs prior to operation, and and prudent costs incurred by a pro- therefore shortening the required financing vider for renewable energy projects period. that are zero greenhouse gas emitting Florida Energy and Climate Commission (ss. at the point of generation, up to a to- 377.601 - 377.806 and 377.901, F.S.) tal of 110 MW statewide. Provides for a transfer of the Florida Energy o Provides conditions and a July 1, Commission from the Office of Legislative 2009, deadline for filing for such cost Services (and authorizes 4 FTEs) and the recovery. State Energy Program from the Department o Directs municipal electric utilities and of Environmental Protection (DEP) to the Flor- rural electric cooperatives to develop ida Energy and Climate Commission (com- standards for the promotion, encour- mission) in the Executive Office of the Gov-

103 2008 LEGISLATIVE REPORT ernor and repeals the Florida Energy Com- potential, tidal movements, geother- mission. The bill provides for the following: mal sources, biomass, and other energy sources the commission deter- o The FECC is to be comprised of nine mines to be important to the produc- (9) members, seven (7) of which are tion or supply of energy.” appointed by the Governor, for 3- year terms. The other two positions o Expands the requirement of the De- are to be appointed, one each, by partment of Management Services to the Commissioner of Agriculture furnish data on agencies’ energy con- (Commissioner), and the Chief Fi- sumption to include their emissions of nancial Officer (CFO). Provides for greenhouse gases. staggered terms. o Renames the “Florida Renewable En- o The Governor is to select from three ergy Technologies and Energy Effi- people nominated by the Florida Pub- ciency Act,” as the “Florida Energy lic Service Commission Nominating and Climate Protection Act.” Renames Council (Nominating Council) for the “Renewable Energy Technologies each seat on the commission. In addi- Grants Program,” as the “Renewable tion, the Commissioner and the CFO Energy and Energy-Efficient Tech- are each to select from three people nologies Grants Program,” and adds nominated by the Nominating Coun- “innovative technologies that signifi- cil. cantly increase energy efficiency for vehicles and commercial buildings” to o The Nominating Council is to submit the list of projects for which the pro- the nominations by September 1 of gram will provide renewable energy those years in which the terms are to matching grants. begin the following October, or within 60 days after a vacancy occurs for Florida Green Government Grants Act (s. any reason other than the expiration 377.808, F.S.) of the term. o Creates the “Florida Green Gov- o The Governor, the Commissioner, and ernment Grants Act,” to provide the CFO may proffer names to be that the newly-created Florida En- considered by the Nominating Coun- ergy and Climate Commission cil. (FECC) award grants to assist local governments, including municipalities, o The Governor is to select a chair from counties, and school districts, to de- one of the nine people appointed to velop programs that achieve green the FECC. If the Governor, Commis- standards. sioner, or the CFO does not make an appointment within 30 days of receiv- o Authorizes the FECC to provide nec- ing the Nominating Council’s recom- essary administrative expenses to mendations or if the Senate fails to. local governments from the grants. Requires “green standards” to be de- o Clarifies that the definition of “energy termined by the FECC to provide cost- resources” includes “energy converted efficient solutions that reduce green- from solar radiation, wind, hydraulic

104 CARLTON FIELDS, P.A.

house gas emissions, improve the ess currently in the Transmission Line quality of life, and strengthen Flor- Siting Act, and allows electric utilities ida’s economy. constructing a nuclear power plant to obtain certain preconstruction site sup- Florida Climate Protection Act (Cap and Trade port permits before obtaining the certi- Regulatory Program) (s. 403.44, F.S) fication.

o Authorizes Department of Environ- Recycling (s. 403.7032, F.S.) mental Protection (DEP) to adopt rules for a cap-and-trade regulatory pro- o Requires a long term goal by state and gram to reduce greenhouse gas emis- local governments, private companies sions by electric utilities. and organizations, and the general public to reduce the amount of recy- o Provides for methodologies, reporting clable solid waste disposed of in periods, and reporting systems that waste management facilities, land- must be used when electric utilities fills, or incinerator facilities by a report to the Climate Registry. Re- statewide average of at least 75 quires the DEP to consult with the percent. Florida Energy and Climate Com- mission and the Public Service o Directs the Department of Environ- Commission (PSC) when developing mental Protection (DEP) to develop a the rules. recycling program designed to achieve the 75 percent reduction and o Requires the Florida Energy and submit the program to the Legislature Climate Commission (FECC) to review by January 1, 2010. the draft rule and report to the Legis- lature on the design, cost, and eco- Analysis of Disposable Plastic Bags by DEP nomic impact factors. (s. 403.7033, F.S.)

o Provides that the rule may not become o Authorizes the DEP to undertake an effective until ratified by the Legisla- analysis of the need for regulation of ture and not until after January 1, auxiliary containers, wrappings or 2010. disposable plastic bags.

Electrical Power Plant and Transmission Line o Requires Department of Environmental Siting Act (ss. 403.502 - 403.5365, F.S.) Protection (DEP) to report their findings to the Legislature no later than Febru- o Revises various provisions of the Power ary 1, 2010, and prohibits local or Plant Siting and Transmission Line Sit- state government entities from enact- ing Acts to create greater efficiency in ing any regulation of such auxiliary the siting process and facilitate the containers, wrappings, or disposable need for expanded power genera- plastic bags until the Legislature has tion. acted on the DEP’s recommendations.

o Creates an alternate corridor proposal process within the Power Plant Siting Act that mirrors the same proc-

105 2008 LEGISLATIVE REPORT

Methane Capture (s. 403.7055, F.S) Florida Renewable Fuel Standard Act (ss. 526.06, ss. 526.201 - 526.207 and o Encourages counties to form multi- 206.43(2)(b), F.S.) county regional solutions to capture methane gas from landfills and o Establishes the Florida Renewable wastewater treatment facilities. Fuel Standard Act (act). Provides that beginning on December 31, o Requires the Department of Environ- 2010, all gasoline sold or offered mental Protection (DEP) to provide for sale in Florida by a terminal planning guidelines and technical as- supplier, importer, blender, or sistance to each county to develop wholesaler shall be blended gaso- these multicounty efforts. line.

Composting (s. 403.706, F.S.) o Defines blended gasoline as a “mix- ture of 90 to 91 percent gasoline and o Requires each county by July 1, 9 to 10 percent fuel ethanol, by vol- 2010, to develop and implement a ume.” The ethanol portion may be de- plan to achieve a goal of up to 10 rived from any agricultural source. percent and no less than 5 percent of organic material to be composted Exempts the following from the standard: within the boundaries of a county or municipality. Fuel used in aircraft.

o Authorizes the Department of Environ- Fuel sold for use in boats and mental Protection (DEP) to provide ex- similar watercraft. emptions for the plan if the county demonstrates that the achievement of Fuel sold to a blender. the goal is impractical given the Fuel sold for use in collector vehi- county’s unique demographic, urban cles or vehicles eligible to be li- density, or inability to separate nor- censed as collector vehicles, off- mally compostable material from the road vehicles, motorcycles, or solid waste stream. small engines. Encourages each county to consider o Fuel unable to comply due to re- plans for mulching organic materials quirements of the United States En- otherwise disposed of in a landfill. vironmental Protection Agency. Guaranteed Energy Performance Savings Fuel transferred between termi- Contracts (s. 489.145, F.S.) nals. Authorizes all state agencies to use the guar- Fuel exported from the state in anteed energy, water, and wastewater per- accordance with s. 206.052, formance savings contracting program to util- F.S. ize savings from energy, water, and wastewater conservation and efficiency measures Fuel qualifying for any exemption to finance such measures. in accordance with chapter 206, F.S.

106 CARLTON FIELDS, P.A.

Fuel for a railroad locomotive. gency, which are addressed in s. 252.36(2), F.S. Fuel for equipment, including vehicle or vessel, covered by a war- o Provides for penalties for violations of ranty that would be voided, if ex- the act. plicitly stated in writing by the vehicle or vessel manufacturer, if it o Directs the Florida Energy and Cli- were to be operated using fuel mate Commission to conduct a study meeting the requirements of the to evaluate and recommend the life- act. cycle greenhouse gas emissions associated with all renewable fuels includ- o Requires that all records of sale of un- ing, but not limited to, biodiesel, re- blended gasoline include the follow- newable diesel, biobutanol, and ing statement: “Unblended gasoline ethanol derived from any source and may be sold only for the purposes au- evaluate and recommend a require- thorized under s. 526.203(3), F.S.” ment that all renewable fuels introduced into commerce in the state, as o Requires each terminal supplier, im- a result of the Renewable Fuel Stan- porter, blender, and wholesaler to dard, reduce the lifecycle greenhouse provide to the Department of Reve- gas emissions by an average per- nue (DOR) the number of gallons of centage. blended and unblended gasoline sold and directs the DOR to provide a o Provides that the study may also monthly summary report of these to- evaluate and recommend any benefits tals to the Department of Agriculture associated with the creation, banking, and Consumer Services (DACS). transfer, and sale of credits.

o Provides for a waiver of the stan- o Directs that the study be submitted to dard in situations where a terminal the President of the Senate and the supplier, importer, blender, or whole- Speaker of the House of Representa- saler is unable to obtain fuel ethanol tives no later than December 31, or blended gasoline at the same or 2010. lower price as unblended gasoline. o Provides for fuel volatility standards for o Provides that if a supplier, importer, gasoline and gasoline blended with blender, or wholesaler has made a ethanol and provides for a transition good faith effort to comply with the period for retail service stations transi- requirements but has been unable to tioning from unblended gasoline to do so for reasons beyond the appli- the new standard. cant’s control, such as delays in receiving governmental permits, he or o Florida Building Code (s. 553.73, she can apply to the DACS for an F.S.) extension of time to comply with the o Directs the Florida Building Commis- requirements. sion to select the most recent Inter- o Provides for suspensions of the stan- national Energy Conservation Code dard requirement in cases of emer- as a foundation code.

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o Provides for modification of the code reducing energy consumption and by the commission to achieve the effi- improving the energy efficiency of ciency levels of the Florida Energy Effi- state data centers by December 31, ciency Code for Building Construc- 2010, and bi-annually thereafter. tion. o Requires that when the total cost of Thermal Efficiency Standards (s. 553.9061, ownership of an energy efficient prod- F.S.) uct is less than or equal to the existing data center facility or infrastructure, Provides for targeted increases in the energy technical specifications for energy ef- efficiency standards in the Florida Building ficient products be incorporated in the Code totaling 50 percent by the year 2019. plans and processes for replacing, Prior to implementing the increases, requires upgrading, or expanding data center the Florida Building Commission to adopt by facilities or infrastructure. rule and implement a cost-effectiveness test to ensure increases in efficiency result in a posi- Florida Energy Systems Consortium (s. tive net financial impact. 1004.648, F.S.)

Appliances and Pool Pumps (s. 553.909, F.S.) o Establishes the Florida Energy Systems Consortium (consortium), consisting o Sets minimum requirements for com- of all eleven state universities. The mercial or residential swimming pool consortium is designed to promote pumps, swimming pool water heat- collaboration between experts in the ers, and water heaters used to heat State University System for the pur- potable water. poses of sharing energy-related expertise and assisting in the development o Requires commercial or residential and implementation of a “comprehen- swimming pool pumps or water heat- sive, long-term, environmentally com- ers sold after July 1, 2011, comply patible, sustainable, and efficient en- with requirements for appliances set ergy strategic plan for the state.” by the Florida Energy Efficiency Code for Building Construction. o Provides for the consortium to be administered at the University of Flor- o Sets requirements for residential pool ida (UF). Provides that the director be pump motors and portable electric selected by the President of UF and spas. that the director’s office be located at Agency for Enterprise Information Technology the UF. (Section 111) o Requires the director to report to the o Requires the Agency for Enterprise In- Florida Energy and Climate Commis- formation Technology to define speci- sion. Creates an Oversight Board, fied objective standards and conduct consisting of the Vice President for evaluations relating to energy effi- Research, or other appropriate rep- ciency. resentative, at each of the universities, which will have ultimate re- o Requires the agency to submit rec- sponsibility for both the technical ommendations to the Legislature for

108 CARLTON FIELDS, P.A.

performance and financial man- Speaker of the House of Representa- agement of the consortium. tives no later than March 1, 2010.

o Specifies that the consortium is respon- Decoupling (Section 114) sible for soliciting and leveraging state, federal, and private funds for Directs the Public Service Commission the purpose of conducting education (PSC) to analyze utility revenue decoupling and research and development in the and provide a report and recommendations area of sustainable energy. to the Governor, the President of the Senate, and the Speaker of the House of Repre- o Creates a Steering Committee, con- sentatives by January 1, 2009. sisting of representatives of the Uni- versity of Florida, Florida State Uni- Motor Vehicle Emissions Standards (Sec- versity, the University of South Flor- tion 115) ida, the University of Central Florida, Prohibits DEP from adopting and imple- the Florida Atlantic University, the menting the California motor vehicle emis- Florida International University, and sions standards until ratified by the Legisla- the Florida Energy and Climate Com- ture and prohibits DEP from modifying its mission, to establish and assure the rules to implement such standards until ratified success of the consortium’s strategic by the Legislature. plan. Recognition Program for Green Schools (Sec- Woody Biomass Economic Study (Section tion 116) 113) Requires the Department of Education and Directs the Department of Agriculture o the Department of Environmental Protection and Consumer Services, in conjunc- (DEP) to develop a program to provide tion with the Department of Envi- awards or recognition for outstanding efforts ronmental Protection, to conduct an in conservation, energy and water use reduc- economic impact study on the effects tion, environmental enhancement, and con- of granting financial incentives to en- servation-related educational curriculum de- ergy producers who use woody bio- velopment; authorizes students, classes, mass as fuel. teachers, schools, or district school boards to o Requires study to include an analysis be eligible for such awards or recognition; of effects on wood supply and prices, encourages the departments to seek private impacts on current markets, and on sector funding for the program. forest sustainability. Subject to the Governor’s veto powers, the ef- o Requires results of the study to be fective date of this bill is July 1, 2008, except submitted to the Governor, the as otherwise provided. President of the Senate, and the

109

2008 Florida Legislature Post-Session Report

HEALTH CARE & HEALTH INSURANCE

CARLTON FIELDS, P.A.

HEALTH CARE & HEALTH INSURANCE CS/CS/SB 370 Personal Care Attendant Program This legislation amends the existing Personal Care Attendant (PCA) program and expands participant eligibility to provide personal care attendants to persons who have severe and chronic disabilities of all kinds. The bill names the program the “James Patrick Memo- rial Work Incentive Personal Attendant Ser- vices Program.”

The bill merges the Cross Disability Pilot (CDP) program that provides personal care attendants to the significantly disabled in Or- Little William Ausley Hollimon, right, puts the gavel to ange, Osceola, Lake, and Seminole counties good use after it was handed to him by Speaker with the PCA program and specifies that all Marco Rubio, R-Miami, to the delight of his mom Rep. Loranne Ausley, D-Tallahassee. (House photo by Mark persons who are enrolled in the existing PCA Foley.) and the CDP pilot projects on June 30, 2008, are automatically eligible for and enrolled in gram development. The bill establishes a the revised program. program oversight group and requires the FACIL to work with the oversight group to The bill requires the Florida Endowment provide training to program participants re- Foundation for Vocational Rehabilitation garding hiring and managing personal care (FEFVR, also known as the Able Trust) to enter attendants, and to adopt and revise policies into an agreement with the Florida Association and procedures governing the program. of Centers for Independent Living (FACIL, or the association) by no later than October 1, The bill continues to use existing funding 2008, to administer the program. To ensure sources for the PCA and CDP programs, continuity of services, the parties will execute which are the Tax Collection Enforcement a memorandum of understanding to cover Diversion Program and the Motorcycle Spe- the period between July 1, 2008, and the cialty License Plate Program. There is no ad- execution of the final order. The bill ear- ditional fiscal impact to the General Revenue marks 12 percent of the funds paid to pro- Fund in Fiscal Year 2008 - 09. gram participants from the funds deposited with FEFVR pursuant to the Tax Collection En- Subject to the Governor’s veto powers, the forcement Diversion Program and the Motor- effective date of this bill is July 1, 2008. cycle Specialty License Tag to pay for this administrative expense.

The bill deletes obsolete language regarding eligibility criteria, training and pro-

113 2008 LEGISLATIVE REPORT

HB 461 (individual and group health plans Health Flex Plans only);

The bill expands the population eligible to o The member identification number, purchase health flex plans by raising the in- contract number, and policy or group come limit from 200 to 300 percent of the number, if applicable; federal poverty level, which is $63,600 for a family of four, and removes obsolete eligibil- o A contact phone number or electronic ity provisions. address for authorizations and admission certifications; The bill extends the program, which expires July 1, 2008, through July 1, 2013. Subject o A phone number or electronic ad- to the Governor’s veto powers, the effective dress for obtaining benefits verifica- date of this bill is July 1, 2008. tion and information to determine patient financial responsibility; and

CS/HB 535 o The national plan identifier. Health Insurance An HMO must also include a statement that The bill revises the definition of “bone marrow it is indeed an HMO. The bill specifies that transplant” to include, for insurance coverage HMOs are only those authorized under the purposes, nonhablative therapy and trans- applicable Florida law. plants intended to prolong life. Insurers must issue cards with the specified in- Health insurers and health maintenance or- formation when cards are issued or policies ganizations (HMOs) are currently not re- are renewed on or after January 1, 2009, quired to provide insurance identification except that state group insurance program cards to policyholders/subscribers. This bill providers are allowed to wait until new cards requires such entities to provide identification are issued, regardless of renewals, to make cards with specified information. The identifi- the changes. cation card must present information in a readily identifiable manner; the information Subject to the Governor’s veto powers, the may also be embedded on the card and be effective date of this bill is January 1, 2009. available through magnetic stripe/smart card or provided through other electronic technology. CS/CS/SB 564 Automated External Defibrillators At a minimum, the insurance identification An Automated External Defibrillator (AED) card must contain the following information: is a small, lightweight device used to as- o The name of the organization issuing sess a person’s heart rhythm and, if neces- or administering the policy/contract sary, administer an electric shock to restore a and the name of the contract normal heart rhythm in a victim of cardiac holder/certificate holder/subscriber; arrest.

o The type of plan if filed in the state, The bill revises the requirements for the use of an indication that the plan is self- an AED in cases of cardiac arrest. Under the funded, or the name of the network bill, any person who uses an AED is encour-

114 CARLTON FIELDS, P.A. aged, rather than required, to obtain appro- The bill requires an individual seeking to priate training. Also, the bill encourages per- attain the required orthotics and prosthet- sons or entities that possess an AED to notify, ics experience to be approved by the board rather than register with, the local emergency and registered as a resident by the depart- medical services director of the location of ment. To be considered by the board for the device. registration, the applicant must have a Bachelor of Science or higher-level post- The bill also revises requirements under graduate degree in Orthotics and Prosthetics which a person who acquires an AED may or, at a minimum, a bachelor’s degree and a obtain immunity from civil liability for harm certificate in orthotics or prosthetics. The resulting from the use of an AED. The bill pro- board is allowed to set a registration fee not vides that the immunity applies to a person to exceed $500. who acquires the AED and makes the device available for use. Furthermore, the bill elimi- The bill requires mandatory courses for licen- nates a requirement that those who acquire sure as an orthotist, prosthestist, orthotic fitter, and make available an AED must notify the orthotic fitter assistant, and pedorthist. It also local emergency medical services medical expands the educational requirements for or- director of the most recent placement of the thotists and prosthetists to include a higher- device. Finally, an employer or principal level postgraduate degree in orthotics and who acquired an AED may still enjoy immu- prosthetics, in addition to a Bachelor’s de- nity if he or she did not provide appropriate gree in orthotics and prosthetics. training to his or her employee or agent provided that the device is equipped with audi- The bill repeals the board’s authority to issue ble, visual, or written instructions on its use. a temporary license. Effective January 1, 2009, the bill specifies duties that a licensed Subject to the Governor’s veto powers, the orthotist, prosthetist, or pedorthist may dele- effective date of this bill is July 1, 2008. gate to support personnel. The person acting as support personnel must wear an identifi-

cation tag. CS/HB 607 Orthotics, Prosthetics, and Pedorthics Effective January 1, 2009, the bill requires The definitions for orthotics, pedorthics, and the posting of a license or registration and prosthetics are modified to delete the re- information about the Department of Health’s quirement that the orthotist, pedorthist, or Consumer Services Unit at each facility prosthetist consult with a licensed occupa- where patients are seen. The bill also requires tional therapist or physical therapist regard- each licensee or resident to wear an identifi- ing treatment, if the patient is under the cation tag during patient contact. therapist’s care. The bill adds making deceptive, untrue, or The bill amends the composition and member fraudulent representations in the practice terms of the Board of Orthotists and Prosthetists of orthotics, prosthetics, or pedorthics and (board) and provides the board the authority practicing orthotics, prosthetics, or pedor- to define standards of practice for orthotic fit- thics without a licensed physician’s written ters, orthotic fitter assistants, pedorthists, and prescription to the list of acts that consti- residents. tute grounds for discipline.

115 2008 LEGISLATIVE REPORT

The bill expands title protection for certain CS/HB 803 licensed and/or registered orthotist, prosthe- Licensure of Psychologists tists, prosthetist-orthotists, orthotic fitters, or- The bill requires the Board of Psychology thotic fitter assistants, pedorthists, prosthetic (board) to close the application file of an ap- residents, and orthotic residents. plicant for licensure who fails to pass the na- Subject to the Governor’s veto powers, the ef- tional psychology exam and the state laws fective date of this bill is July 1, 2008, except and rules exam, or who fails to complete the as otherwise expressly provided. required post-doctoral supervision, within 24 months.

CS/CS/SB 686 The bill requires the board to implement a pro- Nursing Facilities cedure for an applicant to apply for an extension beyond 24 months. This bill permits nursing homes operating under a standard license to develop a plan to The bill also allows the board to create a rule provide training for certified nursing assistants that will allow an individual who completes the (CNAs), and provides for agency approval of required post-doctoral supervision to continue such training programs. The bill also redefines to practice under supervision of a licensed what constitutes an “adverse incident” within psychologist as long as the individual has a a nursing home, and removes the state re- current application on file and no final order quirement that facilities notify the Agency of denial has been issued. for Health Care Administration within one day of a risk manager’s receipt of a report Subject to the Governor’s veto powers, the detailing an adverse incident. The bill pro- effective date of this bill is January 1, 2009. vides that, if additional surveys of a licensed nursing facility have been conducted due to HB 989 cited deficiencies and those deficiencies are Physician Assistants overturned as the result of administrative action, the most recent survey must be con- The bill deletes antipsychotics and parenteral sidered a licensure survey for purposes of preparations from the formulary of drugs that scheduling future visits. Finally, for purposes of a physician assistant is prohibited from pre- compliance with minimum staffing require- scribing. There are several drugs included ments, the bill authorizes a nursing home to under each of class. allocate a licensed nurse’s time between For example, a PA may be allowed to pre- CNA duties and licensed nursing duties with- scribe injectables such as: out first seeking agency approval for the allocation. o Forteo, which may be used to treat symptoms of severe osteoporosis. Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. o Emitrex, which may be used to treat migraine headaches.

o Lovenox, which may be used to prevent blood clots.

116 CARLTON FIELDS, P.A.

Also, a PA may be allowed to prescribe franchise health insurance contracts. The bill antipsychotics such as: defines the terms applicable to this section and provides that a contracting entity may o Saraquel, which may be used to treat not sell, lease, rent, or otherwise grant access Alzheimer patients. to the health care services of a participating provider under a health care contract unless o Abilify, which may be used to treat expressly authorized by the contract. The bi-polar disorder. bill provides for: (1) specific information o Other non-controlled substances such that must be included in the contract; (2) no- as Haldol, Resperdol, Thorazine, and tice requirements to participating providers; Lithium. and (3) circumstances under which the contracting entity can provide access to a par- The bill grants authority to the PA Council to ticipating provider’s services by a third party. change the PA formulary; it does not man- The bill specifies requirements that contracting date any change to the formulary. entities must comply with to identify third parties that have been granted access to the Subject to the Governor’s veto powers, the health care services of the participating pro- effective date of this bill is July 1, 2008. vider upon request, and to ensure that ex- planation of benefits or remittance advice CS/CS/SB 1012 identifies the contractual source of any ap- Health Insurance Claims Payments plicable discount. The bill also provides for circumstances under which a third party’s The bill authorizes the Office of Insurance access to the provider’s discounted rate Regulation to waive the requirement that a mul- shall terminate, and requires contracting tiple-employer welfare arrangement maintain entities to ensure third parties to comply its principal place of business in this state if with the contract terms it has with the pro- the arrangement meets certain specified vider. The bill creates exceptions to these pro- conditions and has a minimum specified fund visions for specified entities, and specifies in- balance at the time of licensure. formation that may be used to determine a The bill requires insurers which contract with contracting entity’s compliance. The bill pro- preferred providers to make payments di- vides that s. 627.64731 does not apply to a rectly to the preferred provider for services contract between a contracting entity and a rendered to insureds by those preferred pro- discount medical plan organization licensed viders, and adds ambulance providers provid- or exempt under part II of chapter 636. ing emergency transport to the group of (non- The bill requires health maintenance organi- preferred) providers for which an insurance zation (“HMO”) claims forms to allow for as- contract may not prohibit direct payment. signment of benefits from the insured to any The bill redefines the term “small employer” contracted hospital, ambulance provider, for purposes of the Employee Health Care physician or dentist if any benefits are due to Access Act. the subscriber for covered services under the terms of the agreement between the sub- The bill creates a new section of law, s. scriber and HMO. With a few exceptions 627.64731, F.S., applicable to group health already provided for in law, the bill limits insurance, blanket health insurance, and the HMOs payment to the provider to the

117 2008 LEGISLATIVE REPORT amount that the insurer would otherwise have CS/CS/SB 1360 paid without the assignment. Pharmacy Technicians

The bill provides an exception to the 30-month The bill revises the requirements for pharmacy claim period for insurer and HMO overpay- licensure by endorsement by deleting the re- ments, applicable to services by physicians, quirement that an applicant for licensure as a chiropractors, podiatrists and dentists. All pharmacist must have obtained a passing health insurer or HMO contract claims for score on the licensure examination not more such overpayments must be submitted than 12 years prior to application. within 12 months after payment of the The bill requires the Board of Pharmacy claim, with certain exceptions. The bill re- (board) to adopt rules for the registration ap- quires such providers to submit underpayment plication process and registration administra- claims within 12 months after payment of the tion. Effective January 1, 2010, pharmacy claim. technicians must be registered. The board Subject to the Governor’s veto powers, the ef- must register pharmacy technician appli- fective date of this bill is November 1, 2008, cants who are at least 17 years old, com- and applies to contracts entered into, is- plete an approved application form, submit sued, or renewed on or after that date, the required fees, and otherwise meet regis- and the amendments made by the act to ss. tration requirements. A person whose li- 627.6131 and 641.3155, F.S., apply to cense to practice pharmacy has been sus- claims payments made on or after November pended, denied, or restricted, is prohibited 1, 2008. from registering as a pharmacy technician. Effective January 1, 2011, an applicant to SB 1092 become a registered pharmacy technician Alzheimer's Disease/Medicaid must also have completed an approved Waiver Program pharmacy technician training program. The bill specifies that a registered pharmacy This bill extends the repeal date for the technician registered prior to January 1, Medicaid Home and Community-Based 2011, who has worked as a pharmacy tech- Waiver Program for Persons with Alzheimer’s nician for a minimum of 1,500 hours under a Disease. The bill directs the Office of Pro- licensed pharmacist’s supervision or who has gram Policy Analysis and Government Ac- received certification as a pharmacy techni- countability to conduct an evaluation of com- cian from the national Commission for Certi- parable Medicaid waivers to determine their fying Agencies is exempt from the require- comparative cost effectiveness and ability to ment to complete an initial training program delay or prevent institutionalization of Medi- for the purposes of registration. caid recipients, with findings and recommendations due to the Legislature prior to the Pharmacy technician students obtaining prac- 2010 Regular Session. tical training and persons licensed as pharmacy interns are exempted from the registra- Subject to the Governor’s veto powers, the tion requirements. The bill specifies registra- effective date of this bill is upon becoming a tion renewal requirements for pharmacy tech- law. nicians as well as grounds for discipline

118 CARLTON FIELDS, P.A. against an applicant for registration or a reg- Salvinorin A will be a third degree felony. istered pharmacy technician. The offense of purchase of Salvia divinorum or Salvinorin A will also be a third degree Effective January 1, 2010, it will be unlawful felony. for a person who is not registered as a pharmacy technician, or who is not otherwise Subject to the Governor’s veto powers, the exempt, to perform the functions of a regis- effective date of this bill is July 1, 2008. tered pharmacy technician or hold himself or herself out as a pharmacy technician. A vio- CS/HB 1429 lation of this provision is a misdemeanor of Mental Health and Substance Abuse the first degree. Services Subject to the Governor’s veto powers, the CS/HB 1429 provides authority and direction effective date of this bill is upon becoming law to the Department of Children and Families to except as otherwise provided. implement Behavioral Health Managing Enti- ties. Managing entity is a Florida corporation CS/HB 1363 that is exempt from taxation under s. Controlled Substances 501(c)(3), of the Internal Revenue Service and is under contract to the department to Salvia divinorum is a perennial herb in the manage the day-to-day operational delivery mint family that is native to Oaxaca, Mexico. of behavioral health services through the es- The active component is the hallucinogen tablishment of an organized system of care. Salvinorin A. In recent years, Salvia divinorum has begun to be used as a recrea- The bill provides the Department of Children tional drug in this country. No state or fed- and Families the option of contracting with a eral statute regulates the sale, purchase or managing entity for behavioral health ser- possession of Salvia divinorum or Salvinorin vices provided under the authority of chap- A in Florida. ters 394 and 397, Florida Statutes. The bill allows currently operating managing entities Chapter 893 classifies controlled substances that provide mental health, substance abuse, into five different categories, known as Medicaid and child welfare services to con- schedules, in order to regulate the manufac- tinue operating with this structure. ture, distribution, preparation, and dispensing of the substances. Schedule I substances have The operating cost of the managing entity a high potential for abuse and have no cur- contracts is to be funded by the department rently accepted medical use in the United and through savings and efficiencies States and its use under medical supervision achieved by implementing the managing enti- does not meet accepted safety standards. ties. Managing entities are to submit plans to the department which describe anticipated The bill adds Salvia divinorum and Salvi- efficiencies. The bill provides Legislative in- norin A to schedule I. This will make pos- tent that reductions in state cost for contract session of these substances a third degree management and administrative duties be felony in conformity with other Schedule I proportionately reduced and the savings hallucinogens. The offense of sale, manufac- used to fund the administrative functions ture or delivery or possession with intent to sell, of the managing entity. The circuit and re- manufacture or deliver Salvia divinorum or gion offices of the department, upon con-

119 2008 LEGISLATIVE REPORT tracting with a managing entity, are to redi- tion regarding billing estimates, provides that rect their efforts to monitoring the managing the estimate may be based on average entity contract, negotiating quality improve- charges, and requires facilities to post a no- ment goals, reviewing plans, licensing func- tice in their reception area regarding their tions, health planning activities, conducting charity care policies. The bill provides for a onsite readiness reviews of managing enti- $500 fine for each instance of a facility’s ties and communicating with and advising failure to provide the requested information. department headquarters. Additionally, the bill modifies the current re- The bill provides requirements and essential porting and data collection requirements per- elements for managing entities including but taining to the Agency for Health Care Ad- not limited to core functions, governance ministration (“AHCA”) and health care facili- structures, planning and budgeting func- ties by including such measures as the aver- tions and information access requirements. age of undiscounted charges on frequently In addition, the bill provides department’s preformed procedures and preventive di- responsibilities, such as directions for con- agnostic procedures, and the range of tracting and the role of the department after procedure charges from highest to lowest, entering into a managing entity contract. in the information that AHCA shall disclose. Furthermore, the bill requires AHCA The department must provide reports to the to publish electronically the charges for no Governor and Legislature twice each year until fewer than 150 of the most commonly per- full statewide transition to managing entities formed adult and pediatric procedures, in- is accomplished. cluding outpatient, inpatient, diagnostic, and preventative procedures. Subject to the Governor’s veto powers, the effective date of this bill is upon becoming a Subject to the Governor’s veto powers, the law. effective date of this bill is January 1, 2009.

CS/CS/SB 1488 CS/CS/SB 1648 Health Care Consumer's Right to In- HIV Testing/Informed Consent formation Act The bill allows an HIV test to be ordered on This bill, which may be cited as the “Health the available blood of a source patient in the Care Consumer’s Right to Information Act,” event of a significant exposure if consent can- has a stated purpose of providing health not be obtained from the patient within the care consumers with reliable and under- time period necessary to perform the test and standable information about facility charges begin prophylactic treatment of the exposed in order to assist consumers in making in- medical or nonmedical personnel. This informed decisions about health care. The bill cludes instances when the source patient is specifies information that must be provided to incapable of providing consent to testing. uninsured persons in the form of a reasonable estimate of charges and information The bill also directs appropriate medical per- regarding the provider’s or facility’s dis- sonnel under the supervision of a licensed count or charity policies for which the unin- physician to document that a significant sured person may be eligible. The bill speci- exposure has occurred and the results of fies time limits for providing certain informa- an HIV test are medically necessary to de-

120 CARLTON FIELDS, P.A. termine the course of treatment for the medi- The bill provides for eligibility requirements cal or nonmedical personnel. The medical and procedures for existing hospitals to chal- personnel will base these decisions on written lenge a decision by AHCA regarding a gen- protocols based on the National Centers for eral hospital CON application, and defines a Disease Control and Prevention’s guide- process by which the applicant may respond lines on HIV post-exposure prophylaxis. This to another hospital’s challenge of its CON is currently done by a licensed physician in application. his or her medical judgment. The bill also amends the administrative hear- Subject to the Governor’s veto powers, the ing and appeals processes for actions re- effective date of this bill is July 1, 2008. garding CON applications by:

o Requiring administrative hearings re- CS/SB 2326 garding general hospital applications Certificates of Need/General to commence within 6 months after Hospitals the administrative law judge has The bill amends the process “general hospi- been assigned; tals” use to apply for and obtain a certificate o Precluding the granting of continu- of need (“CON”) from the Agency for ances in general hospital administra- Health Care Administration (“AHCA”). In tive cases absent a finding of ex- doing so, the bill limits the criteria that traordinary circumstance; (3) limiting AHCA uses to review CON applications for the adversarial process to hospitals general hospitals as opposed to all other that are competing applicants or health care facilities that are subject to the who have submitted a detailed writ- CON process. ten statement of opposition to an The bill requires an application for a CON application, and to issues raised in for a general hospital to identify the project’s those opposition statements absent location as well as the primary and secon- the showing of good cause to expand dary service areas by zip code. The bill also the scope; and provides for revocation of the CON if the o Providing that a party who appeals project’s location or service area described in an administrative decision and loses a general hospital’s CON application mate- must pay the opposing party’s attor- rially changes. Further, the bill provides that ney’s fees in an amount up to $1 mil- parties participating in an administrative lion and post a bond in the amount hearing regarding the issuance of a CON of $1 million in order to maintain the may participate in a subsequent proceeding appeal. The new attorney’s fees re- regarding the revocation of the CON based quirements do not apply to AHCA. upon a material change in location or primary service area, specifies time periods Subject to the Governor’s veto powers, the within which a general hospital must furnish bill is effective upon becoming law. satisfactory proof of the hospital’s financial ability to operate, and authorizes AHCA to establish documentation requirements.

121 2008 LEGISLATIVE REPORT

CS/CS/SB 2534 maintenance organization plans, limited bene- Health Insurance/Uninsured fit plans, prepaid services, service contracts, and flexible spending accounts. The bill makes several provisions to improve access to health care and health coverage. Participation is voluntary. Eligible employers include those with 50 or fewer employees as Cover Florida Health Care Access Program well as certain public employers. Participat- The Cover Florida Health Access Program ing employers will receive assistance to (Cover Florida) is designed to provide an qualify under federal tax regulations in order affordable health care option for uninsured to offer a cafeteria of health benefits to their individuals in Florida between the ages of workers. Eligible vendors include licensed 19-64 who meet certain other criteria. A insurers and licensed HMOs which may sell Cover Florida plan must provide non- risk-bearing products and other arrangements catastrophic coverage and may provide for services. Prepaid clinics, health care pro- catastrophic coverage, supplemental insur- viders, provider organizations, and other ance, prepaid health clinic, and discount corporate entities are eligible to sell service medical plan product options to enrollees. contracts and other arrangements for a The Agency for Health Care Administration specified amount and type of health services (Agency) and the Office of Insurance Regula- or treatments. Eligible individuals are workers tion (Office) are responsible for jointly estab- of participating employers. Health insur- lishing and administering Cover Florida, and ance agents may also participate in order must issue an invitation to negotiate by July to assist individuals to choose the coverage 1, 2008, for the design of a Cover Florida or services they want from the program. plan proposal, and may issue an invitation Products sold through the program are not to negotiate for Cover Florida Plus plan pro- subject to the mandated coverages established posals offering supplemental insurance, pre- in state law or certain other regulations nor- paid clinic services, or discount medical mally applied to health insurance. However, plans. Cover Florida Plans are not subject all insurers and HMOs offering risk-bearing to licensure under the Florida Health Insur- products must be licensed to do so in the ance Code or ch. 641. The agency and the State of Florida. The program will use post- office are required to approve at least one enrollment risk adjustment or other risk Cover Florida plan entity having an existing pooling methodologies to avoid selection statewide provider network and may approve bias. at least one regional network plan in each Information about the products and ser- Medicaid area. Cover Florida plans are vices in the program will be made avail- considered health insurance for the pur- able to consumers in a variety of ways in- poses of the state employee retiree health cluding through a secure website. This infor- insurance subsidy. mation will include comments from the Office Florida Health Choices Program of Insurance Regulation regarding any risk- bearing products sold through the program. The Florida Health Choices Program is created as a single, centralized market for the The bill establishes a corporation, Florida sale of products that enable individuals to Health Choices, Inc., to be responsible for pay for health care. These products include implementation of the program. The govern- but are not limited to insurance plans, health ing board of the corporation will be ap-

122 CARLTON FIELDS, P.A. pointed by the Governor, the President of the cent FPL (or only 50 percent of the Senate, and the Speaker of the House. The employees is the Health Flex plan is corporation will be subject to the Sunshine offered by an insurer or HMO). Law, and the Florida Code of Ethics. The bill also extends the expiration date of Dependent Coverage the program from July 1, 2008 to July 1, 2013. The bill requires group health insurers to offer policyholders the option to continue coverage KidCare of their children on their family policy until age 30, if the child is: The bill expands eligibility by eliminating the 10 percent cap on full-pay enrollees in o Unmarried with no dependents; MediKids (ages 1-5) and Healthy Kids (ages 6-19) with a family income greater than 200 o A resident of Florida or a full-time or percent of the federal poverty level. Healthy part-time student; and Kids Corporation is required to submit a report to the Legislature and Governor, by Feb- o Does not have insurance coverage ruary 1, 2009, on the premium impact to the under any private or public plan. subsidized portion of KidCare from the in- Health Flex Plans crease of full-pay enrollees, and make recommendations on how to eliminate or miti- The Health Flex Plan Program was estab- gate any premium impact. lished to offer basic affordable health care services to low-income, uninsured residents. Insurance Code Exemption for Certain Reli- The bill expands eligibility for Health Flex gious Organizations plans by: The bill creates an exemption from the Flor- o Raising the family income limit from ida Insurance Code for nonprofit religious 200 to 300 percent of the federal organizations that qualify under Title 26, s. poverty level (FPL); 501 of the IRS Code which meet the following criteria: limit membership to members of o Allowing persons who lose eligibility the same religion; act as an organizational for Medicaid or KidCare due to in- clearinghouse for information between par- come limits to apply without a lapse in ticipants who have financial, physical, or coverage; medical needs and those with the ability to pay for the benefit of those members in need; o Allowing individuals covered by a provide for medical or financial needs of par- HMO that has a Health Flex plan to ticipants through payments directly from one enroll in the HMO’s Health Flex plan participant to another; suggest amounts that without a lapse in coverage; and participants may voluntarily give with no as- o Allowing individuals in an employer sumption of risk or promise to pay either group to access Health Flex plans if among the participants or between the par- they were not covered by private in- ticipants. surance for the last 6 months, and at least 75 percent of the employees have an income at or below 300 per-

123 2008 LEGISLATIVE REPORT

Appropriations o Requirement that each signatory increase coverage for behavioral inter- The bill appropriates $1.5 million for the ventions and therapies when medically Florida Health Choices, Inc. necessary due to the presence of a developmental disability. Procedures for Subject to the Governor’s veto powers, the clear and specific notice to policy- bill is effective upon becoming law. holders identifying the amount, scope, and conditions under which cover- CS/CS/CS/SB 2654 age is provided. Autism Spectrum Disorder o Penalties for documented cases of Medicaid denied claims for medically neces- The bill authorizes the Agency for Health sary services due to the presence of a Care Administration (AHCA) to seek federal developmental disorder or autism approval for a Medicaid waiver or state spectrum disorder. plan amendment to provide home and o Proposals for new product lines that community-based therapies and behavioral may be offered in conjunction with interventions to children under age 6 diag- traditional health insurance and pro- nosed with a developmental disability, autism vide a more appropriate means of spectrum disorder, or Down syndrome. The spreading risk, financing costs, and bill limits such Medicaid benefits to $36,000 accessing favorable prices. annually not to exceed $108,000 in total lifetime benefits. AHCA is required to report Upon completion of compact negotiations, to report progress and recommendations to OIR must report the results, and beginning the Legislature annually starting January 1, Feb. 15, 2009, OIR annually report speci- 2009, and is prohibited from implementing fied information regarding the compact. the new program without prior legislative approval. Insurance Mandate

Insurance Compact The bill imposes a coverage mandate on all large group health insurance policies, benefit The bill requires the Office of Insurance plans and HMO contracts issued or renewed Regulation (OIR) to convene a working on or after April 1, 2009. Plans are required group of representatives of all licensed in- to cover well-baby and well-child screening for surers and health maintenance organiza- diagnosing autism spectrum disorder, and tions (HMOs) to negotiate an industry com- treatment of autism spectrum disorder pact that includes a binding agreement re- through therapies and applied behavior garding coverage and access to services for analysis, including services habilitative in persons with developmental disabilities or nature. Coverage is limited to $36,000 an- autism spectrum disorder. The working nually not to exceed $200,000 in total life- group also includes representatives of em- time benefits, which shall be adjusted annually ployers with self-insured plans, 2 designees of based on the medical price component of the the Governor and 1 designee each of the Consumer Price Index. The bill prohibits an Senate President and Speaker of the House. insurer from various contractual actions be- The compact must include:

124 CARLTON FIELDS, P.A. cause an individual is diagnosed as having ensuring that drug manufacturers are not in- a developmental disability. advertently subject to unnecessary regulation; and ensuring that drug wholesalers can OIR is prohibited from enforcing the coverage efficiently distribute medical convenience mandate in the bill against insurers and HMOs kits. which are compact signatories by April 1, 2009, but must enforce the mandate against The bill also provides greater flexibility for pre- signatories which have not complied with the scription drug wholesalers to use the direct- terms of the compact by April 1, 2010. purchase pedigree paper. In addition, the bill exempts a nonresident prescription drug Subject to the Governor’s veto powers, the manufacturer from obtaining a Florida permit effective date of this bill is July 1, 2008. if it ships an active ingredient that it manufacturers to a Florida-permitted prescription drug HB 5045 manufacturer for research and development Workers' Compensation Medical purposes only. Services and Supplies Last, the bill creates two new permits. The This bill transfers the responsibilities of the first permit is a third party logistics provider Agency for Health Care Administration permit for any person that contracts with a (AHCA) with respect to workers’ compensation prescription drug wholesale distributor or pre- medical services and supplies from AHCA to scription drug manufacturer to provide ware- the Department of Financial Services (DFS). housing, distribution, or other logistics ser- The responsibilities transferred to DFS include vices on behalf of a manufacturer or whole- certification of health care providers to treat sale distributor, but who does not take title to injured workers; certification of expert medi- the prescription drug. The second permit is a cal advisors; determination of whether any health care clinic establishment permit, which health care provider has engaged in a pat- authorizes the direct purchase of prescription tern or practice of overutilization; and resolu- drugs by group physician practices. tion of reimbursement and utilization disputes concerning medical services. DFS Subject to the Governor’s veto powers, the through the Division of Workers’ Compensa- effective date of this bill is July 1, 2008. tion has provided day-to-day responsibility for these activities since November 2005 pursu- CS/HB 7083 ant to an interagency agreement with Health Care Fraud and Abuse Home AHCA. Health Agency Licensure Subject to the Governor’s veto powers, the The bill revises sections of ch. 400 to in- effective date of this bill is July 1, 2008. crease regulation of home health agencies by the Agency for Health Care Administration

(AHCA) in the following manner: HB 7049 Drugs, Devices, and Cosmetics o Requires license applicants to provide The bill is primarily a clarification and reor- a business plan, contingency funding, ganization of the laws that regulate drugs, detailed financial and ownership in- devices, and cosmetics. These clarifications formation and accreditation documen- include consolidating the use of terminology; tation in licensure applications, and

125 2008 LEGISLATIVE REPORT

prohibits transferring an application to o Limits the number of agencies an ad- another entity prior to the license be- ministrator or nursing director may su- ing issued; pervise, with some exceptions, requires notice to AHCA of a change or o Prohibits AHCA from granting a li- loss of a nursing director and imposes cense if the applicant is within a cer- a specific fine for failing to do so, retain distance of an existing agency quires staff training and documenta- owned by the same entity. tion of that training, and requires AHCA to promulgate certain rules re- o Creates new bases for action by lated to oversight by the director of AHCA on a license, including: nursing. Falsifying patient and staff training Makes fines for licensure deficiencies records; billing for services not o mandatory, rather than discretionary, provided a basis for action by and raises fine amounts for each AHCA on a license; class of deficiencies. Failing to provide services speci- Nurse Registry Licensure fied in the agreement with the patient or in the plan of care; The bill revises sections of ch. 400 to increase regulation of nurse registries by Providing remuneration for staff- AHCA. The bill requires that home health ing services connected to patient aides and certified nursing assistants be referral transactions; properly trained, and creates new bases for Providing services or staffing to as- action by AHCA on a license, including: sisted living facilities without fair Providing services or staffing to as- market value compensation; o sisted living facilities without fair Providing remuneration to per- market value compensation; sons involved in referrals or dis- Providing remuneration to persons charge-planning; o involved in discharge-planning; Failing to submit certain quarterly Providing free staffing or remunera- reports and five years’ worth of o tion to facilities or persons for refer- certain contracts to AHCA; giving rals; and cash to Medicaid or Medicare patients; and o Failing to submit five years’ worth of certain contracts to AHCA. Improperly contracting with, compensating or failing to properly The bill provides for various actions by document compensation for, AHCA on licenses, and imposes specific medical directors. fines for the above violations.

o Provides for various actions on licenses for and imposes specific fines for patterns of the above offenses.

126 CARLTON FIELDS, P.A.

Medicaid Durable Medical Equipment Pro- $50,000 surety bond per location, and ob- viders tain level 2 background screenings for employees in direct contact with Medicaid re- The bill revises sections of ch. 409 relating to cipients. Medicaid provider changes of ownership and Medicaid durable medical equipment (DME) The bill requires AHCA to submit a report to providers. The bill expressly defines “change the Legislature by January 1, 2009, on the of ownership”, specifies liability for moneys feasibility and costs of accessing the Medi- owed to AHCA when a provider changes care system to disallow Medicaid payment ownership, requires notice of a change of for home health services paid for under the ownership, and clarifies the effective dates of Medicare prospective payment system for re- provider agreements. The bill requires AHCA cipients who are dually eligible for Medicaid to limit its network of DME providers, with and Medicare. certain exceptions, to those which are accredited, meet certain requirements for physical Subject to the Governor’s veto powers, the business locations, directly provide the DME effective date of this bill is July 1, 2008. to the Medicaid recipient, provide a

127

2008 Florida Legislature Post-Session Report

INSURANCE & FINANCIAL SERVICES

CARLTON FIELDS, P.A.

INSURANCE & FINANCIAL SERVICES CS/CS/HB 343 Financial Services The bill authorizes financial institutions, insured depository institutions, or other authorized business entities to offer debt cancellation products. In general, debt cancellation products mean loan, lease, or retail installment contract terms, or modifications to loan, lease, or retail installment contracts, under which a creditor agrees to cancel or suspend all or part of a customer's obligation to make payments upon the occurrence of specified events. Debt cancellation products do not include title or liability insurance Rep. Dorothy Bendross-Mindingall, D-Miami, center, as defined in the Insurance Code. Addition- wipes a tear while documents are read on the House ally, the purchase of such debt cancellation floor regarding Florida’s historical role on the slavery products may not be used as a condition for issue. Left shows Rep. Audrey Gibson, D-Jacksonville, while right is Democratic Leader-pro tem Joyce Cusack, making a loan. D-DeLand. (House photo by Mark Foley.)

The bill also authorizes a motor vehicle retail may be purchased, but the total amount of installment seller, sales finance company, or credit life insurance on any debtor shall at retail lessors, to sell guaranteed asset protec- any time exceed the total amount of indebt- tion products in conjunction with any new edness, under certain circumstances. retail installment contract or contract for a loan. These products must be offered in ac- The bill also amends provisions relating to the cordance with chapter 520, Retail Install- capital requirements for new state banks and ment Sales, and the Financial Service Com- trust companies. mission rules. Additionally, the purchase of such guaranteed asset protection products Subject to the Governor’s veto powers, the may not be used as a condition for making a effective date of this bill is October 1, 2008. loan. CS/HB 643 Additionally, the bill creates a new insur- Foreclosure Fraud ance product that enables insurers to directly insure, rather than reinsure, banks and It is estimated that over 150,000 mortgage other entities against losses resulting from the foreclosures have occurred in Florida during writing of debt cancellation or debt suspen- 2007. National ranking of foreclosures sion agreements. These debt products are places Florida second on the list. As the not regulated by the Office of Insurance foreclosure numbers ascend, there is a corre- Regulation. lated rise in foreclosure related crimes. Ac- cording to Florida Attorney General data, The bill removes the limit on the amount criminals and scam artists have found a new and duration of credit life insurance that market of consumers to defraud by making

131 2008 LEGISLATIVE REPORT false promises to rescue homeowners from homeowner within 10 days after re- foreclosures. Homeowners victimized by ceipt of a notice of cancellation. these crimes have unknowingly signed over their deeds or even their accumulated equity o Notice of cancellation is to be printed has been stolen. immediately above the signature line in 12-point uppercase type in a speci- The bill creates consumer protections for fied format. homeowners who are in default on their mortgages, in foreclosure, or at risk of losing their For homeowners who conduct business with homes due to nonpayment, and such home- an equity purchaser, the bill provides that the: owners find themselves securing services o Nature and entire understanding of from foreclosure-rescue consultants or equity the transaction is to be expressed in purchasers. writing in 12- point uppercase type In the course of offering or providing foreclo- completed and executed by the parties sure-related rescue services, a foreclosure res- prior to encumbering or conveying an cue consultant is prohibited from: interest in the residence in foreclosure. o Initiating services without first execut- ing a written agreement with the o Homeowner receives a copy of the homeowner; or completed agreement within 3 hours after signing. o Collecting or securing payment before completing or performing all o Transaction agreement must state the agreed upon services. specifications of any option or right to repurchase the property in foreclo- For homeowners who secure services from sure and must comply with applica- foreclosure-rescue consultants, the bill pro- ble federal regulations. vides that the: o Homeowner may cancel without o Nature and specific details of a fore- penalty with notification by 5 p.m. closure-related rescue services agree- on the 3rd business day after signing ment be expressed in writing in 12- the agreement. point uppercase type. o Money paid by the equity purchaser to o Homeowner is given one business the homeowner or by the homeowner day to review the agreement prior to the equity purchaser must be re- to signing. Homeowner is given a 3- turned at cancellation. business day right to cancel without penalty. This right may not be o Right to cancel may not be waived by waived by either party. either party.

o Date of the agreement may not be o At the time an agreement is signed, a earlier than the date the home- notice of the homeowner’s right to owner signs. Consultant is to return cancel is provided. any payments received from the o Homeowner with a right to repurchase the property has a 30-day right

132 CARLTON FIELDS, P.A.

to cure any default on three separate Subject to the Governor’s veto powers, the occasions. This right must be in- effective date of this bill is October 1, 2008. cluded in the written agreement.

Equity purchaser fully assumes or dis- CS/SB 648 charges any liens. Insurable Interest/Insurance Contracts o Equity purchaser must verify and dem- This bill establishes requirements for issuance onstrate that a homeowner with a right of a personal insurance policy (life, health, to repurchase has the ability to make and disability) when a person seeks to in- the required payments in order to ex- sure someone other than him/herself. Un- ercise the repurchase option. der these circumstances, benefits must be payable to the person to be insured, the in- o Rebuttable presumption exist that the sured’s personal representatives, or a person homeowner has a reasonable ability to with a sufficient interest, known as an insur- make the required payments to repur- able interest, in the insured. Further, with lim- chase the property, provided the ited exceptions, the person to be insured must homeowner’s monthly expenses do consent to issuance of the policy. The bill not exceed 60 percent of the home- does not apply to policies not issued for de- owner’s monthly gross income. livery in Florida or that are not issued in Flor- o Price to repurchase must not be un- ida. reasonable. A rebuttable presump- The insurable interest requirement prevents tion arises between the equity pur- purchasers from insuring individuals in chaser and the homeowner if the whom they have virtually no interest and mak- repurchase price is greater than 17 ing benefits under the policy payable to them- percent per annum more than the to- selves or another person who is disinterested tal amount paid by the equity pur- in the continued life or health of the insured. chase, except under certain circum- The insurable interest must exist at the time stances. coverage begins, but may subsequently be The bill also provides that a rebuttable pre- extinguished without affecting the validity of sumption exists solely between the purchaser the policy. and the homeowner for any foreclosure rescue The bill lists relationships that create an in- transaction involving a lease option or other surable interest in the person to be insured repurchase agreement that the transaction is under a life, health, or disability insurance a loan and the conveyance from the home- policy, and include the following. Family owner to the purchaser is a mortgage. This members have an insurable interest in close provision does not apply to a subsequent pur- family members whom they hold in great af- chase unless it is recorded. fection. Business entities have an insurable Further, a person who violates any provisions interest in the owners of the business entity, or of the bill commits an unfair and deceptive any affiliate or subsidiary of the business entity trade practice subject to the penalties and and key employees. Parties to a contract for remedies provided in chapter 501, part II, F.S., the purchase or sale of a business entity have including a monetary penalty up to $15,000. an insurable interest in the lives of all other parties to the contract solely for purposes of the contract. Trusts and trustees have an

133 2008 LEGISLATIVE REPORT insurable interest in the trust grantor under volving real property, that may artificially life insurance policies owned by the trust inflated property values. when trust beneficiaries meet specified criteria. The bill also increases the criminal penalty for mortgage fraud from a third degree felony to a When benefits are paid under a policy that is second degree felony if the loan value ex- issued without the required insurable interest, ceeds $100,000. the person insured under the policy or the insured’s personal representatives may bring Subject to the Governor’s veto powers, the an action to recover benefits from the person effective date of this bill is July 1, 2008. to whom they were paid. SB 874 Subject to the Governor’s veto powers, the Title Loans/Regulation/Consumers effective date of this bill is July 1, 2008. In recent years, litigation has arisen regarding

the application of the Florida Title Loan Act CS/HB 743 being used for commercial transactions, such Mortgage Fraud as financing floor planning or inventory pur- During the recent real estate boom Florida chases by independent used car dealers. This ranked high in the number of mortgages that bill amends the legislative intent of the Act to were entered into with some component of clarify that it applies only to the regulation of fraud. Mortgage fraud is divided into two title loans made to consumers. The term types: fraud for property and fraud for profit. “consumer” is defined to mean individual Fraud for property is a misrepresentation borrowing of money for personal, family, or made by a borrower or other party in order household purposes. to qualify for a mortgage loan. The applicant may alter or falsify tax returns or misrepresent Subject to the Governor’s veto powers, the income or expenses. Generally, the buyer effective date of this bill is July 1, 2008. intends to repay the loan. CS/HB 937 However, the most prevalent type of mort- Title Insurance gage fraud is fraud for profit. This crime generally involves multiple loan transactions This bill creates the Florida 2008 Title Insur- with several financial institutions involved. The ance Study Advisory Council to undertake a FBI estimates that fraud for profit accounts for comprehensive examination of the title insur- 80 per cent of all mortgage fraud and involves ance system in Florida and make findings and collaboration or collusion by industry insiders. recommendations in its final report to the Governor, Speaker of the House of Represen- The bill addresses the reassessment of real tatives, and President of the Senate on or property involved in the crime of mortgage before December 31, 2009. fraud primarily for profit. This bill creates s. 193.133, F.S., which provides two opportu- The council is composed of 21 members, with nities for a property appraiser to adjust, if representatives from government, title insurers, necessary, an assessment of property af- insurance agents, the banking and real es- fected by mortgage fraud, or other fraud in- tate industries, and attorneys, and is chaired by the Governor or his designee, with the

134 CARLTON FIELDS, P.A.

Chief Financial Officer or her designee serv- Subject to the Governor’s veto powers, the ing as vice chair. The council is required to effective date of this bill is upon becoming a include in its examination of the title insur- law. ance delivery system:

o The historical development of the title CS/SB 966 insurance industry in Florida and its Automated Teller Machine uniqueness among other lines of in- Transactions surance. In 2006, the Legislature passed SB 704, relating to Automated Teller Machine surcharge, o The current regulatory structure under which took effect July 1, 2006. Provisions in which oversight responsibility is shared the law allowed automated teller machine between different state agencies. owners and operators to charge customers an o The adequacy of funds and agency access fee, or a surcharge, whenever custom- personnel to exercise regulatory ers conducted transactions using an interna- oversight. tional account.

o The adequacy of current mechanisms However, the internal policies and practices and expertise to gather meaningful of Visa and MasterCard do not allow auto- data to properly evaluate and adopt mated teller machine owners or operators to title insurance rates. collect surcharges from international card- holders at automated teller machines in the Such other topics as the chair, in consultation United States, except in states where it is ex- with the Council, deems necessary to conduct pressly allowed by law. a thorough examination of the title insurance industry. This bill authorizes an owner or operator of an automated teller machine to charge an To assist the council, the Office of Program access fee or surcharge to a customer con- Policy Analysis and Government Accountabil- ducting a transaction using an automated ity is required to conduct an independent teller machine card issued by an interna- review of the historical development of the tional banking corporation. The bill re- title insurance industry in Florida and the cur- quires an owner or operator of an auto- rent regulatory framework and report its find- mated teller machine to disclose such fee or ings to the council by September 30, 2008. surcharge in compliance with federal Regula- tion E, addressing electronic fund transfers. The Council must hold its first meeting by Au- The bill also protects an owner or operator’s gust 1, 2008, with all meetings to be held in ability to enter into an agreement to partici- Tallahassee. The Council will terminate after pate in a fee-free or surcharge-free network. submitting its final report, but no later than December 31, 2009. The final report must be Subject to the Governor’s veto powers, the approved by at least two-thirds of the coun- effective date of this bill is July 1, 2008. cil’s membership and the chair must be in the prevailing majority.

135 2008 LEGISLATIVE REPORT

CS/CS/SB 2012 o Permits hospitals to form alliances to Insurance Policies obtain self-insurance coverage for its members; provides that contracts of re- This bill makes the following changes relat- insurance issued to such alliances are ing to insurance: to receive the same tax treatment as o Requires insurers to notify long-term reinsurance contracts issued to insur- care insurance policyholders annually, ance companies. rather than every two years as under o Makes underwriting files of Citizens current law, of the right to designate a Property Insurance Corporation avail- secondary addressee to receive no- able to the policyholder and his/her tice of possible lapse in coverage attorney to the same extent that the or termination due to nonpayment files would be available from a pri- of premium. vate insurer in litigation under the Flor- o Permits reinstatement of long-term ida Rules of Civil Procedure. care policies that have been can- o Permits Citizens to release confidential celed for nonpayment of premium and exempt underwriting file records when the failure to pay premium was to government agencies upon written due to the policyholder’s continuous request and demonstration of need. confinement in a hospital, skilled nursing facility, or assisted living fa- o Specifies criteria that public housing cility for more than 60 days. authorities must meet to form self- insurance funds. o Requires that notice of possible lapse in coverage of a long-term care policy o Amends various provisions relating to for nonpayment of premium be sent public adjusters, including prohibition to the policyholder and secondary of certain solicitation practices; limit- addressee. ing fees that can be charged; providing licensure qualifications; and es- o Extends the statute of limitations for tablishing a public adjuster appren- claims on Holocaust-era insurance ticeship program and license. policies until July 1, 2018. o Authorizes titles insurers to petition o Permits the Office of Insurance Regula- the Office of Insurance Regulation for tion to waive the requirement that a a rate deviation for personal property multiple-employer welfare arrangement title insurance, a Uniform Commer- maintain its principal place of business cial Code insurance product. in Florida under specified conditions. o Extends for an additional year the offer o Clarifies that physician reimbursement of availability of excess coverage un- for purposes of motor vehicle personal der the Florida Hurricane Catastro- injury protection (PIP) insurance for phe Fund to certain limited appor- specified medical services is based on tionment companies, insurers ap- 200 percent of the “participating phy- proved to participate in the Insurance sicians” schedule of Medicare Part B. Capital Build-Up Program, and insur-

136 CARLTON FIELDS, P.A.

ers that purchased such coverage dation to a senior consumer is suit- from the fund in 2007. able.

o Provides an exemption from the cus- o Requires insurance agents, prior to tomer representative licensing exami- recommending an annuity to a senior nation for applicants with an associ- consumer, to obtain specified personal ate’s or bachelor’s degree who have and financial information from the con- completed at least 9 academic hours sumer relevant to the suitability of the in property and casualty insurance. recommendation, on a form adopted by the Department of Financial Ser- o Prohibits insurers, including Citizens vices. Property Insurance Corporation, from requiring insurance agents, as a con- o Provides that a consumer who refuses dition of appointment or continuation to provide information requested by of appointment, to take a course or an agent or insurer, before execution educational program that offers con- of the sale to sign a verification from tinuing education credits. the senior consumer on a form adopted by Department of Financial o Authorizes independent study pro- Services of the refusal. grams offering continuing education credits through correspondence to al- o Requires the insurer or agent to pro- low students to take a final closed vide the consumer with specified in- book examination without being moni- formation on a form adopted by the tored under specified conditions. Department of Financial Services concerning differences between the o Requires Citizens Property Insurance annuity product being recommended Corporation to electronically report for purchase and an existing annuity certain claims data and histories to a that would be exchanged. consumer reporting agency upon request. o Requires an agent to disclose to the applicant that purchase or exchange of Subject to the Governor’s veto powers, the ef- an annuity contract may have tax con- fective date of this bill is July 1, 2008 except sequences and the applicant should as otherwise provided. contact a tax advisor for additional advice. CS/CS/SB 2082 o Increases the “free look” period for a Insurance consumer to obtain a refund from 10 The “John and Patricia Seibel Act” creates en- days to 14 days after purchase of a hanced consumer protections related to annu- life insurance or annuity. ity and insurance transactions. o Authorizes the Office of Insurance For senior consumers, 65 and older, the bill: Regulation to order an insurer to re- scind an annuity and provide a full Requires that the insurer or insurance o refund of the premiums paid or the agent have an objectively reasonable accumulation value, whichever is basis for believing that a recommen- greater, when a consumer is

137 2008 LEGISLATIVE REPORT

harmed by a violation of the suit- “churning” are a first degree misde- ability statute. meanor and an administrative fine not greater than $5,000 for each nonwill- o Provides criminal and civil liability ful violation or an administrative fine protection to insurers for the acts of not greater than $30,000 for each independent individuals not affiliated willful violation. However, to impose with the insurer for selling its products, the criminal penalties, the practice when it involves an unauthorized must involve fraudulent conduct. sale. o The bill also establishes penalties for o Expands the scope of recordkeeping willfully submitting to an insurer on be- requirements to entities responsible for half of a consumer documents bearing the maintenance of records. a false signature. A person commits a third degree felony for this act with Provisions related to criminal penalties: an administrative fine not greater o The bill imposes increased fines and than $5,000 for each nonwillful vio- penalties for the unfair and deceptive lation or an administrative fine not insurance practices known as “twist- greater than $30,000 for each willful ing” and “churning.” Twisting is de- violation. fined as knowingly making any mis- Administrative fines may not exceed leading representations or incomplete o an aggregate amount of $50,000 for or fraudulent comparisons or fraudu- all nonwillful violations arising out of lent material omissions of or with re- the same action or an aggregate spect to any insurance policies or in- amount of $250,000 for all willful vio- surers for the purpose of inducing, or lations. tending to induce, any person to lapse, forfeit, surrender, terminate, o Prohibits an agent from utilizing des- retain, pledge, assign, borrow on, or ignations or titles that falsely imply convert any insurance policy or to take that he or she has special financial out a policy of insurance in another in- knowledge or training. surer. Additional measures in the legislation: o Churning, in general means the practice whereby policy values in an exist- o Requires all licensees to complete ing life insurance policy or annuity three hours of Department of Finan- contract, including, but not limited cial Services approved continuing to, cash, loan values, or dividend education on the subject of suitability values, and in any riders to that pol- in annuity and life insurance transac- icy or contract, are utilized to pur- tions, with certain exceptions. chase another insurance policy or annuity contract with that same insurer for o Clarifies the regulatory jurisdiction of the purpose of earning additional the agencies under the Department of premiums, fees, commissions, or other Financial Services regarding the sale compensation. of annuities and grants rulemaking authority. Conditional effective date: o The bill penalties for “twisting” or Section 9 related to annuity invest-

138 CARLTON FIELDS, P.A.

ments by seniors shall take effect 60 all Money Services Business licensees days after the date on which the final (Parts II-IV). rule is adopted or January 1, 2009, whichever is later. o Requires an examination of Money Services Business licensees at least Subject to the Governor’s veto powers, the once every five years. New licensees effective date of this bill is January 1, 2009. must be examined within 6 months after licensure. Licensees will incur

the costs of examination. CS/CS/CS/SB 2158 Money Services Businesses o Requires the Office of Financial Regu- Over the last decade, crimes involving money lation to provide a written referral of laundering have risen to astronomical heights. any violations that may be a felony to Drug trafficking, alien smuggling, tax eva- the appropriate criminal investigatory sion, and health care fraud are among the agency. top ranking money laundering offenses plagu- o Requires the Office of Financial Regu- ing the nation. Consequently, this epidemic lation to submit an annual report to has created a problem with multiple facets. As the President of the Senate and federal and state regulatory agencies, includ- Speaker of the House that summarizes ing law enforcement entities collaborate to it regulatory activities, beginning Janu- intensify their focus on money laundering ary 1, 2009 through January 1, crimes, the State of Florida is also strengthen- 2014. ing its efforts. o Allows the Office of Financial This bill packages together several measures Regulation to outsource licensee designed to reduce incidents of money examinations. Increases licensee re- laundering. The legislation incorporates rec- cord retention from 3 to 5 years. Will- ommendations made by the Eighteenth ful failure to comply with a record re- Statewide Grand Jury in its March 2008 request constitutes a third-degree fel- port, as well as recommendations made by the ony. Office of Financial Regulation, law enforcement, and industry representatives that sub- o Expands prohibited acts to include vio- stantially rewrites chapter 560, F.S. There lations under 18 U.S.C., s. 1957, are four parts to chapter 560: Part I General which pertains to engaging in mone- Provisions, Part II Payment Instruments and tary transactions in property derived Funds Transmissions, Part III Check Cashing from specified unlawful activity, pun- and Foreign Currency Exchange, and Part IV ishable as a third-degree felony. Deferred Presentment (Payday Loans). The bill made the following changes in the four o Authorizes the Office of Financial parts: Regulation to seek restitution on behalf of injured consumers. Strengthens in- General Provisions junctive authority, and grants authority to appoint a receiver under certain o Clarifies the general provisions of circumstances. chapter 560, part I, are applicable to

139 2008 LEGISLATIVE REPORT

o Creates additional causes of action re- Money Transmitter Provisions lating to the maintenance and production of records. Enhances penalties to o Requires a money transmitter to be include the denial, suspension, organized as a limited liability com- revocation of a license plus imposi- pany, limited liability partnership, or tion of fines from $1,000 to a corporation to assist in the determi- $10,000 per day for each violation nation of net worth requirements. of the chapter. Requires the Financial o Provides standard policies and proce- Services Commission to adopt disci- dures that are to be included in the plinary rules. contractual terms and conditions be- o Requires licenses to submit an au- tween a licensee and its authorized dited annual financial report. vendor(s).

o Requires licensees and authorized o Clarifies that a licensee is responsible vendors to establish and maintain for the acts of its authorized vendor(s) anti-money laundering programs, and in accordance with their written con- register, if applicable, as a Money tract. Services Business with the Financial o Increases the maximum net worth Crimes Enforcement Network of requirements for a licensee from the U.S. Department of Treasury. $500,000 to $2 million. o Expands civil liability protection to o Reduces net worth requirements per Money Services Businesses, law en- location from $50,000 to $10,000. forcement, prosecutors and regulators Increases bonding requirements by regarding the sharing of information. raising the cap from $500,000 to $2 o Establishes penalties for unlicensed million based on financial condition, money transmitters and payment in- locations and volume of business. strument issuers. Requires licensees to o Revises the requirement regarding the provide notice to the Office of Finan- registration of an authorized vendor cial Regulation of any significant event and notification to the Office of Fi- by registered mail. nancial Regulation within 60 days af- o Clarifies controlling interest of a ter the authorized vendor engages in Money Services Business. business.

o Reduces application and renewal fees o Specifies licensing standards, proce- by 25% and caps license application dures and renewal provisions. fees for branch offices to $20,000 o Requires recordkeeping that monitors when a change in controlling interest vendor relationships as well as the occurs. detection and prevention of money o Defines “net worth” as assets minus li- laundering. abilities determined in accordance with generally accepted accounting principles.

140 CARLTON FIELDS, P.A.

Check Casher Provisions ment instruments that exceed $1,000. o Exempts from licensure, the cashing of payment instruments with an ag- Deferred Presentment Providers Provisions gregate face value of less than $2,000 per person per day that is o Requires deferred presentment provid- incidental to retail sale of goods or ers to be licensed as a Money Services services whose compensation for the Business. service does not exceed 5% of total o Requires declaration of intent be re- income from retail sales during the newed every 24 months. last 60 days. o Requires a deferred presentment Requires a licensee to deposit pay- o provider to notify the Office of Fi- ment instruments into a commercial nancial Regulation within 15 busi- account at a federally insured finan- ness days after ceasing operations cial institution or sell them within 5 or failure to maintain licensure. business days after acceptance. o Authorizes the Office of Financial Prohibits the acceptance or cashing o Regulation to take action that admin- of multiple payment instruments from istratively releases all open and pend- a person who is not the original ing transactions in its database if a payee, except under certain circum- provider fails to provide notice of the stances. cessation of operations or failure to o Requires licensees to submit suspicious maintain licensure. activity reports with the U.S. Depart- o Authorizes the Financial Services ment of Treasury Financial Crimes En- Commission to adopt rules regarding forcement Network, as applicable. the reconciliation of open transac- o Requires each location of a licensee to tions. be equipped with a security camera o Prohibits a deferred presentment pro- system, unless such locations have an vider from accepting more than one installed bulletproof or bullet-resistant check or authorization to initiate partition or enclosure. more than one automated clearing- o Prohibits the assessment of collection house transaction to collect on a de- costs, other than fees for insufficient ferred presentment transaction for a funds, without a court judgment. single deferred presentment transaction. o Requires a licensee to maintain files on corporate and third-party customers o Prohibits the assessment of collection with payment instruments exceeding costs, other than fees for insufficient $1,000. funds, without a court judgment.

o Requires a customer to present ac- Subject to the Governor’s veto powers, the ceptable photo identification and effective date of this bill is January 1, 2009. provide a thumbprint to cash pay-

141 2008 LEGISLATIVE REPORT

CS/SB 2462 proval of the OIR but with notification to the Group Self-insurance Funds OIR of the dividend distribution within 10 days of the distribution. The self-insurance Section 624.4621, F.S. allows two or more fund must also provide certain information employers to pool their liabilities under the and records to the OIR to support the divi- workers’ compensation act and form a group dend payment. The bill restricts the amount self-insurance fund (fund). There are four ac- of dividends distributed to no more than tive authorized group self-insurance funds the total sum of the dividends declared and currently in Florida. All members of a self- recorded on the current audited financial insurance fund must have common interest. statement of the fund. There is no restriction The Financial Services Commission through on dividend amount in current law. In addi- the Office of Insurance Regulation (OIR) has tion, the bill prohibits the distribution of divi- promulgated extensive rules dealing with dends to jeopardize the financial condition self-insurance funds. A basic requirement is of the fund. Current law does not specify that the fund must have, and will continue to this restriction either. The bill maintains cur- have, the financial strength to pay claims. rent law prohibiting funds to require con- Under current law, if a group self-insurance tinued membership in the fund or renewal of fund has surplus monies for a year in excess a workers’ compensation policy with the of the amount necessary to fulfill the obliga- fund in order for the fund member to receive tions of the fund, the surplus monies may be a dividend. refunded to fund members in the form of This bill requires funds established after June dividends. The trustees of the fund determine 1, 2008 to obtain approval by the OIR be- whether payment of a dividend is warranted. fore distributing dividends during the first Before a dividend can be distributed to fund seven years the fund is in operation. The OIR members, the fund must provide financial in- has sixty days to approve the dividend dis- formation about the fund to the OIR and ob- tribution. tain approval for the dividend distribution from the OIR. The OIR has sixty days to Subject to the Governor’s veto powers, the approve the dividend distribution or the effective date of this bill is upon becoming distribution is deemed approved. A fund law. cannot require continued membership in the fund or renewal of a workers’ compensation policy with the fund in order for a fund mem- CS/CS/SB 2860 ber to receive a dividend. Property Insurance This act is titled the “Homeowner’s Bill of This bill amends current law relating to the Rights Act.” process by which group self-insurance funds pay dividends to members. It does not Insurance Capital Build-Up Incentive Program change what type of dividends are payable (s. 215.5595, F.S.) and it maintains authority for the fund trustees to decide whether to pay dividends to the o Revises the requirements for the Pro- fund members. The bill changes current law gram, which provides for surplus note by allowing the trustees of the fund estab- loans to insurers of up to $25 million, lished prior to June 1, 2008 to distribute fund repayable over 20 years at the 10- dividends to fund members without prior ap- year Treasury bond rate, as ap-

142 CARLTON FIELDS, P.A.

proved by the State Board of Admini- “reserved” so that Citizens would stration (SBA). not transfer any funds on January 15, 2009, unless hurricane losses o Insurers must apply by September 1, exceed the specified threshold. 2008 for a surplus note loan equal to

the amount of new capital that an in- o Requires Citizens to transfer $250 surer contributes. Insurers that apply million to the SBA for the Program. after September 1, but before June 1, The appropriation of $250 million 2009, may apply for a surplus note from General Revenue to the SBA for equal to one-half of the amount of the Program is contained in the Con- new capital that the insurer contrib- ference Report for the General Ap- utes. propriations Act.

o The bill revises the minimum premiums Market Conduct Examinations; Required Fil- that the insurer must commit to write, ing of Claims-Handling Procedures by adding a minimum gross premium (s. 624.3161, F.S.) to surplus ratio requirement, as an al- o Authorizes the Office of Insurance ternative to the current net premium to Regulation (OIR) to order an insurer surplus writing ratio requirement. The to file its claims handling practices distinction is that net premiums deduct and procedures as a public record the reinsurance premiums that the in- based on findings of a market conduct surer pays (cedes) to a reinsurer. examination.

o Adds a requirement for the insurer o The OIR findings must be that the in- to write at least 15 percent of its surer had a pattern or practice of will- premiums for new policies for poli- ful violations of an unfair insurance cies taken out of Citizens Property In- trade practice related to claims- surance Corporation (Citizens), for handling causing harm to policyhold- each of the first 3 years of the surplus ers, as prohibited by s. note. 626.9541(1)(i), F.S.

o Requires the SBA to make annual re- o The requirement applies to the claims- ports to the Legislature on the results handling procedures for the line of in- of the program and each insurer’s surance that was the subject of the compliance with the terms of its sur- market conduct exam. The filings must plus note. be held by the OIR for a 36-month period. o Requires the SBA to transfer to Citi- zens on January 15, 2009 uncom- Increased Administrative Fines for Violations mitted or unreserved funds, that were (s. 624.4211, F.S.) funded by transfers from Citizens. However, another provision in the bill Doubles all current fines that may be imposed requires the SBA to do this on July 1, upon an insurer for violation of the Insurance 2009. Because insurers are allowed Code or any rule or order, or any person to apply for a surplus note until June who violates an unfair insurance trade prac- 1, 2009, all of the funds would be tice:

143 2008 LEGISLATIVE REPORT

o $40,000 (rather than $20,000) for a Notice to OIR of Nonrenewal (creating s. willful violation, not to exceed an 624.4305, F.S.) amount equal to $200,000 (rather than $100,000), for all willful viola- Requires an insurer planning to nonrenew tions arising out of the same action. more than 10,000 policies within a 12-month period to notify the OIR 90 days before issu- o $5,000 (rather than $2,500) for a ing any notices of nonrenewal. nonwillful violation, not to exceed an amount of $20,000 (rather than Increased Administrative Fines for Unfair In- $10,000) for all nonwillful violations surance Trade Practices (s. 626.9521, F.S.) arising out of the same action. Doubles the maximum fines that may be im- Requirements for Trade Secret Documents posed by the OIR or the DFS for a violation (creating s. 624.4213, F.S.) by any person of any unfair or deceptive act or practice related to insurance: o Specifies requirements for submission of a document to the OIR or the De- o $40,000 (rather than $20,000) for a partment of Financial Services (DFS) willful violation, not to exceed an in order for a person to claim that the amount equal to $200,000 (rather document is a trade secret. than $100,000), for all willful violations arising out of the same action. o Requires each page or portion to be labeled as a trade secret and be o $5,000 (rather than $2,500) for a separated from non-trade secret ma- nonwillful violation, not to exceed an terial. amount of $20,000 (rather than $10,000) for all non-willful violations o Requires the submitting party to in- arising out of the same action. clude an affidavit certifying certain information as to the trade secret Unfair Insurance Trace Practices; Payment of status of the documents. Undisputed Claim Amount (s. 626.9541, F.S.) o Authorizes the OIR to release a document marked as trade secret to a re- Prohibits an insurer from failing to pay un- questor if the OIR provides the insurer disputed amounts of partial or full benefits with 30-days notice and opportunity owed under first-party property insurance poli- to obtain a court order barring dis- cies within 90 days after determining the closure. amount and agreeing to coverage, unless payment of the undisputed benefits is pre- o Allows the OIR or the DFS to disclose vented by an act of God, prevented by the a trade secret to an employee or offi- impossibility of performance, or due to ac- cer of another governmental agency tions by the insured or claimant that consti- whose use of the trade secret is within tute fraud, lack of cooperation, or intentional the scope of their employment. misrepresentation regarding the claim for which benefits are owed. Violations of this provision would be grounds for a private civil remedy action, due to the cross-

reference in current s. 624.155, F.S.

144 CARLTON FIELDS, P.A.

Administrative Proceedings in Rating Deter- prove within 90 days. Current law prohibits minations (s. 627.0612, F.S.) “use and file” rate increases until December 31, 2008. The bill specifies that an administrative law judge may make the following findings of fact Use of Approved Hurricane Loss Models in an administrative hearing on a property insurance rate filing: Requires that projected hurricane losses must be estimated using a model or method found o Whether factors used in a rate filing or to be accurate or reliable by the Florida Com- applied by the OIR are consistent with mission on Hurricane Loss Projection Method- standard actuarial techniques or prac- ology (as further provided in s. 627.0628, tices or are otherwise based on rea- F.S., as amended in Section 11). sonable actuarial judgment. Profit Factor o Whether a factor for underwriting profit and contingencies is reasonable Deletes the requirement that the OIR approve or excessive. Whether the cost of re- a profit factor in a rate filing for an insurer insurance is reasonable or excessive. that is commensurate with the risk, for that portion of the rate covering hurricane losses It also allows an administrative law judge to for which the insurer has not purchased rein- enter a recommended order that approves, surance. By striking this language, the law modifies or rejects the requested change, as would return to its pre-2006 version, to require supported by the record. the OIR to consider “a reasonable margin for profit and contingencies.” Rating Law for Property and Casualty Insur- ance (s. 627.062, F.S.) Expedited Hearings on Rate Filings

Repeal of Arbitration Provides for an expedited hearing process for rate filings by: Repeals the option for an insurer, for any property and casualty insurance rate filing (or o Requiring Division of Administrative any other filing), to appeal a rate filing dis- Hearings to hold the hearing within approved by the OIR to an arbitration panel 30 days after the request for the in lieu of an administrative hearing. Cur- hearing. rent law prohibits use of arbitration until January 1, 2009. o Requiring the hearing officer to issue the recommended order within 30 Extension of Prohibition on “Use and File” days after the hearing (or after receipt of the transcripts). Extends for one additional year, until De- cember 31, 2009, the current prohibition on o Requiring parties to submit written insurers using the “use and file” option for exceptions within 10 days. property insurance rate increases. This would continue to require that an insurer make a o Requiring the OIR to enter a final order "file and use" filing that prohibits an insurer within 30 days after the entry of the from increasing its rates prior to approval by recommended order. the OIR, unless deemed approved by failure of the OIR to issue a notice of intent to disap-

145 2008 LEGISLATIVE REPORT

Timeframes may be waived upon agreement Hurricane Mitigation Premium Credits Tied to of all parties. Allowing an insurer to request Uniform Home Rating Scale (s. 627.0629, an expedited appellate review of a final the F.S.) OIR rate order and providing legislative intent that the First District Court of Appeal grant o Requires the OIR to develop, by Feb- the insurer’s request. ruary 1, 2011, a proposed method for insurers to establish windstorm mitiga- Required Use of Models Approved by Florida tion premium credits (discounts) that Commission on Hurricane Loss Projection correlate to the numerical rating of a Methodology (s. 627.0628, F.S.) structure pursuant to the uniform home rating scale. o Requires that for purposes of a rate filing insurers must use, and may not o Requires the Financial Services Com- modify or adjust, a model or method mission to adopt rules by October 1, found to be accurate or reliable by 2011, requiring insurers to make rate the Commission on Hurricane Loss filings which revise their credits pursu- Projection Methodology (Commis- ant to this method, consistent with sion). generally accepted actuarial principles and wind loss mitigation studies. o Deletes the current law that in order for an approved model to be admis- o Requires that the rules must allow a sible and relevant, the OIR must have period of at least two years after the access to all of the assumptions and effective date of the revised credits factors used in developing the model. for a property owner to obtain an Requires the Commission to adopt inspection or otherwise qualify for findings related to the private model’s the revised credit, during which time probable maximum loss calculations. the insurer must continue to apply the An insurer must use and may not mod- old mitigation credit. ify or adjust models found by the Commission to be accurate or reliable Citizens Property Insurance Corporation (s. in determining probable maximum 627.351, F.S.) Extension of Rate Freeze loss levels for rate filings made more o Extends the freeze on rate increases in than 60 days after the Commission Citizens from January 1, 2009 to has made such findings. January 1, 2010. o Provides that the processes, standards, o Requires Citizens to make an an- and guidelines of the Commission do nual, actuarially sound rate filing not constitute final agency action or beginning July 15, 2009, to be ef- statements of general applicability that fective no earlier than January 1, implement, interpret, or prescribe law 2010. and are exempt from chapter 120, F.S. Assessments for Citizens Deficits

Revises the required assessments to fund a deficit in each of Citizens’ three accounts

146 CARLTON FIELDS, P.A.

(high risk, personal lines, or commercial for most lines of property and casu- lines) to: alty insurance, or 10 percent of the deficit, whichever is greater. o Requires up to a 15 percent of premium surcharge for 12 months on all o Any remaining deficit is funded by a Citizens’ policies, collected upon issu- bond issue, funded by multi-year ance or renewal; emergency assessments on policyholders of most types of property and o If this is insufficient, a regular assess- casualty insurance, of up to 10 per- ment against insurers which may be cent of premium, or 10 percent of the recouped from their policyholders, of deficit, whichever is greater. up to 6 percent (rather than 10 percent) of premium for most lines of o If a regular assessment is imposed property and casualty insurance or 6 under 3), above, Citizens must make percent of the deficit, whichever is a rate filing to impose a surcharge greater; on Citizens policyholders equal to the average percentage regular assess- Any remaining deficit is funded by a bond ment imposed on insurers (and re- issue, funded by multi-year emergency as- couped from non-Citizens policy- sessments on policyholders on most types of holders). property and casualty insurance, of up to 10 percent of premium for most lines of property o Deletes the definition of "homestead and casualty insurance, or 10 percent of the property" and the requirement for Citi- deficit, whichever is greater. zens to account separately for homestead property because it is no The bill deletes “replaces the current” law on longer relevant to determining as- assessments for funding a deficit in each of sessments or any other purpose. Citizens’ three accounts (high risk, personal lines, or commercial lines), that currently re- o Allows the board of Citizens the discre- quires: tion to apply the amount of any assessment or surcharge which exceeds o An immediate assessment of up to 10 the amount of the deficit to various percent of premium against all Citi- business purposes. zens’ nonhomestead policyholders (as defined); Eligibility for Higher Value Homes

o If this is insufficient, an additional as- Provides that homes with a dwelling re- sessment of up to 10 percent of pre- placement cost of $2 million or more, rather mium against all Citizens’ policyhold- than $1 million or more, are ineligible for ers (including nonhomestead), col- coverage, effective January 1, 2009, with lected upon issuance or renewal of a limited exceptions for current policyholders policy; who obtain rejections from three surplus lines insurers and one authorized insurer. o If this is insufficient, a regular assessment against insurers which may be recouped from their policyholders, of up to 10 percent of premium

147 2008 LEGISLATIVE REPORT

Eligibility for Properties Within 2,500 Feet of Required Disclosure of Windstorm Mitigation the Coast Rating Upon Sale of Home (creating s. 689.262, F.S.) Deletes the current law requiring that new properties constructed after January 1, 2009, o Effective January 1, 2011, requires within 2,500 feet of the coast must meet that a purchaser of residential prop- “Code Plus” requirements in order to be eli- erty located in wind-borne debris re- gible for Citizens. By repealing this provi- gion and insured by any insurer be sion, the law would still require that any new informed of the windstorm mitigation home meet the Florida Building Code. rating of the structure, either in the contract for sale or as a separate Forced Purchase of Bonds document attached to the contract.

Deletes current law requiring insurers to pur- o Authorizes the Financial Services chase bonds that remain unsold for 60 days. Commission to adopt rules, including the form of the disclosure and the re- Access to Claims and Underwriting Files quirements for the inspection or re- Provides that a policyholder who has filed suit port that is required. against Citizens has the right to discover the Transfer of $250 million from Citizens to contents of his claims file to the same extent General Revenue that discovery would be available from a private insurer. Allows Citizens to release confi- o Requires Citizens to transfer $250 dential underwriting and claims file informa- million from its Personal Lines Ac- tion under certain circumstances. count and Commercial Lines Ac- count to the General Revenue Fund Required Disclosure of Windstorm Mitigation on December 15, 2008, unless the Rating Upon Sale of Home (Citizens) estimated year-end surplus in the Per- Effective January 1, 2010, requires disclo- sonal Lines Account and the Commer- sure of a home’s windstorm mitigation rating, cial Lines Account is less than $1 bil- for a home insured by Citizens in the wind- lion. (Citizens currently estimates borne debris region with an insured value of that its year-end surplus in these two $500,000 or more. accounts combined will be about $2.6 billion, if there are no hurri- Increased Notice of Nonrenewal (s. cane losses.) The appropriation of 627.4133, F.S.) $250 million from General Revenue to the SBA for the Insurance Capital Increases the required notice of nonrenewal Build-Up Program is contained in the of a personal or commercial residential in- Conference Report for the General surance policy from 100 days to 180 days if Appropriations Act. the policy has been written for 5 years or more. o Requires the “board” (apparently re- ferring to the SBA), beginning July 1,

2009, to make quarterly transfers to Citizens of interest and principal payments for surplus notes, that were

148 CARLTON FIELDS, P.A.

funded by appropriations from Citi- The bill requires the task force to submit re- zens in FY 2008-09. ports by January 31, 2009 to the Governor, the President of the Senate, and the Speaker Citizens May Not Increase Rates due to of the House of Representatives. Transfer The task force is composed of 11 members, Prohibits Citizens from using any of the as follows: amendments to the Insurance Capital Build-Up Program or any transfer of funds as justification o Two members appointed by the or cause in seeking any rate or assessment Speaker of the House, representing increase. insurance companies meeting certain criteria; Use of Public Hurricane Loss Model o Two members appointed by the Presi- o Allows insurance companies to use dent of the Senate, representing insur- the Public Hurricane Loss Model to ance companies meeting certain cri- determine rate requests in advance teria; of filing, but requires the insurer to pay for use of the public model. o Three members appointed by the Gov- ernor who are not affiliated with an in- o Requires the OIR (the “office” which surance company, at least one of would actually be the Financial Ser- whom must be a consumer advocate; vices Commission that has rulemaking authority for the OIR) to establish by o Two members appointed by the CFO rule, by January 1, 2009, a fee representing insurance agents; schedule for access and use of the model, reasonably calculated to o One member representing Citizens cover only the actual costs. appointed by its board; and

Multi-Policy Discount o The Insurance Commissioner or his designee; Allows insurers to offer a multi-policy discount if the policyholder has wind-only coverage The task force must be funded by Citizens and with Citizens or an insurer that has removed the members do not receive any compensa- a policy from Citizens, provided that the tion, but are entitled to travel and per diem. same insurance agent services both policies. The task force shall employ consultants and Citizens Property Insurance Corporation Mis- staff. sion Review Task Force Annual Report by CFO Creates the Citizens Mission Review Task Requires the CFO to annually report to the Force to analyze and report on changes Governor and Legislative presiding officers needed to return Citizens to its former role regarding the economic impact on Florida as a state-created, noncompetitive residual from a 1-in-100 year hurricane and the pre- market mechanism that provides property mium increase needed to fund such a hurri- insurance coverage to risks that are other- cane. wise entitled but unable to obtain such coverage in the private market.

149 2008 LEGISLATIVE REPORT

Transparency in Rate Regulation (creating s. Florida Hurricane Catastrophe Fund; $10 627.0621, F.S.) Million Coverage Option

For residential property insurance rate fil- Requires the Florida Hurricane Catastrophe ings, the bill requires the OIR to provide in- Fund to offer $10 million of additional cov- formation on an Internet website of: erage to qualified insurers in 2008, as was required in 2006 and 2007. This coverage o All assumptions made by any OIR ac- would again be made available to limited tuary; apportionment companies (having $25 million in surplus or less and writing at least 25 o The overall rate change requested by percent of its premiums in Florida), insurers the insurer; approved to participate in the Insurance o A statement describing any assump- Capital Build-Up Incentive Program, and in- tions that deviate for actuarial stan- surers that purchased the supplemental cov- dards of the Casualty Actuarial Soci- erage in 2007. This coverage would reim- ety; and burse the insurer for up to $10 million in losses, for each of two hurricanes. The cover- o A certification by the office’s actuary age will again be priced at a 50 percent rate that based on the actuary’s knowl- on line (e.g., $5 million premium for $10 edge, that his or her recommenda- million in coverage) with a free reinstatement tions are consistent with accepted ac- for a second storm. The insurer’s retention for tuarial principles. such coverage remains at 30 percent of the company’s surplus. The bill would provide In any administrative or judicial proceeding, that the coverage expires on May 31, 2009. work-product and attorney-client privilege exemptions from public disclosure do not apply Exclusion of Windstorm Coverage (s. to communications with office attorneys or re- 627.712, F.S.) cords prepared by or at the direction of an OIR attorney except when both of the follow- Provides that if a policyholder is eligible for a ing conditions are met: wind-only policy from Citizens, the insurer issuing the non-wind policy is not subject to the o The communication or record reflects requirement to obtain a signed rejection of a mental impression, conclusion, liti- windstorm coverage; but requires notice to gation strategy, or legal theory of the the mortgage holder under certain condi- attorney or the OIR that was prepared tions. exclusively for civil or criminal litigation or adversarial administrative Subject to the Governor’s veto powers, the ef- proceedings; fective date of this bill is July 1, 2008 except as otherwise provided. o The communication occurred or the record was prepared after the initia- tion of a court action, after issuance HB 5049 of a notice of intent to deny a rate, or Mortgage Broker's Licenses after the filing by an insurer of a re- Currently, the Office of Financial Regulation quest for a hearing. administers a written test for the licensing of mortgage brokers. The law provides that the

150 CARLTON FIELDS, P.A.

Office of Financial Regulation may offer an capital that an insurer contributes. electronic version and requires the associ- Insurers that apply after September ated fees to be promulgated by rule. The 1, but before June 1, 2009, may ap- Office has been unsuccessful in its rulemak- ply for a surplus note equal to one- ing attempts to establish the fees for the elec- half of the amount of new capital that tronic version of the examination. the insurer contributes.

The bill: o Revises a minimum writing ratio of premium to surplus an insurer must o Requires the Office of Financial Regu- maintain. lation to make the Mortgage Broker Li- censing Exam available electronically. o Provides that an insurer must also commit to writing at least fifteen per- o Reduces the Mortgage Broker appli- cent of its net or gross written pre- cation fee from $200 to $195. mium for new policies, not including renewal premiums, for policies taken Subject to the Governor’s veto powers, the out of Citizens Property Insurance Cor- effective date of this bill is July 1, 2008. poration, during each of the first 3 years after receiving the surplus note. CS/HB 5057 Insurance Capital Build-Up Incentive o Provides that an insurer must commit to Program maintaining a level of surplus and reinsurance sufficient to cover in excess In 2006, the Insurance Capital Build-Up In- of its 1-in-100 years probable maxi- centive Program (ICBIP) was created to in- mum loss. crease the availability of residential property insurance covering the risk of hurri- o Allows the SBA to charge a late fee canes and mitigating premium increases by for repayments. providing a low-cost source of capital to write additional residential property insur- o Provides that amendments made by ance. The State Board of Administration the act do not affect the terms of sur- (SBA) administers the ICBIP. The SBA plus notes approved prior to January makes available, upon application, loans 1, 2008, but authorizes the SBA and (surplus notes) of up to $25 million, or 20 an insurer to renegotiate such terms percent of the total funds available, to qualify- consistent with such amendments. ing new or existing residential property insur- Citizens Property Insurance Corporation is ers. ICBIP loans are memorialized in surplus directed to transfer $250 million to the Gen- note agreements, repayable over 20 years, eral Revenue Fund by December 15, 2008 if with interest at the 10 year treasury rate on the combined surplus of each of its accounts unpaid principal. Payments for the first three exceeds $1 billion. While this bill makes years are of interest only. available $250 million to the General Reve- The bill: nue Fund for the ICBIP, it does not provide an appropriation of those funds to the program. o Provides that insurers must apply by The appropriation is made in House Bill September 1, 2008 for a surplus note 5001, the proposed General Appropriations loan equal to the amount of new Act for Fiscal Year 2008-2009.

151 2008 LEGISLATIVE REPORT

Beginning July 1, 2009, the SBA is directed architects, or individuals who have at least to quarterly transfer any interest and principle two years prior experience in residential repaid on any surplus notes issued after De- building inspection or residential construction and have received specialized training cember 1, 2008 to Citizens provided that the in hurricane mitigation procedures. surplus notes were funded exclusively by an appropriation to the ICBIP by the Legislature DFS must adopt a quality assurance program for the 2008-2009 fiscal year. that includes a statistically valid number of re- inspections. The bill additionally provides that Citizens may not use any amendments made to s. DFS is allowed to verify that mitigation improvements have been made to all open- 215.5595, Florida Statutes, by this act or ings, including exterior doors and garage any transfer of funds authorized by this act doors, prior to issuing a reimbursement grant as justification or cause in seeking any rate check to the homeowner. or assessment increase. DFS is allowed to contract with third parties for Also see the End of Session Summary for the provision of information technology and CS/CS/SB 2860, Third Engrossed. That bill contractor services for low-income homeown- provides that provisions of SB 2860 shall su- ers, which shall be considered direct program costs, rather than administrative costs for persede and control over any conflicting pro- purposes of administrative cost limitations. visions adopted in HB 5057, to the extent of such conflict, if both bills becomes a law. DFS must develop the No-Interest Loan Pro- gram in the MSFH program by October 1, Subject to the Governor’s veto powers, the 2008 contingent upon the selection of a effective date of this bill is July 1, 2008. qualified vendor and execution of a contract acceptable to the department and the vendor. HB 7103 Mitigation Enhancement DFS is allowed to contract with additional not- for-profit entities or local governments to pro- The bill makes several changes to the My Safe vide inspections and grants to low-income Florida Home (MSFH) program administered homeowners or to provide the services itself. by the Department of Financial Services (DFS) that provides hurricane mitigation in- Uniform mitigation verification forms provide spections and grants for improvements to information to insurers about the construction homes designed to mitigate against hurri- and mitigation of a home. The form allows cane damage. homeowners to access insurance discounts or credits for which they are eligible. The bill To qualify for selection by the DFS as a mandates that property insurers accept as wind certification entity to provide hurri- valid a uniform mitigation verification form cane mitigation inspections, an entity must signed by inspectors employed by an use mitigation inspectors who are certified or licensed building inspectors, general or residential contractors, professional engineers or approved MSFH wind certification entity, Subject to the Governor’s veto powers, the certified or licensed building inspectors, gen- effective date of this bill is July 1, 2008. eral or residential contractors, professional engineers or architects so that Additionally insurers must accept as valid a uniform mitigation verification form certified by DFS.

152

2008 Florida Legislature Post-Session Report

Legal, Criminal Justice & The Judiciary Including legislation relating to courts, criminal justice and law enforcement.

CARLTON FIELDS, P.A.

LEGAL, CRIMINAL JUSTICE &THE JUDICIARY

CS/HB 29 DNA Testing This bill provides that incarcerated persons and persons under community supervision are required to submit blood or other biological specimens for inclusion in the statewide DNA data bank if they have been convicted of any felony offense, certain misdemeanors, or any offense that was found to have been committed for the pur- Justices of the Florida Supreme Court listen to the Gov- pose of benefiting, promoting, or furthering ernor's state-of-the-state message on the House floor the interests of a criminal gang. during the opening session of the 2008 Legislature. (House photo by Mark Foley.) This bill was signed into law on April 29, 2008, by the Governor, Ch. 08-27, L.O.F. In addition the bill: The effective date of this bill is July 1, 2008. o Provides additional registration requirements for felons convicted of CS/CS/HB 43 gang-related offenses and a penalty Criminal Activity for failing to comply with such re- The bill renames chapter 874, F.S., the quirements. “Criminal Gang Prevention Act” and re- o Provides enhanced penalties if it is places the term “criminal street gang” with found that a defendant committed an “criminal gang” throughout the chapter and offense for the purpose of benefiting, other referencing statutes. promoting, or furthering the interests The bill makes it a crime for a person to: of a criminal gang.

o Knowingly initiate, organize, plan, o Prohibits a person from possessing a finance, direct, manage, or super- bulletproof vest while committing or vise criminal gang-related activity; attempting to commit certain offenses, including criminal gang-related of- o Use electronic communication to fenses. further any criminal purpose, to in- timidate or harass other persons, o Increases the penalty for felons who or to advertise his or her presence have been found to have committed in the community for a gang- a gang-related offense to possess a related purpose; firearm.

o Possess or manufacture any unlaw- o Adds criminal gang-related duties to fully issued identification document the Florida Violent Crime and Drug for a gang-related purpose. Control Council and creates the Drug

155 2008 LEGISLATIVE REPORT

Control Strategy and Criminal Gangs counters. Thus, under the provisions of the Committee within the Council. bill, if a person hits a law enforcement officer who is conducting a search and is sub- o Creates the Coordinating Council on sequently charged with “battery on a law Criminal Gang Reduction Strategies enforcement officer,” that person may not within the Department of Legal Af- use a “justifiable use of force” defense. The fairs. bill also precludes a law enforcement officer from using a “justifiable use of force” o Creates community supervision condi- defense if the officer used force during an tions prohibiting certain offenders arrest or during an execution of a legal duty from communicating with criminal that he or she knew was unlawful. gang members, except as authorized for the purpose of aiding in the Subject to the Governor’s veto powers, the investigation of criminal activity. effective date of this bill is July 1, 2008. o Adds items to the list of things a court must consider when determining HB 85 whether to release a defendant on Lewd or Lascivious Molestation bail or other conditions. A person who intentionally touches in a lewd o Amends the penalties for tampering or lascivious manner the breasts, genitals, and harassing witnesses. genital area, or buttocks, or the clothing covering them, of a person less than 16 years of Subject to the Governor’s veto powers, the ef- age, or forces or entices a person under 16 fective date of this bill is October 1, 2008, years of age to so touch the perpetrator, except as otherwise provided. commits the offense of lewd or lascivious molestation. If an offender is 18 years of age or older and the victim is under the age of 12, HB 61 the offense of lewd or lascivious molestation Offenses Against Officers is a life felony. This offense is punishable by Section 776.051, F.S., precludes a person a term of imprisonment for life or by a sen- from using a “justifiable use of force” de- tence of not less than 25 years’ imprisonment fense in a criminal prosecution if the person followed by probation or community control resists an arrest by a law enforcement officer for the remainder of the offender’s natural life. who is known, or reasonably appears, to be The offender must be electronically monitored a law enforcement officer. This statute also during this term of probation or community precludes a law enforcement officer from control. using a “justifiable use of force” defense if the officer used force during an arrest that HB 85 requires the imposition of a life sen- he or she knew was unlawful. The Florida tence for a second or subsequent violation Supreme Court recently held that s. for the offense of lewd or lascivious molesta- 776.051, F.S., only applies to arrest situa- tion where the victim is under the age of 12 tions. and the offender is 18 or older.

This bill expands s. 776.051, F.S., so that Subject to the Governor’s veto powers, the in addition to applying to arrest situations, effective date of this bill is July 1, 2008. it also applies to other police-citizen en-

156 CARLTON FIELDS, P.A.

CS/SB 92 lation resulting in a $2,500 fine and the sus- Persons Injured by Crime/Medical pension of the operator's license for one year. Treatment Violators cited for a third violation commit a 3rd degree felony, receive a mandatory fine This bill creates s. 843.21, F.S., which proof $5,000 and 10-year revocation of the vides that a person who takes custody of or offender's driver's license. exercises control over a person he or she knows to be injured as a result of criminal Subject to the Governor’s veto powers, the activity and deprives that person of medical effective date of this bill is October 1, 2008. care with the intent to avoid, delay, hinder, or obstruct any investigation of the criminal activity contributing to the injury commits: SB 154 Pedestrian Safety/Driver o A third degree felony where the vic- Requirements tim’s medical condition worsens as a This legislation amends sections 316.075 result of the deprivation of medical and 316.130, Florida Statutes, to clarify cer- care. tain requirements related to pedestrians and o A second degree felony where the motor vehicles in intersections. deprivation of medical care results in The bill clarifies the requirement for a driver of the victim’s death. a vehicle stopping at a steady red signal (or Subject to the Governor’s veto powers, the any crosswalk where signage so indicates) to effective date of this bill is October 1, 2008. remain stopped to allow: o A pedestrian already in the cross- CS/HB 137 walk with a permitted signal to cross Operating a Motor Vehicle the roadway, and

This bill provides additional penalties for cer- o A pedestrian stepping into the tain offenses committed by motor vehicle op- crosswalk to cross if upon the half of erators. These penalties include increases in the roadway upon which the vehicle fines and license suspension for motor vehicle is traveling, or if the pedestrian is operators who exceed the speed limit by approaching so closely from the more than 50 miles per hour, or who oper- other half of the road as to be in ate a motorcycle improperly. The bill ex- danger. pands restrictions on the proper operation of a motorcycle to include a requirement that The bill further clarifies that a driver approach- both wheels remain on the ground at all times ing a stop sign-controlled intersection shall, and a requirement that the motorcycle’s li- unless signage indicates otherwise, yield the cense plate be permanently affixed horizon- right-of-way to pedestrians crossing the tally to the ground and incapable of being roadway when a pedestrian is in the cross- flipped up. walk or the pedestrian steps into the crosswalk and is upon the half of the roadway that the A first violation of the motorcycle or speed- vehicle is traveling on, or is approaching so ing prohibitions in the bill results in a non- closely from the other half of the road as to criminal violation punishable by a $1,000 be in danger. fine. A second violation is a non-criminal vio-

157 2008 LEGISLATIVE REPORT

Subject to the Governor’s veto powers, the that the cannabis is intended for sale or dis- effective date of this bill is July 1, 2008. tribution.

The bill provides that in the prosecution of CS/HB 173 an offense involving the manufacture of a Controlled Substances controlled substance, a photograph or video Currently, section 893.1351, F.S. provides recording of the manufacturing equipment that a person may not lease or rent any used in committing the offense may be intro- place, structure, or part thereof, trailer, or duced as competent evidence of the existence other conveyance, with the knowledge that and use of the equipment and is admissible in such place, structure, trailer, or conveyance the prosecution of the offense to the same ex- will be used for the purpose of trafficking tent as if the property were introduced as evi- in a controlled substance or the sale of a dence. The bill provides that after a law controlled substance. The offense is a third enforcement agency documents the manu- degree felony. The bill expands this offense facturing equipment by photography or video to include owning as well as leasing or rent- recording, the manufacturing equipment may ing any place, structure, trailer or convey- be destroyed on site and left in disrepair. ance with the knowledge that it will be used Subject to the Governor’s veto powers, the for the purpose of manufacture of a con- effective date of this bill is July 1, 2008. trolled substance intended for sale or distribution to another. HB 313 The bill provides that a person may not know- Dating Violence ingly be in actual or constructive possession of any place, structure, or part thereof, trailer or Section 741.29, F.S., provides a variety of any conveyance with the knowledge that the requirements for law enforcement officers place, structure, or part thereof, trailer or who are investigating alleged incidents of conveyance will be used for the purpose or domestic violence. Such requirements include trafficking in a controlled substance, the sale providing victims notice of their legal rights of a controlled substance or the manufacture and remedies, providing the victim informa- of a controlled substance intended for sale or tion about local domestic violence centers, distribution to another. This offense will be a and including certain information in police second degree felony. reports. However, these requirements only pertain to incidents of domestic violence, and The bill further provides that a person who is do not pertain to incidents of dating violence. found to be in actual or constructive posses- Also, persons who willfully violate a condi- sion of a place, structure, trailer or convey- tion of pretrial release, when the original ance with the knowledge that the place, arrest was for an act of domestic violence, structure, trailer or conveyance is being used commit a first degree misdemeanor and to manufacture a controlled substance in- must be held in custody until his or her first tended for sale or distribution to another and appearance. No such penalty exists with who knew or should have known that a mi- respect to dating violence. nor is present or resides in the place, structure, trailer or conveyance commits a first de- This bill creates the Barwick-Ruschak Act and gree felony. Proof of the possession of 25 or adds the requirements of s. 741.29, F.S., to more cannabis plants is prima facie evidence the dating violence statute so that they apply

158 CARLTON FIELDS, P.A. to incidents of dating violence as well as do- Subject to the Governor’s veto powers, the mestic violence. The bill also creates a first effective date of this bill is October 1, 2008. degree misdemeanor for the willful violation of a condition of pretrial release when the SB 366 original arrest was for dating violence and Elderly Persons & Disabled requires that the offender be held in custody Adults/Abuse & Neglect until his or her first appearance. Section 825.102(2), F.S. provides that ag- Subject to the Governor’s veto powers, the gravated abuse of an elderly person or dis- effective date of this bill is October 1, 2008. abled adult occurs when a person:

o Commits aggravated battery on an CS/HB 321 elderly person or disabled adult; Murder of Law Enforcement Officers Currently, the Law Enforcement Protection Act o Willfully tortures, maliciously pun- provides penalty enhancements for violent ishes, or willfully and unlawfully offenses committed against law enforcement cages, an elderly person or disabled officers, correctional officers, state attor- adult; or neys, assistant state attorneys, justices, or o Knowingly or willfully abuses an eld- judges. These enhancements provide for erly person or disabled adult and in penalties ranging from 7 years to life in so doing causes great bodily harm, prison dependent upon the offense and other permanent disability, or permanent factors evaluated at sentencing for the crimes disfigurement to the elderly person or that are the subject of this bill. disabled adult. CS/HB 321 creates s. 782.065, F.S., which The bill reclassifies the offense of aggravated provides that notwithstanding the Act and abuse of an elderly or disabled person from other sentencing statutes, a person must be a second degree felony to a first degree fel- sentenced to life imprisonment without eligi- ony. This will have the effect of increasing the bility for release upon a finding by the fact- maximum sentence for the offense from fifteen finder that a person committed one of the fol- years in prison to thirty years in prison. The lowing crimes against a law enforcement offi- bill also requires certified law enforcement cer, part-time law enforcement officer, or personnel to receive training in the identifica- auxiliary law enforcement officer en- tion and investigation of elder abuse and ne- gaged in the lawful performance of a legal glect. duty: Subject to the Governor’s veto powers, the Murder in the first degree; o effective date of this bill is July 1, 2008. o Murder in the second or third degree; CS/HB 435 o Attempted murder in the first or sec- Trust Administration ond degree; or The Trust Code is the portion of the Florida o Attempted felony murder. Statutes that pertains to the administration of trusts. The bill provides that when a grantor appoints trustees for particular purposes, the

159 2008 LEGISLATIVE REPORT trustees excluded from those purposes are ciary relationship between the trustee not liable for any consequence that results and the beneficiary otherwise ends. from compliance with the exercise of those purposes, regardless of the information Any existing applicable statute of repose is available to the excluded trustees, except in extended by 30 years when a beneficiary cases of willful misconduct on the part of shows evidence that a trustee actively con- the directed trustee of which the excluded cealed facts supporting a cause of action. trustee has actual knowledge. The trustees Subject to the Governor’s veto powers, the having the power for a particular purpose effective date of this bill is July 1, 2008. shall be liable to the beneficiaries with respect to the exercise of that power. HB 489 The bill allows a trustee to pay attorney’s Sexual Violence fees and costs from trust assets unless a Current law requires employers to grant vic- beneficiary applies to a court for an order tims of domestic violence leave for certain to prohibit such payment. The bill requires purposes, such as obtaining medical care the trustee to notify interested beneficiaries and protective injunctions. No such provi- in advance of paying attorney’s fees and sions exist for victims of sexual violence. costs from trust assets and allows sanctions against trustees who fail to comply with a The bill extends existing employment pro- court order to reimburse the trust for fees. tection to victims of sexual violence. It requires employers with 50 or more employ- The bill revises time limitations for the bring- ees to permit employees who have been em- ing of legal claims by a beneficiary against a ployed for at least 3 months to request or take trustee for breach of trust. The bill provides up to 3 working days of leave with or without that all claims by a beneficiary against a trus- pay within a 12-month period, if the em- tee are barred upon the later of: ployee is a victim of sexual violence and the o Ten years from the date that the leave is sought to: trust terminates, the trustee resigns Seek an injunction for protection or the fiduciary relationship be- o against sexual violence; tween the trustee and the beneficiary otherwise ends if the benefici- o Obtain medical care or mental health ary had actual knowledge of the exis- counseling; tence of the trust and of their status throughout the 10-year period; or o Obtain services from a victim-services organization; o Twenty years after the date of the act or omission of the trustee that is com- o Make the employee’s home secure or plained of, if the beneficiary had ac- to seek new housing; or tual knowledge of the existence of the trust and of their status throughout the o Seek legal assistance to address is- 20-year period; or sues arising from the act of sexual violence and to attend and prepare o Forty years after the date the trust ter- for court-related proceedings arising minates, the trustee resigns, or the fidu- from the act of sexual violence.

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The bill includes the following limitations on CS/SB 502 an employee seeking leave: Missing Persons/Investigation

o Unless waived by the employer, em- The bill requires law enforcement agencies in ployees must use all other available the state to adopt written policies that specify leave before using this leave; the procedures to be used to investigate reports of missing children and missing adults. o Employees must notify their employer of their planned absence (except in The bill provides that if a person who has cases of imminent danger); been reported as missing has not been located within 90 days after the missing person o Employers may require documenta- report is filed, the law enforcement agency tion of the sexual violence; that accepted the missing person report must attempt to obtain a biological specimen for The bill includes the following limitations on DNA analysis from the missing person or from the employer: appropriate family members of the missing person to enable the agency to use the o Employers must keep information relating to the employee’s leave confi- specimens in conducting searches of DNA dential; databases. The bill also provides that an entry concern- o Employers may not interfere with or re- taliate against the employee’s use of ing a missing child or missing adult may not this leave; be removed from the Florida Crime Informa- tion Center (FCIC) and the National Crime o Employers may discipline or termi- Information Center (NCIC) databases based nate employees for any other reason. solely on the age of the missing child or missing adult. o To enforce the bill, employees are provided with a right to civil suit for Additionally, the bill requires that upon the damages or equitable relief. filing of a credible police report that a person is missing, the law enforcement agency must, The bill attempts to expand an existing public within 2 hours after receiving the missing records exemption covering personal identify- person information, transmit the information ing information submitted by state agency for entry into the FCIC and NCIC databases. employees who are victims of domestic vio- FDLE maintains a Missing Children Infor- lence to include those who are victims of sex- mation Clearinghouse which is a central ual violence as well. Florida’s constitution re- repository of information regarding miss- quires public records exemptions be passed ing children. The bill changes the name of in legislation containing only the exemption this entity to the Missing Endangered Per- by two-thirds vote. HB 1141, which is linked sons Information Clearinghouse. The bill to this bill, has been filed for this purpose. also expands the duties of the clearinghouse which currently only relate to missing chil- Subject to the Governor’s veto powers, the dren to apply to missing persons younger effective date of this bill is July 1, 2008. than 26 years of age and missing persons (of any age) suspected by a law enforcement

161 2008 LEGISLATIVE REPORT agency of being endangered or the victim of person’s motor vehicle contains a legal fire- criminal activity. arm, which is out of sight within his/her vehicle. Neither may an employer terminate Subject to the Governor’s veto powers, the the employment of, or discriminate against, effective date of this bill is July 1, 2008. an employee or expel a customer or invitee when the person is exercising his/her right to CS/HB 503 keep and bear arms or for exercising the right Preservation & Protection of the Right of self-defense as long as the firearm is not to Keep & Bear Arms in Motor exhibited on company property for any Vehicles Act of 2008 reason other than lawful defensive purposes. This legislation prohibits public or private employers from prohibiting a customer, em- The provisions of this act do not apply to: ployee who possesses a valid concealed weapons license, or invitee from possessing a o Property owned or leased by an em- legally owned firearm locked inside, or ployer or the landlord of an employer locked to, a private motor vehicle in a park- upon which activities involving na- ing lot if the person is lawfully in such area. tional defense, aerospace, or home- A public or private employer may not violate land security are conducted; the privacy rights of said persons by verbal or o Property owned or leased by an em- written inquiry regarding the presence of a ployer or the landlord of an employer firearm inside a private motor vehicle in a upon which the primary business in- parking lot or by an actual search of the pri- volves the manufacture, use, storage, vate motor vehicle in the parking lot to ascer- or transportation of combustible or tain the presence of a firearm. The bill pro- explosive materials regulated under hibits the public or private employer from state or federal law or property taking action against the person based upon owned or leased by an employer verbal or written statements and requires any who has obtained a permit required searches of the vehicle to be conducted by under 18 U.S.C. s. 842 to engage in on-duty law enforcement personnel. The the business of importing, manufactur- search must be based upon due process and ing, or dealing in explosive materials comply with constitutional protections. on such property; Employers are prohibited from condition- o Any property where a nuclear- ing employment upon either an em- powered electricity generation facility ployee’s or a prospective employee’s hold- is located. A motor vehicle owned, ing or not holding a license to carry a con- leased, or rented by an employer or cealed weapon or firearm, or any agreement the landlord of an employer; by an employee or a prospective employee that prohibits an employee from keeping a o Any other property owned or leased legal firearm locked inside a motor vehicle by an employer or the landlord of an when the firearm is kept for lawful pur- employer upon which possession of a poses. Additionally, an employer cannot firearm or other legal product is pro- prevent or prohibit an employee, customer, hibited pursuant to any federal law, or invitee from entering the parking lot of the employer’s place of business because the

162 CARLTON FIELDS, P.A.

contract with a federal government o If a person 24 years of age or older entity, or general law of this state; commits video voyeurism against a child younger than 16 years of age. o Any school property as defined and regulated under s. 790.115, F.S.; or The bill provides that the penalties for a violation of this subsection increase to a second o Any state correctional institution regu- degree felony if the offender has a prior con- lated under s. 944.47, F.S. The bill viction for video voyeurism. provides for immunity from liability for employers under certain conditions Subject to the Governor’s veto powers, the and provides for enforcement by the effective date of this bill is July 1, 2008. Attorney General.

The bill was signed into law on April 9, CS/HB 559 2008, by the Governor, Ch. 08-7, L.O.F. It Material Harmful to Minors will take effect July 1, 2008, and shall apply There is currently a three-pronged test to de- to causes of action accruing on or after that termine whether material is harmful to minors. date. Specifically, material is harmful to minors if it

depicts nudity, sexual conduct, or sexual ex- CS/HB 537 citement that: Offense of Voyeurism Currently, s. 810.145, F.S., provides that a o Predominantly appeals to the pruri- person who commits the offense of video vo- ent, shameful, or morbid interest of yeurism commits a first degree misde- minors; meanor. If a person commits the offense of o Is patently offensive to prevailing stan- video voyeurism and has a prior conviction dards in the adult community as a for video voyeurism, the person commits a whole with respect to what is suitable third degree felony. material for minors; and CS/HB 537 amends s. 810.145, F.S., to o Taken as a whole, is without serious create additional video voyeurism offenses. literary, artistic, political, or scientific The bill creates third degree felonies: value for minors. In cases where the offender is 18 years o This bill expands what materials might be de- of age or older and commits video vo- termined harmful to minors by amending para- yeurism against: graph (b) to read, “Is patently offensive to o A child under 16 when the offender prevailing standards in the adult community is responsible for the welfare of the as a whole with respect to what is suitable victim, or material or conduct for minors.”

o A student at a voluntary prekindergar- The bill also provides that ignorance of a mi- ten program or K-12 school, whether nor’s age, a minor’s misrepresentation of his public or private, at which the of- or her age, a bona fide belief of a minor’s fender is employed. age, or a minor’s consent may not be raised as a defense in certain prosecutions relating to using minors in the production of certain

163 2008 LEGISLATIVE REPORT materials and distributing obscene materials Subject to the Governor’s veto powers, the and materials that are harmful to minors. effective date of this bill is October 1, 2008.

The bill also increases the penalties related to the distribution of obscene materials when the CS/HB 663 materials depict a minor engaged in any act Termination of Parental Rights or conduct that is harmful to minors, and cre- The bill substantially amends Chapter 63, Flor- rd ates 3 degree felony offense that prohibits a ida Statutes, relating to the adoption of chil- person from knowingly using a minor in the dren. Provisions include, but are not limited production of certain materials that are harm- to: ful to minors. o Providing for constructive service by Subject to the Governor’s veto powers, the publication for termination of parental effective date of this bill is July 1, 2008. rights proceedings under chapter 63, Florida Statutes; CS/SB 622 o Making substantive changes to the Orders of No Contact with Victims of definitions of “parent”, primarily lives Crimes and works outside Florida” and “un- Currently, courts must issue an order prohibit- married biological father”; ing an offender from having contact with the victim for the duration of the sentence im- o Providing that an unmarried biologi- posed when sentencing offenders who cal father who fails to file a claim of have been convicted of: paternity with the Putative Father Reg- istry (registry) prior to the date a peti- o Sexual battery (s. 794.011, F.S.); or tion for termination of parental rights is filed is also barred from filing a o Lewd and lascivious offenses commit- paternity claim pursuant to chapter ted upon or in the presence of persons 742, Florida Statutes, with some ex- less than 16 (s. 800.04, F.S.). ceptions;

This bill adds to the above list of qualifying o Providing that the consent of an unmar- crimes by requiring courts to issue a no contact ried biological father is required only order when sentencing persons convicted of when he secures a paternity judgment any of the offenses contained in s. or files a paternity affidavit prior to 775.084(1)(b)1.a.-o., F.S. These crimes in- the date that a petition for termination clude arson, robbery, kidnapping, aggra- of parental rights is filed, providing vated child abuse, aggravated abuse of an for the court to enter a default under elderly person or disabled adult, aggravated certain circumstances, and specifying assault with a deadly weapon, murder, man- what actions an unmarried biological slaughter, aggravated manslaughter of an father must take in order to avoid de- elderly person or disabled adult, aggravated fault; manslaughter of a child, unlawful throwing, placing, or discharging of a destructive de- o Providing that written disclosure shall vice or bomb, armed burglary, aggravated be provided to the parent who did battery, and aggravated stalking. not initiate contact with the adoption

164 CARLTON FIELDS, P.A.

entity, adds language to the adoption ship of the proposed guardian advocate to disclosure providing information about service providers of health care, residential or the Florida Putative Father Registry other services to the person with a develop- and what actions an unmarried bio- mental disability. In addition, the notice of logical father must take in order to pro- hearing on the petition to the person with a tect his parental rights, and specifies developmental disability must be delivered to the exact information which must be the next of kin, any surrogate resulting from provided to a prospective adoptive an advance directive or agent under a dura- family prior to the child’s placement ble power of attorney. in the home; The court must appoint an attorney for the o Providing that abandonment as a re- person with a developmental disability sult of incarceration may be found within 3 days of receiving the petition for a when the time period for which a guardian advocate. The court shall initially person has been, as well as is ex- appoint a private attorney selected from the pected to be, incarcerated consti- attorney registry in accordance with s. tutes a significant (rather than sub- 27.40, F.S. Attorneys may not represent stantial) portion of the child’s minor- both the individual with a developmental ity; and disability and the guardian advocate or the person who files the petition. Court ap- o Clarifying that a foreign judgment pointed attorneys must complete 8 hours of terminating a parental relationship is education in guardianship unless waived by recognized in this state and no fur- the court. ther proceedings are required before adoption can be finalized. The court must determine if a valid advance directive or durable power of attorney exist Subject to the Governor’s veto powers, the for the person who is the subject of a peti- effective date of this bill is July 1, 2008. tion to appoint a guardian advocate. The court must also determine the sufficiency of CS/HB 739 these instruments for the person with a devel- Guardian Advocates for Persons with opmental disability. If a guardian advocate Developmental Disabilities is appointed, the court must include in the letter of appointment how the advance direc- CS/HB 739 amends the process for the ap- tive or durable power of attorney are affected pointment of guardian advocates for persons by the guardian advocacy. with developmental disabilities. A person may file a petition with the court for The bill provides that guardian advocates are suggestion of restoration of rights for the per- not required to be represented by counsel son with a developmental disability. The bill unless required by the court or if they are provides the process for considering a sug- delegated rights to oversee property other gestion for restoration of rights. than being the representative payee for government benefits. The bill clarifies that the right of an individual with a developmental disability to consent to The petition to the court for appointment of a or refuse treatment is subject to the powers guardian advocate must detail the relation-

165 2008 LEGISLATIVE REPORT given to the guardian advocate or guard- concurrent sentence for another felony ian. for which the person was not wrongfully convicted. Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. A wrongfully incarcerated person may not submit an application for compensation if the

person is the subject of a claim bill pending CS/CS/CS/SB 756 for claims arising out of the facts in connec- Wrongful Incarceration tion with the claimant's conviction and incar- Compensation ceration; if the person has a lawsuit pending The bill creates the “Victims of Wrongful requesting compensation arising out of the Incarceration Compensation Act” and cre- facts in connection with the claimant's con- ates a program to compensate persons who viction and incarceration. Once an applica- were wrongfully convicted and incarcerated tion is filed, a wrongfully incarcerated person for a felony offense. It provides a process may not pursue recovery under a claim bill whereby the person may petition the original until the final disposition of the application. sentencing court for an order finding the petitioner to be a wrongfully incarcerated person Upon approval of a wrongfully incarcerated who is eligible for compensation upon a final person’s status and eligibility, the person may order vacating his or her sentence based then apply for compensation with the De- upon exonerating evidence. The bill provides partment of Legal Affairs. Upon review and an opportunity for the prosecuting authority approval of the application, the Chief Finan- to either acquiesce to or contest the petition. cial Officer (CFO) is authorized to pay com- If the prosecuting authority contests the peti- pensation in the amount of $50,000 per year tion, there is a hearing before an administra- of imprisonment (adjusted for inflation begin- tive law judge who then reports findings of ning January 1, 2009) up to a $2 million fact and recommendations to the court. The limit; a waiver of tuition and fees up to 120 court makes the determination as to the hours; payment of any fines, penalties, or person’s status as a wrongfully incarcerated court costs imposed and paid by the wrong- person and eligibility for compensation un- fully incarcerated person; and reasonable der the program. A wrongfully incarcerated attorney’s fees and expenses. Additionally, person is not eligible for compensation if: the person is entitled to automatic administrative expunction of his or her criminal re- o Before the person's wrongful conviction cord associated with the wrongful conviction. and incarceration, the person was The CFO must purchase an annuity on behalf convicted of, regardless of adjudica- of the claimant for a term of not less than 10 tion, any felony offense, excluding years. Prior to the purchase of the annuity, any delinquency disposition; the claimant must forever release all governmental entities from all claims arising out of During the person's wrongful incar- o the facts in connection with the wrongful ceration, the person was convicted of, conviction. The bill provides a continuing regardless of adjudication, any felony appropriation from the General revenue offense; or Fund sufficient to pay any the approved o During the person's wrongful incar- payments under this bill. ceration, the person was also serving a

166 CARLTON FIELDS, P.A.

Subject to the Governor’s veto powers, the CS/SB 948 effective date of this bill is July 1, 2008. Concealed Weapons Licenses

CS/SB 948 provides that only persons who are resident United States citizens or perma- CS/HB 773 nent resident aliens of the United States may Judicial Sales obtain a concealed weapons/firearms license The Clerks of the Circuit Court have tradi- (license). Current law requires an applicant tionally conducted foreclosure sales and tax to be a resident of the United States. The deed sales by in-person auction. This bill al- revised residency requirement applies to all lows a clerk of court the option to conduct license applications pending on the date the foreclosure sales and tax deed sales through act becomes effective as well as to all li- electronic means, such as over the Internet. censes renewed after the effective date.

Subject to the Governor’s veto powers, the Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. effective date of this bill is upon becoming law.

CS/HB 799 Theft of Copper or Other Nonferrous CS/HB 1037 Metals Escrow Agents The bill creates s. 812.145, F.S., which pro- The bill provides that an unauthorized person vides that a person who knowingly and in- may not, in connection with the purchase and tentionally takes copper or other nonferrous sale of real property: metals from a utility or communications ser- o Transact business using the term “es- vices provider commits a first degree felony if crow” or words of similar import, or the theft: o Circulate, simulate, or advertise that o Damages the facilities of a utility or the business is regulated as an es- communications services provider; crow agent. o Interrupts or interferes with utility ser- These restrictions in the bill do not apply to: vice or communications services; or o Certain financial institutions Attor- o Interferes with the ability of a utility ser- neys. vice or communications services provider to provide service. o Persons licensed pursuant to chapter 475, Real Estate Brokers, Sales As- A first degree felony is punishable by up to sociates, Schools, and Appraisers. 30 years in prison and a $10,000 fine. o Title insurance agents licensed pursu- Subject to the Governor’s veto powers, the ant to s. 626.8417, a title insurance effective date of this bill is October 1, 2008. agency that is licensed pursuant to s. 626.8418, or a title insurer who is authorized to transact business in this state pursuant to s. 624.401.

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o Any person aggrieved by a violation counterfeited goods that are know- of the bill provisions may bring an ac- ingly sold, manufactured, distributed, tion in a court of competent jurisdic- or transported; tion to obtain a declaratory judgment. In any such action brought, a o Increases the penalty for counterfeit- person may recover actual damages, ing offenses if a person, during the plus attorney’s fees and court costs. commission of the offense or as a re- Further, a willful violation by any per- sult of the offense, knowingly, or by son is a misdemeanor of the first de- culpable negligence, causes bodily in- gree. jury, serious bodily injury, or death; and Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. o Increases the penalty for repeat offenders of counterfeiting.

CS/HB 1417 Subject to the Governor’s veto powers, the Counterfeit Goods effective date of this bill is October 1, 2008. In 2005, the federal government passed the “Stop Counterfeiting in Manufactured Goods CS/CS/CS/SB 1442 Act,” which strengthened federal laws against Exploited Children counterfeit labels and packaging and strength- This bill provides a civil cause of action for ened penalties for counterfeiters. In response, victims of certain sexual abuse crimes if: the United States Chamber of Commerce prepared a model state anticounterfeiting statute o Any portion of such abuse was used which targets those who manufacture, dis- in the production of images or movies tribute, or possess counterfeit goods with the of child pornography; and intent to sell, as well as those who counterfeit goods which cause bodily injury. o The victim suffers personal or psychological injury as a result of the produc- This bill re-organizes the provisions of ss. tion, promotion, or possession of such 831.03 and 831.05, F.S., relating to coun- images or movies. terfeiting, and creates new sections of statutes relating to counterfeiting based upon the The bill provides a statute of limitations for above-described model legislation. Specifi- such actions and specifies that victims who cally, the bill: are awarded damages are deemed to have sustained damages of no less than o Provides definitions; Provides that $150,000. The Office of the Attorney Gen- proof of a person possessing more eral, upon the request of the victim, is desig- than 25 pieces of property that nated to pursue cases on behalf of any vic- bear a counterfeit mark gives rise to tim. an inference that such property is being possessed with the intent to offer The bill also expands the definition of the it for sale or distribution; terms “crime” and “victim” for victim compensation purposes and makes the following o Provides a tiered penalty system based persons eligible to receive compensation for on the quantity or total retail value of

168 CARLTON FIELDS, P.A. counseling and other mental health services as tenants by the entireties, shall be pre- to treat psychological injury: sumed to be a marital asset which presumption can be overcome by showing that the o A child less than 18 years of age property is non-marital. The bill provides the who suffers psychiatric or psychologi- burden of proof to overcome the gift pre- cal injury as a direct result of online sumption shall be by clear and convincing sexual exploitation and who does not evidence. The bill abolishes all special eq- otherwise sustain personal injury or uity claims and replaces them with claims death; or for unequal distribution of marital property or as a claim of enhancement in value or appre- o Any person who, while under the age ciation of nonmarital property. of 18, was depicted in any image or movie, regardless of length, of child Subject to the Governor’s veto powers, the pornography and who has been iden- effective date of this bill is July 1, 2008. tified as a victim of child pornography, who suffers psychiatric or psychological injury as a direct result of CS/HB 1509 the crime, and who does not other- Community Service for Infractions of wise sustain a personal injury or Noncriminal Traffic Offenses death. CS/HB 1509 amends s. 318.18(8), Florida Statutes, relating to payment of non-criminal The bill requires law enforcement officers traffic penalties by performing community who submit for prosecution a case that in- service. The bill provides that a person de- volves the production, promotion, or posses- siring to perform community service in lieu sion of child pornography to provide certain of payment must prove a demonstrable information to prosecutors. The bill also re- financial hardship. CS/SB 1509 provides quires prosecutors, in every filed case that additional detail to clerks of court by defining involves an identified victim of child pornog- “community service” as uncompensated labor raphy, to enter certain information into the Vic- for a community service agency. A “commu- tims in Child Pornography Tracking Repeat nity service agency” is defined as a non-profit Exploitation database that will be developed corporation, a community organization, a and maintained by the Office of the Attorney charitable organization, a public officer, the General. state or any political subdivision of the state, Subject to the Governor’s veto powers, the or any other body the purpose of which is to effective date of this bill is October 1, 2008 improve the quality of life or social welfare of the community and which agrees to accept community service from persons unable to CS/SB 1474 pay civil penalties for noncriminal traffic in- Dissolution of Marriage fractions. The bill allows a court to order an interim The bill provides that clerks shall value com- partial distribution of marital assets and munity service at minimum-wage unless cer- liabilities if good cause is shown. The bill tain conditions justify “prevailing wage provides that all real property held by the rates,” which are higher rates applicable to parties as tenants by the entireties and all specialized trades and professions. personal property titled jointly by the parties

169 2008 LEGISLATIVE REPORT

Subject to the Governor’s veto powers, the o Adding additional court fees for filing effective date of this bill is July 1, 2008. counterclaims, cross claims and third party complaints; and

CS/SB 1790 o Increasing the fines for DUI and BUI. State Judicial System Subject to the Governor’s veto powers, the The bill increases certain service charges, court effective date of this bill is July 1, 2008. costs, and fees. The bill reassigns the funding responsibility for court juror payments from the State Court System to the clerk of the CS/SB 1988 courts. Drivers' Licenses/Suspended, Revoked, or Canceled Other principal changes in the bill include: The bill subjects a person convicted of know- o Providing that the public defender ingly driving while his or her license is sus- shall provide appellate representation pended, revoked, or cancelled for underly- in criminal cases handled at trial by ing violations as enumerated in the bill, to the criminal conflict and civil regional a second degree misdemeanor penalty for counsel, unless the case presents a the first conviction and a first degree misde- conflict for the public defender, in meanor penalty for the second or subsequent which case the regional counsel or conviction. private court-appointed counsel shall handle the appeal; The underlying enumerated violations (allowing a driver to be subject to a first degree o Requiring the clerks to report to the misdemeanor penalty rather than the third Office of the State Court Administra- degree felony penalty for a third or subse- tor on a quarterly basis on moneys quent conviction) include: collected and remitted to the Mediation and Arbitration Trust o Failing to pay child support under s. Fund; 322.245 or s. 61.13016, F.S.;

o Requiring a person who seeks a de- o Failing to pay any other financial ob- termination of indigent status in order ligation under s. 322.245, F.S., to receive court-appointed counsel in (other than those specified criminal a dependency proceeding to pay a offenses in s. 322.245(1), F.S).; $50 application fee; o Failing to comply with a required civil o Creating a $10 administrative fee to penalty (paying traffic tickets and be paid for all noncriminal moving and fees) under s. 318.15, F.S.; nonmoving traffic violations under Ch. o Failing to maintain required vehicular 316, F.S.; financial responsibility under Ch. o Mandating costs of prosecution in all 324, F.S.; criminal and violation-of-probation or o Failing to comply with attendance or community-control case convictions; other requirements for minors under s. 322.091, F.S.; or

170 CARLTON FIELDS, P.A.

o Having been designated a habitual o Has actual knowledge or reasonably traffic offender under s. 322.264(1)(d), should have known of a dangerous F.S., (driving with a suspended license condition; or three times in five years) as a result of license suspensions for any of the un- o Intentionally injures the participant. derlying violations listed above. The limitation on liability provided by the bill This newly created first degree misdemeanor is in addition to any other limitation of legal penalty will only be available to drivers who liability that might otherwise be provided by do not have a prior forcible felony convic- law. The bill provides that the provisions of tion. the newly created section will expire Octo- ber 2, 2018, unless reviewed and reenacted The bill requires the Department of Highway by the Legislature. Safety and Motor Vehicles, in consultation with OPPAGA, to study the effectiveness of Subject to the Governor’s veto powers, the suspending a person’s driver’s license for the effective date of this bill is October 1, 2008. underlying violations listed above and submit a report to the Governor and Legislature by CS/CS/SB 2532 January 2, 2009. Child Custody and Support Subject to the Governor’s veto powers, the The bill makes changes to a significant number effective date of this bill is July 1, 2008. of sections of the Florida Statues, related to custody, visitation, and child support, includ-

ing, but not limited to, the following: CS/SB 2438 Spaceflight/Informed Consent o Redesignates chapter 61, Florida The bill provides that a spaceflight entity is not Statutes, as “Dissolution of Marriage; liable for injury to or death of a spaceflight Support; Time-Sharing; participant resulting from the inherent risks of o Deletes definitions of the terms “custo- spaceflight activities, so long as the required dial parent” or “primary residential warning is given to and signed by the par- parent” and “noncustodial parent” ticipant. The bill provides that a participant and creates a definition for the or participant's representative may not re- terms “parenting plan”, “parenting cover from a spaceflight entity for the loss, plan recommendation” and “time- damage, or death of the participant resulting sharing schedule; exclusively from any of the inherent risks of spaceflight activities. The immunity provided o Amends all applicable sections of by the bill does not apply if the spaceflight chapter 61, Florida Statutes, to delete entity: the terms “custodial parent” and “noncustodial parent”; and replace Commits gross negligence or willful or o references to either term with the term wanton disregard for the safety of the “parent” or “obligee” or “obligor”. It participant; also replaces existing references to “custody order” or “visitation order” with “parenting plan” and/or “time- sharing plan”;

171 2008 LEGISLATIVE REPORT

o Repeals s. 61.121, Florida Statutes, and provides for an annual study by relating to rotating custody; and the Office of Program Policy Analysis and Government Accountability to o Amends sections of chapters 409, assess the effectiveness and cost- 414, 445, 741, 742, 753, and 827, efficiency pretrial release programs. Florida Statutes, to conform to changes in terminology in chapter Subject to the Governor’s veto powers, the 61, Florida Statutes. effective date of this bill is July 1, 2008.

Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008. HB 7073 Child Support Enforcement

CS/CS/SB 2676 The bill makes changes related to the child Citizens' Right-to-Know Act/Pretrial support enforcement program, including pro- Release viding that past due support payments are applied first to the principal amount due and The bill provides for reporting requirements then to interest that accrued on the past due for pretrial release programs and also amount. The bill also amends a number of amends several sections related to the post- provisions relating to the suspension of li- ing of bail. The bill makes the following censes in order to conform with another speci- changes: fied section of the statutes. The bill provides that if a putative father is incarcerated, the o requires pretrial release programs to correctional facility shall assist the putative maintain a register with the clerk of father in complying with an administrative the court which provides detailed in- order for genetic testing and repeals a du- formation about defendants inter- plicative provision relating to administrative viewed and released through the pro- orders for genetic testing. The bill also re- gram; requires pretrial release pro- quires that any payments made to the State grams to make annual reports about Disbursement Unit which are owed to the ob- defendants released through the pro- ligee or any payments owed to an obligee in gram; a Title IV-D case shall be disbursed electroni- o provides any monetary component of cally. pretrial release may be met by a Subject to the Governor’s veto powers, the surety bond; effective date of this bill is upon becoming a o provides differing monetary amounts law. may not be set for cash bonds, surety bonds, or other forms of pretrial re- HB 7113 lease; Department of Law Enforcement o requires cash bond forms to display The bill makes several changes to the policies a notice that any and all part of a and procedures of the Florida Department of cash bond may be subject to with- Law Enforcement (FDLE) as follows: holding by the clerk of the court to pay court costs, fees, and fines, re- o Allows FDLE to maintain electronic gardless of who posts the cash bond; copies of all fingerprints submitted

172 CARLTON FIELDS, P.A.

for the purpose of criminal back- o Provides judges access to sealed ground checks; criminal records;

o Allows FDLE to use the electronic cop- o Adds the Secretary of the Department ies in the statewide fingerprint system; of Children and Family Services to the membership of the Criminal and Juve- o Specifically provides that FDLE may nile Justice Information Systems accept fingerprint submissions elec- Council; tronically for criminal background checks; o Amends the duties of the Criminal and Juvenile Justice Information Sys- o Eliminates the requirement that FDLE tems Council to reflect advances in receive a duplicate copy of a waiver technology; and granting permission to release a person’s criminal history record; o Creates a “citizen support organization” to raise funds and organize o Allows a request for an administrative events for Florida Missing Children’s expunction to be made by the arrest- Day. ing law enforcement agency, as well as an agency that issues a warrant Subject to the Governor’s veto powers, the that is the basis for an arrest; effective date of this bill is July 1, 2008.

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Public Records ■ New Exemptions ■ Open Government Sunset Reviews (OSGR)

CARLTON FIELDS, P.A.

PUBLIC RECORDS CS/CS/SB 766 Public Records Exemption/Judicial and Administrative Officials Current law provides a public record exemption for identification and location information of certain agency personnel. The following information is exempt from public records requirements:

o Home addresses and telephone numbers of the personnel;

o Home addresses, telephone numbers, House Sergeant at Arms Earnest Sumner, left, and and places of employment of their Senate Sergeant at Arms Donald Severance drop the spouses and children; and traditional Sine Die handkerchiefs signaling the end of the session. (House photo by Meredith Hill.) o Names and locations of schools and

day care facilities attended by their CS/HB 863 children. Public Records Exemption/Direct- The bill makes the exemption applicable to Support Organization/DVA This bill general magistrates, special magistrates, makes confidential, and exempt from s. judges of compensation claims, administra- 119.07(1), F.S., and Article I, s. 24(a) of tive law judges of the Division of Administra- the Florida Constitution, the identity of a tive Hearings, and child support enforcement donor or prospective donor to the direct hearing officers. The exemption, however, support organization established by the De- only applies if such magistrates, judges, or partment of Veterans’ Affairs, provided such hearing officers provide a written statement donor desires to remain anonymous. The bill that they have made reasonable efforts to further provides an exemption for portions protect such information from access via of meetings of the direct-support organiza- other means available to the public. tion during which the identity of donors or prospective donors is discussed. The bill provides for future legislative review and repeal of the exemption and provides a Subject to the Governor’s veto powers, the public necessity statement. effective date of this bill is July 1, 2008. Subject to the Governor’s veto powers, the effective date of this bill is July 1, 2008. CS/SB 1042 OGSR/Putative Father Registry/Department of Health Current law provides a public record exemption for all information contained in the Florida Putative Father Registry. It authorizes release of the information to an adoption entity, the regis-

177 2008 LEGISLATIVE REPORT trant unmarried biological father, and the public records exemptions as those allowed court. The bill reenacts the public record ex- for victims of domestic violence. The public emption, which will repeal on October 2, records exemptions being extended to victims 2008, if this bill does not become law. It au- of sexual violence include: thorizes additional access to information in the registry by the birth mother, upon receipt of a o Written requests for leave submitted notarized request for a copy of any entry in by an agency employee who is a vic- which she is identified as the birth mother. tim of sexual violence and any agency time sheet reflecting such re- Subject to the Governor’s veto powers, the quests; and effective date of this bill is October 1, 2008. o Personal identifying information contained in records documenting SB 1046 an act of sexual violence submitted to OGSR/Foster Parents/DCFS an agency by an agency employee Current law provides a public record ex- in order to obtain leave. emption for certain personal information of This bill provides for future review and repeal licensed foster parents and foster parent ap- of the exemption and provides a statement of plicants, and their spouses, minor children, public necessity. This public record exemp- and other adult household members. Their tion will not have a fiscal impact to the state. home, business, work, child care, or school addresses and telephone numbers; social The bill required a two-thirds vote of the security numbers; birth dates; medical re- members present and voting for passage. cords; home floor plans; and photographs are exempt from public records require- Subject to the Governor’s veto powers, the ments. effective date of this bill is on the same date that House Bill 489 or similar legislation takes The bill reenacts the public record exemption, effect, if such legislation is adopted in the which will repeal on October 2, 2008, if this same legislative session, or an extension bill does not become law. It repeals a dupli- thereof, and becomes law. cative exemption for social security numbers.

Subject to the Governor’s veto powers, the CS/SB 1618 effective date of this bill is July 1, 2008. OGSR/Victims of Child Abuse or Sex Crimes

CS/HB 1141 Current law provides a public record ex- Public Records Exemption/Sexual emption for any criminal intelligence infor- Violence Victim mation or criminal investigative information that is a photograph, videotape, or image of This bill is linked to HB 489, which requires the any part of the body of the victim of certain submission of documentation in order for an sexual offenses. The bill reenacts and ex- employee to be guaranteed leave related to pands the exemption to include victims of incidents of sexual violence. crimes such as sex trafficking and child por- This bill extends to victims of sexual violence nography, and authorizes release of the in- seeking to obtain leave the same existing formation under limited circumstances. The

178 CARLTON FIELDS, P.A. bill clarifies that the confidential and exempt Subject to the Governor’s veto powers, the status of the criminal intelligence informa- effective date of this bill is October 1, 2008. tion and the criminal investigative information must be maintained in court records and CS/SB 2610 court proceedings. Finally, it provides for fu- Public Records Exemption/Organ & ture legislative review and repeal of the ex- Tissue Donor Registry emption and provides a public necessity statement. This bill is the public records exemption companion to SB 2630, which creates the Subject to the Governor’s veto powers, the organ and tissue donation registry. The bill effective date of this bill is October 1, 2008. makes confidential and exempt, from s. 119.07(1), F.S., and Article I, s. 24(a) of the CS/SB 1630 Florida Constitution, the identity of a donor OGSR/Department of Agriculture & listed in the donor registry. The bill further Consumer Services provides that such donor information may be disclosed to organ, tissue, and eye procure- Current law provides a public record exemp- ment organizations that have been certi- tion for information deemed confidential un- fied by the Agency for Health Care Ad- der federal law and that is provided to the ministration for the purpose of ascertaining Department of Agriculture and Consumer or effectuating a gift, as well as persons en- Services during a joint food safety or food- gaged in bona fide research if the person borne illness investigation or for regulatory agrees to comply with four requirements review. The bill reenacts the public record specified in the bill. exemption, which will repeal on October 2, 2008, if this bill does not become law. The bill specifies this exemption is subject to the Open Government and Sunset Review Act Subject to the Governor’s veto powers, the in accordance with s. 119.15, F.S., and pro- effective date of this bill is October 1, 2008. vides that such exemption will stand repealed on October 2, 2013, unless reviewed and CS/SB 2224 saved from repeal through reenactment by OGSR/Paratransit Services the Legislature. Current law provides a public record ex- The bill provides a statement of public neces- emption for all personal identifying infor- sity for the exemption. mation contained in records held by local governmental entities and that is used for Subject to the Governor’s veto powers, the ef- determining eligibility for paratransit ser- fective date of this bill is contingent upon the vices. The bill reenacts and expands the Governor’s approval of CS/SB 2630, and exemption making it applicable to any will be effective on July 1, 2008 if such is agency that is the custodian of such informa- approved. tion in lieu of local governmental entities only. It provides for future legislative review and repeal of the exemption and provides a public necessity statement.

179 2008 LEGISLATIVE REPORT

HB 7033 HB 7053 Public Records Exemption/Complaint OGSR/Florida Kidcare Program of Discrimination Current law provides a public record ex- Current law provides a public record exemp- emption for information identifying a Kid- tion for all complaints and other records in care program applicant (parent or legal the custody of an executive branch state guardian) or enrollee (child) and provides for agency, which relate to a complaint of dis- exceptions to the exemption. A violation of crimination in connection with hiring prac- the exemption is a misdemeanor of the sec- tices. The bill expands the exemption by ond degree. making it applicable to all agencies. The exemption expires when a probable cause The bill reenacts the public record exemp- finding is made, the investigation becomes tion, which will repeal on October 2, inactive, or the complaint is made part of 2008, if this bill does not become law. It the official record of a hearing or court pro- removes unnecessary language and repeals a ceeding. This bill provides for future legisla- duplicative public record exemption specific tive review and repeal of the exemption and to the Florida Healthy Kids Corporation. provides a public necessity statement. Subject to the Governor’s veto powers, the Subject to the Governor’s veto powers, the effective date of this bill is October 1, 2008. effective date of this bill is upon becoming a law.

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INDEX

HOUSE BILLS CS/HB 29 ...... 155 CS/HB 909 ...... 21 HB 35 ...... 43 CS/HB 937 ...... 134 CS/CS/HB 43 ...... 155 CS/HB 951...... 9 HB 61 ...... 156 HB 961 ...... 75 HB 85 ...... 156 CS/HB 987 ...... 46 CS/CS/HB 105...... 3 HB 989 ...... 116 CS/HB 137 ...... 157 CS/HB 995...... 10 CS/HB 165 ...... 43 CS/HB 1037 ...... 167 CS/HB 173 ...... 158 CS/HB 1059...... 21 HB 313 ...... 158 CS/HB 1105 ...... 12 CS/HB 321 ...... 159 CS/HB 1141 ...... 178 CS/CS/HB 343...... 131 CS/CS/HB 1167...... 13 CS/HB 419...... 4 CS/HB 1203 ...... 31 CS/HB 435 ...... 159 CS/HB 1313 ...... 32 HB 461 ...... 114 CS/HB 1363 ...... 119 HB 489 ...... 160 CS/HB 1373...... 22 CS/HB 503 ...... 162 CS/HB 1417 ...... 168 CS/HB 527 ...... 61 CS/HB 1427 ...... 79 CS/HB 535...... 114 CS/HB 1429 ...... 119 CS/HB 537 ...... 163 HB 1489 ...... 14 CS/HB 547 ...... 70 CS/HB 1509 ...... 169 CS/HB 559 ...... 163 HB 5001...... 52 CS/CS/HB 601...... 5 HB 5003...... 53 CS/HB 607...... 115 HB 5045 ...... 125 CS/HB 623...... 29 HB 5047...... 18 CS/HB 643 ...... 131 HB 5049 ...... 150 CS/CS/CS/HB 653...... 6 CS/HB 5057 ...... 151 CS/HB 663 ...... 164 HB 5065...... 24 HB 669 ...... 30 HB 5067 ...... 86 CS/CS/HB 679...... 7 HB 5083 ...... 37 CS/HB 687...... 44 HB 7019 ...... 88 CS/HB 697 ...... 91 HB 7033 ...... 180 CS/HB 727 ...... 93 HB 7049 ...... 125 CS/HB 739 ...... 165 HB 7053 ...... 180 CS/HB 743 ...... 134 CS/HB 7059...... 87 CS/HB 773 ...... 167 HB 7067 ...... 38 HB 797...... 8 HB 7073 ...... 172 CS/HB 799 ...... 167 CS/HB 7083 ...... 125 CS/HB 803 ...... 116 HB 7103 ...... 152 CS/HB 853 ...... 46 CS/HB 7105...... 39 CS/HB 863 ...... 177 HB 7109 ...... 56

183 2008 LEGISLATIVE REPORT

HB 7113 ...... 172 CS/CS/SB 1276 ...... 32 HB 7135 ...... 94 CS/CS/SB 1286 ...... 77 CS/CS/SB 1294 ...... 77 SENATE BILLS CS/CS/SB 1302 ...... 78 CS/CS/SB 1310 ...... 14 CS/SB 92 ...... 157 CS/CS/SB 1360 ...... 118 SB 154 ...... 157 CS/SB 1378 ...... 47 SB 186 ...... 27 CS/CS/CS/SB 1442 ...... 168 SB 230...... 44 CS/SB 1474 ...... 169 CS/CS/SB 242 ...... 27 CS/CS/SB 1488 ...... 120 CS/SB 276 ...... 4 CS/SB 1502 ...... 48 SB 366 ...... 159 CS/SB 1552 ...... 80 CS/CS/SB 370 ...... 113 SB 1558 ...... 48 CS/CS/SB 428 ...... 27 CS/SB 1588 ...... 22 CS/SB 464 ...... 61 CS/SB 1618 ...... 178 CS/SB 502 ...... 161 CS/SB 1630 ...... 179 CS/CS/SB 526 ...... 28 CS/CS/SB 1648 ...... 120 CS/CS/SB 542 ...... 62 CS/SB 1694 ...... 48 CS/CS/SB 564 ...... 114 CS/CS/SB 1702 ...... 49 CS/CS/SB 610 ...... 28 CS/SB 1706 ...... 81 CS/SB 622 ...... 164 CS/CS/CS/SB 1712 ...... 33 CS/SB 630 ...... 44 CS/CS/SB 1716 ...... 34 SB 642 ...... 29 CS/SB 1774 ...... 35 CS/SB 648 ...... 133 CS/SB 1790 ...... 170 CS/CS/SB 682 ...... 71 CS/SB 1892 ...... 49 CS/CS/SB 686 ...... 116 CS/CS/SB 1906 ...... 35 CS/CS/SB 696 ...... 30 CS/SB 1908 ...... 36 CS/CS/SB 704 ...... 45 SB 1986 ...... 14 CS/CS/CS/SB 756 ...... 166 CS/SB 1988 ...... 170 CS/CS/SB 766 ...... 177 CS/CS/CS/SB 1992 ...... 81 CS/SB 794 ...... 93 CS/CS/SB 2012 ...... 136 CS/CS/SB 854 ...... 9 CS/CS/CS/SB 2016 ...... 15 CS/CS/SB 866 ...... 46 CS/SB 2052...... 85 SB 874 ...... 134 CS/CS/SB 2082 ...... 137 CS/SB 948 ...... 167 CS/CS/CS/SB 2158 ...... 139 CS/SB 966 ...... 135 CS/SB 2222 ...... 50 CS/CS/CS/SB 996 ...... 11 CS/SB 2224 ...... 179 CS/CS/SB 1012 ...... 117 CS/SB 2310 ...... 51 CS/SB 1026 ...... 47 CS/SB 2326 ...... 121 CS/SB 1042 ...... 177 CS/SB 2438 ...... 171 SB 1046 ...... 178 CS/SB 2462 ...... 142 CS/SB 1070 ...... 47 CS/CS/SB 2532 ...... 171 CS/CS/SB 1076 ...... 12 CS/CS/SB 2534 ...... 122 SB 1092 ...... 118 CS/SB 2582 ...... 16 CS/CS/SB 1094 ...... 75 CS/CS/SB 2598 ...... 17

184 CARLTON FIELDS, P.A.

CS/SB 2610 ...... 179 CS/CS/CS/SB 2654 ...... 124 CS/CS/SB 2676 ...... 172 CS/CS/SB 2760 ...... 17 SB 2820 ...... 52 CS/CS/SB 2860 ...... 142

185