2007 Florida Legislature Post-Session Report

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

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HOW TO USE THIS REPORT

This is a summary of significant legislation that passed in 2007 Special Session A (January) and the 2007 Regular Session (March-May) of the Florida Legislature. This report does not include legislation considered during 2007 Special Session B (June).

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 and The Florida Memory Project.

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 Michael H. Olenick [email protected] Attorney Tallahassee − 850.513.3607 Tami McQueen [email protected] Legislative Administrative Assistant Tallahassee − 850.425.3383 [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 are highly experienced in dealing with all levels of government on behalf of our clients. We have a thorough understanding of government’s inner Legislative Lobbying, workings -- and an extensive network of Cabinet & State Agencies Representation personal and professional relationships -- We identify, track, analyze, and summarize within government to address effectively a legislative and Cabinet proposals and wide variety of legislative, administrative, political and policy considerations in both procedural, and political issues. the legislative and executive branches, We offer our clients access to a assessing their impact on client operations. comprehensive and skilled team for strategic We also assist in drafting legislation and planning and counseling, governmental amendments to legislation, help pass or affairs, lobbying, regulatory and defeat legislative proposals, and use our administrative law, growth management and extensive political relationships to advocate land use, education and elections law. a client's position efficiently. We counsel Business Planning clients regarding political contributions and for Government Services the regulatory reporting requirements of We help our clients develop new strategies political contributions. and positions. We can assist in investigating We represent our clients before state opportunities, or planning and advocating agencies and the Cabinet on a wide range legislative, permitting or regulatory solutions. of issues such as rule and policy making, We consult on all possible approaches to permitting, professional and business accomplishing a client’s goals in connection licensure. with governmental privatization, Government Contracts Consulting public/private partnerships, appropriations, We provide guidance and technical financing, and economic development assistance in responding to government programs. procurement documents, or when 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 Tallahassee 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. Michael H. Olenick^ Tallahassee Local Government Representation Scott P. Pence Tampa 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

Beth A. Vecchioli* Tallahassee Joseph Verdone* West Palm Beach Thomas E. Warner West Palm Beach

Richard Winters* Tallahassee *Non-lawyer; ^Lobbyist

Note: Mr. Harbison and Mr. Olenick are members of the Florida Association of Professional Lobbyists.

TABLE OF CONTENTS

CORPORATE, CONSTRUCTION, BUSINESS & PROFESSIONAL REGULATION, AND TAXATION LEGISLATION

HB 9 ...... 3 Trespass/Railroad Property

HB 83 ...... 3 Venture Capital Investments

SB 90 ...... 5 Motor Fuel Taxes/Commercial Aviation

SB 108 ...... 5 Minority & Underrepresented Student Achievement

SB 134 ...... 5 Cardrooms/Dominoes/Gaming

HB 211 ...... 6 Hurricane Preparedness/Sales Tax

SB 252 ...... 6 Business Filings

SB 282 ...... 7 Designated Drivers

SB 404 ...... 7 Construction & Housing Industry/Regulation

HB 426 ...... 8 Ads/False, Deceptive, Misleading

SB 500 ...... 9 Instant Bingo/Gaming

HB 529 ...... 9 Cable TV/Video Service Franchises

SB 640 ...... 11 Public Accountancy/Licensure

HB 721 ...... 11 Sales Tax/Postsecondary Bookstore

i 2007 LEGISLATIVE REPORT

SB 752 ...... 11 Cardrooms/Gaming

HB 815 ...... 11 Motor Vehicle Dealers

SB 920 ...... 12 Cosmetology

HB 921 ...... 13 Wireless Communications Funds

SB 1014...... 13 2007 Internal Revenue Code Adoption

SB 1026...... 14 Ad Valorem Tax/Disabled Veterans

HB 1047 ...... 14 Slot Machine Gaming

HB 1051 ...... 15 Blindness/Homestead Exemption/Certification Form

HB 1177 ...... 15 Funeral & Cemetery Industry Regulation

SB 1178...... 16 Local Business Tax Receipts

HB 1185 ...... 16 Trespass/Construction Site

HB 1199 ...... 16 Agricultural Electricity/ Sales Tax Exemption

HB 1283 ...... 17 Black Business Investment

HB 1285 ...... 17 Construction Liens

HB 1325 ...... 18 Don Davis Entertainment Industry Act

CS/SB 1456...... 19 Sales Tax/School Supplies & Clothing ii CARLTON FIELDS, P.A.

HB 1489 ...... 19 Public Project Construction Bonds

SB 1818...... 19 Telecommunications Industry/Reports

SB 1822...... 20 Carbon Monoxide Detectors

SB 1952...... 20 Agriculture & Consumer Services Department

SB 2118...... 21 Debts & Debtors

SB 2142...... 23 Protecting Florida's Investments Act

SB 2224...... 26 Local Governments/Authorized Investments

SB 2234...... 26 Regulation of Building Inspection Professionals

SB 2482...... 28 Tax Administration

SB 2484...... 29 Lodging & Food Service Establishments

SB 2836...... 30 Florida Building Commission

HB 7205 ...... 33 RV Manufacturers/Distributors/Dealers/Importers

EDUCATION & WORKFORCE LEGISLATION

SB 412 ...... 37 Education/Children of POWs or MIAs

SB 450 ...... 37 Florida Teachers Lead Program Stipend/Pre-K

HB 461 ...... 37 High School Athletics/Drug Testing

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HB 511 ...... 38 School Districts

HB 967 ...... 39 Physical Education

SB 1060...... 39 Educational Facilities

HB 1161 ...... 40 High School to Business Career Enhancement Act

SB 1226...... 40 Merit Award Program/School Board

SB 1232...... 41 Career & Professional Education

SB 1270...... 42 Higher Education

HB 1301 ...... 42 Workforce Services

GENERAL GOVERNMENT LEGISLATION

HB 99 ...... 47 Nonprofit Organization/Solicitation/Streets

SB 124 ...... 47 Custom Vehicles & Street Rods

HB 275 ...... 48 Vehicles/Mobile Homes/Vessels/Registration

HB 431 ...... 49 Tourist-oriented Directional Sign

HB 537 ...... 49 Elections

HB 699 ...... 55 Veteran/Public Employment Preference

HB 707 ...... 55 Lights on Motor Vehicles iv CARLTON FIELDS, P.A.

HB 803 ...... 55 Qualifying Adoptive Parents/Benefits

HB 851 ...... 56 Historic Preservation

SB 900 ...... 56 Initiative Petitions

HB 919 ...... 57 Emergency Communications Systems

HB 1305 ...... 57 Notary Public/Electronic Notarization of Documents

SB 1372...... 58 Agriculture & Consumer Services

HB 1427 ...... 59 Agriculture/Agritourism

SB 1638...... 59 Gift Certificates & Similar Credit Items

SB 1920...... 60 Ballot Initiatives

SB 1974...... 60 State Information Technology

SB 2766...... 61 Venomous Reptiles & Reptiles of Concern

SB 2800...... 61 Appropriations

SB 2802...... 62 Appropriations Implementing Bill

HB 7167 ...... 66 Municipal Incorporation

HB 7173 ...... 66 Fish & Wildlife Conservation Commission

HB 7181 ...... 67 Human Trafficking/Immigrant Survivor

v 2007 LEGISLATIVE REPORT

HB 7183 ...... 68 Rules & Rulemaking

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

SJR 166...... 71 Property Rights/Ineligible Aliens

HB 197 ...... 71 Surface Water Protection Programs

HB 259 ...... 72 Mobile Home Relocation Corporation

SB 314 ...... 72 Condominiums

SB 392 ...... 73 Watershed Restoration

SB 400 ...... 74 Landlord/Possession of Dwelling Unit

HB 405 ...... 75 Vacation & Timeshare Plans

SB 506 ...... 75 Tampa Bay Area Regional Transportation

HB 549 ...... 76 Power Plants/Integrated Gasification

SB 606 ...... 77 South Florida Regional Transportation Authority

SB 668 ...... 78 Surplus State Lands/Reconveyance

SB 902 ...... 78 Community Associations

HB 985 ...... 80 Transportation & Infrastructure

vi CARLTON FIELDS, P.A.

HB 1039 ...... 84 Southwest Florida Water Management District

HB 1277 ...... 84 Residential Tenancies

HB 1375 ...... 85 Affordable Housing

SB 1472...... 89 Beach & Shore Preservation

HB 1491 ...... 89 Community Development Districts

SB 1824...... 91 Mortgages

SB 1844...... 92 Homeowner's Associations

SB 1972...... 93 Leases/Private Property/State Agency

SB 2038...... 94 Real Property Electronic Recording

SB 2052...... 94 Environmental Protection

HB 7123 ...... 95 Energy

HB 7203 ...... 97 Growth Management

HEALTH CARE & HEALTH INSURANCE LEGISLATION

HB 97 ...... 103 Medicare Supplement Policies

SB 246 ...... 103 Certificates of Need/Level I/Cardiology Services

SB 248 ...... 104 Clinical Nursing Specialties

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HB 455 ...... 104 Organ & Tissue Donation

HB 543 ...... 104 Pharmacist Kevin Coit Memorial Act

SB 590 ...... 105 HMO Contract/New Subscriber's Rights

SB 650 ...... 105 Osteopathic Physicians

SB 666 ...... 106 Fiscal Intermediary Services Organizations/Health Care

SB 682 ...... 107 Nursing Facilities

SB 770 ...... 107 Physician Workforce Assessment & Development

SB 992 ...... 108 Health Care Providers Licensure

HB 1007 ...... 108 Physician Assistants/Prescriptions

SB 1116...... 109 Health Care

HB 1155 ...... 111 Drugs & Pharmacies

SB 1508...... 112 Informed Consent/Medical

SB 1700...... 112 Physician Assistants/Paramedic Certification

SB 1758...... 112 Hospitals/Off-premises Emergency Department

SB 1916...... 113 Assisted Living Facilities/Adult Day Care

SB 2114...... 113 Independent Living Transition Services viii CARLTON FIELDS, P.A.

SB 2260...... 114 Department of Health/State Surgeon General

SB 2634...... 115 Hospice Facility Construction

SB 2858...... 115 Chiropractic Medicine

HB 7065 ...... 116 Medicaid

HB 7165 ...... 116 Hospitals

INSURANCE & FINANCIAL SERVICES LEGISLATION

1-A ...... 121 Hurricane Preparedness and Insurance

HB 111 ...... 131 Nonresident Title Insurance Agents

HB 359 ...... 132 Motor Vehicle Financial Responsibility

HB 411 ...... 133 Limited Insurance Licenses

HB 517 ...... 134 Financial Responsibility for Motor Vehicles

SB 562 ...... 134 Ownership or Transfer of Securities

SB 672 ...... 135 Credit Balances/Unclaimed Property

SB 746 ...... 135 Workers' Compensation/First Responders

SB 1100...... 136 Securities Transactions Regulation

SB 1206...... 136 Warranty Responsibility/MV Dealers

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HB 1381 ...... 137 Insurance, Agencies , Agents & Adjusters

HB 1549 ...... 138 Examination of Insurers

SB 1624...... 138 Insurance/Workers’ Compensation/Public Construction Projects

SB 1748...... 139 Insurance Contracts/Workers' Compensation

SB 1894...... 139 Joint Underwriting Plan/Workers' Compensation

SB 2498...... 141 Citizens Property Insurance Corporation

HB 7031 ...... 145 Community Associations/Insurance

HB 7057 ...... 146 Hurricane Damage Mitigation

HB 7087 ...... 149 Financial Services

LEGAL & THE JUDICIARY LEGISLATION

SB 2 ...... 153 Unattended Child in Motor Vehicle

HB 25 ...... 153 Adam Arnold Act/DUI

HB 55 ...... 154 Domestic Violence/Employee Leave

HB 77 ...... 154 Child Visitation

SB 122 ...... 155 Child Custody/Not Modifying Child Custody

HB 123 ...... 155 Law Enforcement & Correctional Officers x CARLTON FIELDS, P.A.

HB 143 ...... 156 Criminal Justice Commission

SB 146 ...... 157 Anti-Murder Act/Violent Offenders

SB 184 ...... 157 Strangulation/Domestic Battery

HB 311 ...... 157 Probate

HB 339 ...... 158 Federal Law Enforcement Officers

HB 409 ...... 159 Criminal Sentencing

SB 448 ...... 159 County Funding/Court Personnel

HB 449 ...... 159 Criminal Offenses/State of Emergency

SB 624 ...... 160 Uniform Premarital Agreement Act

HB 743 ...... 161 Trusts

SB 978 ...... 162 Court-ordered Nonbinding Arbitration

SB 988 ...... 163 High-risk Offenders

HB 989 ...... 164 Crime Victims

SB 1004...... 164 Cybercrimes Against Children Act of 2007

SB 1030...... 165 Court Costs

SB 1088...... 165 Due Process

xi 2007 LEGISLATIVE REPORT

HB 1309 ...... 166 Adoption & Child Protection

HB 1441 ...... 167 Female Genital Mutilation

SB 1604...... 167 Sexual Offenders & Predators

SB 1644...... 168 Theft

SB 1770...... 169 Technology to Supplement Visitation

SB 2312...... 169 Florida False Claims Act

SB 2866...... 170 Sexually Violent Predators

HB 7107 ...... 170 Child Support Enforcement

HB 7111 ...... 171 Guardianship/Criminal History Record Checks

PUBLIC RECORDS LEGISLATION

HB 63 ...... 175 Domestic Violence Victim

HB 131 ...... 175 Florida Opportunity Fund

HB 463 ...... 176 Drug Test/High School Athletics

SB 816 ...... 176 Law Enforcement Agencies

SB 830 ...... 177 HSMV Records/Public Disclosure

HB 853 ...... 177 Historic St. Augustine xii CARLTON FIELDS, P.A.

SB 886 ...... 178 OGSR/Building Plans & Drawings/Agency

SB 1034...... 178 Physician Workforce Surveys

SB 1452...... 178 OGSR/Public Service Tax

SB 1510...... 178 Sunshine State One-Call

SB 1760...... 179 Custodian of Public Records

SB 1848...... 179 OGSR/DFS Information/Unclaimed or Abandoned Property

SB 1852...... 179 OGSR/Consumer Complaints/Inquiries

SB 1950...... 180 OGSR/Parental ID/Leaving Newborn

HB 7127 ...... 180 OGSR/PEORP/Identifying Information

HB 7159 ...... 180 Lifeline Assistance Plan Participants

HB 7169 ...... 181 Exemptions/Workers' Compensation

HB 7187 ...... 181 OGSR/Work Papers/DFS or OIR

HB 7193 ...... 182 U.S. Census Bureau/Address Information

HB 7197 ...... 182 OGSR/Social Security & Financial Account Numbers

HB 7201 ...... 182 Economic Development Agencies

INDEX ...... 185

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2007 Florida Legislature Post-Session Report

Corporate, Construction, Business & Professional Regulation & Taxation Please see Health Care & Health Insurance for bills regarding health care regulation.

CARLTON FIELDS, P.A.

CORPORATE, CONSTRUCTION, BUSINESS & PROFESSIONAL REGULATION & TAXATION z HB 9 Trespass/Railroad Property This bill defines the term “construction site” to mean any property where there is construction for which a building permit is required.

The bill provides that it is a third degree felony to trespass at construction sites of less than one acre in size and identified as such with a sign that appears predominantly, in letters not less than two inches in height, and reads in substantially the following manner: Governor Charlie Crist gestures as he makes a point during his State-of-the-State address in the House chamber Tuesday, THIS AREA IS A DESIGNATED March 6. Listening at center is Speaker Pro Tempore Dennis CONSTRUCTION SITE, AND ANYONE Baxley, R-Ocala, while right shows House Speaker Marco WHO TRESPASSES ON THIS PROPERTY Rubio, R-Miami. (House photo by Meredith Hill)

COMMITS A FELONY z HB 83 The bill requires that the notice be placed Venture Capital Investments where the building permits for construction This bill promotes venture capital investment are located. The bill provides that it is not in Florida with the creation of three entities necessary for a construction site of less than or programs, discussed below. It also ap- one acre to give the notice required by s. propriates $35 million in nonrecurring gen- 810.011(5), F.S., which requires that multi- eral revenue in FY 2007-2008, to carry out ple no-trespassing signs must be placed not the bill’s purposes. more than 500 feet apart along, and at each corner of, the boundaries of the land. The bill creates the Florida Opportunity Fund, a private, not-for-profit corporation organ- The amendment would permit homeowners ized and operated under ch. 617, F.S., with to designate their community association as Enterprise Florida, Inc. (EFI), as its sole their agent to issue “no trespass” notices. shareholder or member. A selection commit- Current law only permits homeowners or tee comprised of EFI board members will land owners to designate an actual person appoint the five-member board of directors as their agent. for the Florida Opportunity Fund. The Florida Opportunity Fund will hire an experienced If approved by the Governor, these provi- investment manager to help it invest in a sions take effect July 1, 2007. “fund-of-funds” approach in seed and earlystage venture capital funds. Such investments must focus on investment opportunities in Florida, in companies that include, but are

3 2007 LEGISLATIVE REPORT

not limited to, enterprises in life sciences, ogy transfer operations or other commer- information technology, advanced manufac- cialization programs, including incuba- turing processes, aviation and aerospace tors and accelerators. technologies, and homeland security and defense. o Maintain a centralized location to show- case companies and their technologies In its annual report to the Governor, the and products; President of the Senate, and the Speaker of the House of Representatives due each De- o Routinely communicate with private inves- cember 1, the Fund must include, at least, an tors and venture capital organizations accounting of the amount of investments dis- regarding the investment opportunities in bursed, a description of the program’s bene- its showcased companies; fits, such as the number of businesses and jobs created; and copies of independent au- o Facilitate meetings between prospective dits. investors and eligible organizations in the institute; and The bill appropriates $29.5 million in nonrecurring general revenue in FY 2007-2008 to o Issue a report by Dec. 1 of each year the Florida Opportunity Fund for investments, that includes information on any assis- and $500,000 for start-up activities. tance and activities provided by the institute; a description of the benefits to the The bill also creates the Institute for the state, such as the number of businesses Commercialization of Public Research. This started and jobs created; and copies of institute, operated by a public university and independently audited financial state- based in South Florida, shall mentor and ments. otherwise assist companies close to bringing their products to market. The actual site will The bill appropriates $900,000 in nonrecur- be selected by the EFI Board of Directors af- ring general revenue in FY 2007-2008 for ter review of proposals submitted by inter- the institute’s operational expenses; and ested public Florida universities. The insti- $100,000 in nonrecurring general revenue tute’s primary purpose is to assist in the to EFI to pay start-up costs associated with commercialization of products developed by the institute. the research and development activities of Also created in the bill is the State University publicly supported universities and colleges, Research Commercialization Assistance research institutes, and other publicly sup- Grant Program, within the existing Florida ported organizations within the state. To be Technology, Research, and Scholarship eligible for assistance, the company or or- Board of the State University System (SUS). ganization attempting to commercialize its The board will distribute grants to state uni- product must be accepted by the institute be- versities to finance earlystage, pre-marketing fore receiving the institute's assistance. activities geared to commercializing univer- The institute’s other responsibilities are: sity research products. The grants will range from $100,000 to $250,000. o Support existing commercialization efforts at Florida universities, and not sup- plant, replace, or direct existing technol-

4 CARLTON FIELDS, P.A.

The bill appropriates $4 million in nonrecur- refunds, with a commensurate recurring loss ring general revenue in FY 2007-2008 to the in motor fuel tax revenues to the State Trans- SUS’ Board of Governors for the grants. portation Trust Fund, and an insignificant

If approved by the Governor, these provi- recurring loss of local option fuel tax reve- sions take effect July 1, 2007. nues to local governments. z SB 90 If approved by the Governor, these provi- Motor Fuel Taxes/ sions take effect July 1, 2007. Commercial Aviation This bill entitles persons who purchase and z SB 108 use motor fuel in the operation of aviation Minority & Underrepresented Student ground support vehicles and equipment to a Achievement refund of the motor fuel sales tax, the State The bill requires the Florida Partnership for Comprehensive Enhanced Transportation Minority and Underrepresented Student System (SCETS) Tax, and the local-option fuel Achievement (Partnership) to work with tax, provided none of the fuel is used in ve- school districts on the following activities: hicles or equipment operated on public roads. o Identify minority and underrepresented students for participation in Advanced Specifically, the bill adds “commercial avia- Placement (AP) and other advanced tion purposes” to the list of motor fuel uses courses; and for which a person is entitled to a refund of the local option fuel tax, the SCETS tax, and o Provide information to students and par- the fuel sales tax. A refund would be avail- ents regarding opportunities to take AP able for “fuel used in the operation of avia- and other advanced courses, and the tion ground support vehicles or equipment, advantages of doing so. no part of which fuel is used in any vehicle The Partnership is tasked with providing in- or equipment driven or operated upon the formation to students, parents, teachers, public highways of this state.” Under this counselors, administrators, school districts, definition, qualifying vehicles and equipment community colleges, and state universities would include “tugs” used for maneuvering regarding opportunities to take the aircraft and transporting baggage and other PSAT/NMSQT or PLAN, and the value of freight between an aircraft and the terminal, doing so. The bill also requires the Partner- concessionaire and fuel vehicles, emergency ship, in cooperation with the DOE, to pro- and other vehicles used exclusively on air- vide information about its activities to admin- port property, as well as landscaping and istrators, teachers, and counselors. other gasoline or diesel fuel equipment. Fuel used in aircraft or any vehicle which oper- If approved by the Governor, these provi- ates on the public highway system would not sions take effect July 1, 2007. be eligible for tax refund. z SB 134 Commercial aviation ground support com- Cardrooms/Dominoes/Gaming panies will receive, in the aggregate, an es- The bill amends s. 849.086, F.S., to define timated $200,000 annually in motor fuel tax and include dominoes in the list of author-

5 2007 LEGISLATIVE REPORT

ized games permitted to be played at a in the event of a power outage selling for cardroom. $1,000 or less;

If approved by the Governor, these provi- o Any storm shutter device selling for $200 sions take effect July 1, 2007. or less (“storm shutter device” is defined as materials and products manufactured, z HB 211 rated, and marketed specifically for the Hurricane Preparedness/Sales Tax purpose of preventing window damage The bill (Chapter 2007-25, L.O.F.) creates an from storms); unnumbered section of Florida Statutes and provides for a sales tax exemption period for o Any carbon monoxide detector selling for the purchase of items typically associated with $75 or less; hurricane preparedness. The sales tax exemption period extends from June 1, 2007 o Any reusable ice selling for $10 or less; through June 12, 2007. Items covered by the and exemption include: o Any single product consisting of two or o Any portable, self-powered light source more of the items listed above selling for selling for $20 or less; $75 or less. o Any portable self-powered radio, two-way These provisions were approved by the Gov- radio, or weather-band radio selling for ernor and took effect on April 30, 2007. $75 or less; z SB 252 o Any tarpaulin or flexible waterproof Business Filings sheeting selling for $50 or less; This bill amends Article 1 of the Uniform Commercial Code (UCC or code), which is o Any ground anchor system or tie-down codified mainly in ch. 671, F.S. The changes, kit selling for $50 or less; which are primarily technical, are based on revisions made in 2001 to Article 1 of the o Any gas or diesel fuel tank selling for UCC model code by the National Conference $25 or less; of Commissioners on Uniform State Laws and the American Law Institute. More specifically, o Any package of AAA-cell, AA-cell, C-cell, the bill: D-cell, 6-volt, or 9-volt batteries, excluding automobile or boat batteries, selling for o Revises, deletes and provides new defini- $30 or less; tions; o Any cell phone battery selling for $60 or o Revises the statutes to recognize chang- less or any cell phone charger selling for ing business practices, particularly as $40 or less; they reflect terms and practices arising from electronic commerce; o Any non-electric food-storage cooler selling for $30 or less; o Clarifies the scope of Article 1 to encom- pass only transactions within the scope of o Any portable generator used to provide other articles of the UCC; light, communications, or preserve food

6 CARLTON FIELDS, P.A.

o Defines the application of supplemental holic beverage establishments from refusing laws to the UCC such as the Electronic service to a person who does not purchase Signatures in Global and National alcohol because he or she is the designated Commerce Act (E-sign); driver for one or more persons who are pur- chasing alcoholic beverages at the estab- o Revises the definition of good faith to con- lishment. The bill also provides that this pro- form to the definition of that term as used vision does not excuse a retail alcoholic in the majority of the recently revised beverage establishment from complying with UCC articles; any applicable municipal or county ordinance regulating the presence of persons o Provides that evidence of “course of per- under 21 years of age on the premises of formance” may be used to interpret a the establishment. contract along with “course of dealing” and “usage of trade”; If approved by the Governor, these provisions take effect October 1, 2007. o Deletes references to electronic filing in the fees provision, thereby, making current z SB 404 fees applicable to hard copy submissions Construction & Housing Industry/ as well as future electronic filings; Regulation The bill permits an applicant to qualify for o Amends the fee provision of s. 713.901, licensure as a building code inspector or F.S., the Florida Uniform Lien Registration plans examiner if he or she demonstrates Act, to specify the current filing and regis- completion of an approved training program tration fees using the terminology of the and a minimum of two years experience in act rather than that of the UCC; and the field of building codes inspection, plan review, fire code inspections, fire plans re- o Conforms cross-references to reflect the view of new buildings as a certified fire revisions to the code. safety inspector, or construction. The ap- In addition, the bill incorporates the provi- proved training program must include 300 sions of CS/SB 2148 and amends ss. hours with 20 hours of instruction laws, rules, 608.406 and 608.407, F. S., to require lim- and ethics. ited liability companies registered with the The bill requires that the certification exami- Department of State (DOS) to be distinguish- nations for building code enforcement offi- able in the databases maintained by the Di- cials must be substantially similar to those ad- vision of Corporations within DOS, with cer- ministered by the International Code Council. tain exceptions. In addition, the bill prohibits The bill permits building code enforcement DOS from continuing to record duplicate officials employed by small counties having names. a population of 150,000 or less to provide If approved by the Governor, these provisions building code services to another small take effect January 1, 2008. county. z SB 282 The bill limits the building code enforcement Designated Drivers official’s bill of rights to disciplinary investiga- The bill would prohibit licensed retail alco- tions and proceedings against licenses under

7 2007 LEGISLATIVE REPORT

ch. 468, part XII, F.S., relating to the official bile home park owner. Manufactured hous- duties of an enforcement official. It provides ing placed on mobile home lots must be that the building code enforcement official’s taxed as mobile homes under s. 320.08(11), bill of rights does not apply to disciplinary in- F.S., and may be subject to payments to the vestigations and proceedings against other Florida Mobile Home Relocation Corporation licenses that the enforcement official may as required under s. 723.06116, F.S. hold. The bill provides that engineers or architects The bill authorizes the Florida Building Code may contract directly with a licensed contrac- Administrators and Inspectors Board to take tor for the preparation of plans, specifica- disciplinary action if the licensee fails to en- tions, or a master design manual addressing force the Florida Building Code or permitting structural designs used in an application of requirements that the licensee knew were ap- building permits. It provides that a contractor plicable, obstructs an investigation, or provides is not required to prepare site plans for the forged documents or false evidence or testi- design or construction of family dwellings, mony in an investigation, or accepts free la- swimming pools, spas, or screened enclosures, bor, services or materials or at non- or any other structure not exceeding 1,200 competitive rates from non-family members. square feet or one story in height. The bill defines the term “master design manual,” re- The bill also requires a minimum of three quires training for the contractor, architect, hours continuing education in laws, rules, or engineer using the manual, and requires and ethics for building code enforcement of- peer review of the manual by an architect or ficials. Proof of completion of core courses engineer. must be completed during the first two years of licensure. The bill requires that the expansion of existing warehouses must comply with the fire The bill requires applicants for initial issuance protection system requirements in the Florida of a certificate or registration as a contractor Building Code (code). It also provides that to submit to a statewide criminal history re- existing warehouses do not need to be up- cords check through the Florida Department of dated to meet current requirements if they Law Enforcement. It provides that the Con- are in compliance with the 2001 version of struction Industry Licensing Board rules per- the code and with the code requirements taining to financial stability may include concerning sprinkler systems. minimum requirements for net worth, cash, and bonding. Fifty percent of the requirement If approved by the Governor, these provi- may be met by completing a 14-hour finan- sions take effect July 1, 2007. cial responsibility course. z SB 426 The bill provides for the placement of manu- Ads/False, Deceptive, Misleading factured housing on mobile home lots in mo- This bill prohibits a person from advertising bile home parks, recreational vehicle parks, or conducting a live musical performance by and mobile home condominiums, coopera- using a false, deceptive, or misleading state- tives, or subdivisions. Manufactured housing ment of an affiliation, connection, or associa- units may not be placed on a mobile home lot tion between a performing person or group without the prior written approval of the mo- and a recording person or group.

8 CARLTON FIELDS, P.A.

There is no violation of this prohibition if: the game and gives specifications for how the tickets must look, be manufactured, and the o The performing person or at least one manner in which instant bingo tickets are to member of the performing group was a be sold and distributed in this state. It pro- member of the recording group and has vides that instant bingo tickets may only be the legal right to use the name of the re- played where authorized bingo games are cording group by not abandoning the af- played. filiation with the recording group or its name; If approved by the Governor, these provisions take effect July 1, 2007. o The performing person or group is the authorized registrant and owner of a z HB 529 federal service mark for that person or Cable TV/Video Service Franchises group which is registered with the The bill establishes the authority to issue state- United States Patent and Trademark Of- wide cable and video franchises within the fice; Department of State and designates the department as the state franchise authority. The o The live musical performance or pro- bill removes local government authority to duction is identified as a “salute” or negotiate cable service franchises. “tribute” to, and is otherwise unaffiliated with, the recording person or group; The bill creates a new chapter 610 of the Florida Statutes. The bill provides for defini- o The advertising does not relate to a live tions and establishes an application proce- musical performance taking place in this dure for a state-issued certificate of franchise state; or authority by the department. Incumbent cable or video services providers are eligible to im- o The performance is expressly authorized mediately apply for a state-issued certificate in the advertising by the recording per- and the applicable municipal or county fran- son or group. chise is terminated on the date the department issues the state-issued certificate of fran- Any person who violates the prohibition com- chise authority. Certificateholders are re- mits a misdemeanor. The bill also authorizes quired to update information every five years. the Department of Legal Affairs or a state at- The bill provides for application and process- torney to file a civil action for injunctive relief ing fees, most of such fees will be trans- and authorizes a court to impose a civil pen- ferred to the Department of Agriculture alty of up to $5,000 for each violation. and Consumer Services. Franchise fees im- If approved by the Governor, these provi- posed by local governments, except those sions take effect July 1, 2007. franchise fees already collected through the Communications Services Tax and permitting z SB 500 fees collected for the use of the right-of-way Instant Bingo/Gaming are prohibited under the bill. Buildout re- The bill provides for the playing of instant quirements are prohibited. bingo at the currently authorized locations provided in s. 849.0931, F.S. It provides The bill requires that all cable or video ser- new definitions that describe the tickets and vice providers must comply with federal re-

9 2007 LEGISLATIVE REPORT

quirements as provided in the bill. Local gov- for definitions and declares discrimination ernments that have an office or department among residents by a provider of cable or dedicated to respond to cable or video ser- video service unlawful and violation of the vice customer complaints may continue to section. The bill provides for how a certifi- respond to such complaints until July 1, cateholder may satisfy the section, how to 2009, at which time the Department of Agri- determine whether a violation has occurred, culture will have sole customer complaint au- and for enforcement. thority. If a certficateholder is found by a court of Guidelines for the number of public, educa- competent jurisdiction not in compliance with tional, and government (PEG) channels to the requirements of the chapter, it has a rea- be provided are established. Certificate sonable period of time as specified by the holders must provide the same number of court to cure such noncompliance. If an in- public, educational, and governmental ac- cumbent cable or video service provider is cess channels, or their functional equivalent, required to operate under its existing fran- that a municipality or county has activated chise, certain conditions also apply to certi- under the incumbent cable or video service ficateholders that provide service in that provider’s franchise agreement as of July 1, area. 2007. The bill provides criteria for additional channels and for two channels if no The Office of Program Policy Analysis and franchise agreement exists or the local gov- Governmental Accountability (OPPAGA) and ernment has no requirements. The bill pro- the Department of Agriculture and Consumer vides for operation, interconnection, and Services are required to submit certain reports transmission of video programming. to the Legislature.

The bill provides for free cable or video ser- The bill repeals statutes related to a 2003 vices for K- 12 public schools, public libraries law increasing basic local telecommunica- or local government administrative buildings tions rates and reducing rates for intrastate under certain conditions. Municipalities or switched network access that affects long dis- counties are prohibited from discriminating tance rates and adds an automatic enroll- against certificateholders for items such as ment requirement for Lifeline services. access to rights-ofway, buildings, or property or terms and conditions of utility pole attach- The bill makes conforming changes to the ments. Local authority is limited with regard to Communications Services Tax (CST) and the certain additional requirements on the certifi- use of rights-of-way statute. The bill repeals cateholder including financial, operational, the current cable franchising law in s. and administrative requirements. A local au- 166.046, F.S., and the process for the Public thority may not require the filing of certain Service Commission to consider petitions for documents. reductions in intrastate switched network access rates in s. 364.164, F.S. The bill prohibits discrimination against subscribers based on race or income, and cre- If approved by the Governor, these provi- ates a new section in the Deceptive and Un- sions take effect upon becoming law. fair Trade Practices Act, ch. 501, F. S., to enforce the provisions. This section provides

10 CARLTON FIELDS, P.A.

permitholder meets the requirements of s. z SB 640 849.086(5)(b), F.S., when the facility is au- Public Accountancy/Licensure thorized to accept wagers on pari-mutuel The bill deletes the October 1, 2008 dead- events, unless extended by the local govern- line to apply for licensure as a CPA under a ment where the facility is located. It changes licensing option that permits applicants to sub- the maximum bet from $2 to $5, authorizes a stitute five years of experience for a 5th year of cardroom operator to award giveaways, education requirement. The bill would make jackpots, and prizes to players. It authorizes this option permanent. Texas Hold’em games without betting limits The bill clarifies that the 80 hours of continuing under certain circumstances. The bill pro- education required for certified public ac- vides for poker tournaments under certain countants may include self-directed study. conditions. It requires approval by a majority vote of the local governing body where the If approved by the Governor, these provisions proposed cardroom is seeking location. take effect July 1, 2007. Implementation of this bill may result in an z HB 721 estimated increase in revenues of $1.7 Sales Tax/Postsecondary Bookstore million annually. $15,000 would be from This bill provides a sales tax exemption for additional occupational license fees with the payments made by bookstore operators for remainder from gross receipt taxes. the use of the real property where the book- $212,500 of this amount would be distributed store is located. to local governments where the cardrooms are located. To qualify for the exemption, bookstores must be primarily involved in the types of sales, If approved by the Governor, these provi- distribution, and provision of textbooks, mer- sions take effect July 1, 2007. chandise, and services that are traditionally available at college and university book- z HB 815 stores. Motor Vehicle Dealers The general impact of the bill is to raise the Although this exemption operates retroactively level of protection for franchised motor vehicle to amounts paid on or after January 1, 2006, dealers in three different aspects of their taxpayers are not entitled to refunds by any businesses. government entity for any tax, penalty, or interest paid to the Department of Revenue To address the issue of manufacturer charge- before the bill becomes law. backs of warranty or incentive payment costs, the bill amends s. 320.64(25), F.S., by: If approved by the Governor, these provisions take effect upon becoming law. o Specifying a motor vehicle manufacturer may not charge back to a motor z SB 752 vehicle dealer extra costs subsequent to Cardrooms/Gaming the payment of a warranty or incentive The bill amends the cardroom hours of opera- claim unless a representative of the tion in section 849.086(7)(b), F.S., by allow- manufacturer has met in person, by ing for operation of the cardroom on any day telephone, or by video teleconference for a cumulative amount of 12 hours if the with a representative of the dealer.

11 2007 LEGISLATIVE REPORT

o Requiring the manufacturer at such a o The dealer’s performance with the exist- meeting to provide a detailed explana- ing line-make. tion, with supporting documentation, on the basis for each of the claims for which This prohibition would be enforced notwith- the manufacturer proposes to charge standing the terms of any franchise agreement back the dealer, and a written state- to the contrary. ment containing the basis upon which the motor vehicle dealer was selected for In addition, the bill amends s. 320.641(3), audit or review. The dealer is given a F.S., to clarify a new motor vehicle dealer reasonable period of time, commen- must be given at least 180 days to correct surate with the volume of claims be- an alleged failure related to sales or service ing considered, but not less than 45 performance before a manufacturer may days after the meeting, to respond to the send out a notice of discontinuation, cancella- proposed charge-backs. tion, or nonrenewal of the franchise agreement. o Prohibiting the manufacturer from chang- ing or altering the basis for each of the As provided in current law, affected motor proposed charge-backs as presented to vehicle dealers could pursue all of the reme- the dealer following the conclusion of the dies, procedures, and rights of recovery audit, unless the manufacturer received available under ss. 320.695 and 320.697, new information affecting the basis for F.S., – including treble damages against the one or more charge-backs. manufacturer – when a manufacturer fails to comply with or violates these new provisions. o Specifying if a manufacturer changes the basis for a proposed charge-back based If approved by the Governor, these provi- on new information, the motor vehicle sions take effect July 1, 2007. dealer must be given the same right to z SB 920 a meeting and right to respond as when Cosmetology the charge-back was originally presented. The bill redefines the practice of cosmetology No provision in Florida law currently re- to include hair technician services, esthetician quires manufacturers to permit a dealer services, and nail technician services. The to respond to alleged improper claims. term “esthetician” relates to non-medical, The bill adds a subsection to s. 320.64, F.S., cosmetic facial services. The bill permits a prohibiting a motor vehicle manufacturer from person to obtain a license as a hair techni- limiting, restricting, or refusing to allow a cian, esthetician, or nail technician. A cos- dealer from acquiring or adding a sales or metologist may provide all three of these service operation for another line-make of specialty services. The bill defines the ser- motor vehicles to his facility, unless the manu- vices that each class of license may perform. facturer is able to prove its decision is justi- Persons licensed as a cosmetologist or as a fied after consideration of: specialist under current law may continue to hold their current license or registration. o Reasonable facility and financial requirements associated with adding the new The bill increases the minimum required edu- line-make, and cation hours for licensure as a cosmetologist from 1,200 to 1,800 hours. It requires 1,000

12 CARLTON FIELDS, P.A.

minimum hours of education for a hair techni- z HB 921 cian. It increases from 260 to 600 hours the Wireless Communications Funds minimum number of required hours for an The Wireless Emergency Telephone System esthetician and from 240 to 350 the minimum Fund is renamed the Emergency Communica- number of required hours for a nail technician. tions Number E91 1 System Fund. This fund The bill permits a student who has enrolled is used to administer the Florida Emergency and begun his or her education before July Communications Number E91 1 State Plan 1, 2008, to take the exam to be licensed as as provided in s. 365.17 1, F.S. The bill a cosmetologist upon completion of 1,200 specifies that all fees assessed and collected hours of training. by the telecommunications industry from subscribers be remitted directly to the E9 11 The bill provides definitions of salon, pro- Board for direct deposit into the State Treas- vides age and education requirements, per- ury. The bill provides for the separation of mits license by endorsement for foreign per- said revenues into wireless and nonwireless sons, and provides for certain services to be categories. It revises the distribution of reve- performed outside of a salon. nues and reduces the carry-forward provision for counties, from 30 percent to 20 percent. The bill provides for cosmetology internships However, counties will be exempt from the through cosmetology schools and programs. It carry-forward provision as it relates to fund- establishes the conditions and rights applica- ing received from grants. The bill requires ble to cosmetology schools or programs. It wireless providers to submit all invoices for provides for selection, placement, eligibility, the previous year by no later than March 31. supervision, and field of study for the interns. By September 1, 2007, up to $15 million is The student’s cosmetology school is responsible made available from the fund for the E91 1 for the selection and placement of the intern, Board to distribute to counties. This distribu- and determining whether a student is eligible tion of funds will help offset the current col- to become a cosmetology intern, and lection of nonwireless revenues at the local whether an internship sponsor meets the re- level to the future remittance at the state quirements for its educational objectives. level.

The bill requires that the cosmetology intern If approved by the Governor, these provi- must be supervised by a licensed cosmetologist sions take effect upon becoming law. in a licensed salon. The bill would permit the cosmetology intern to only practice within the z SB 1014 field of cosmetology in which he or she is 2007 Internal Revenue Code engaged in the course of study. Adoption This bill updates the Florida Corporate Income The bill appropriates $60,149 in nonrecur- Tax Code to reflect changes in the U.S. Inter- ring funds for FY 2007-2008 to the Depart- nal Revenue Code enacted by Congress dur- ment of Business and Professional Regulation ing 2006. This definition provides for “pig- to begin implementation of the licensure pro- gybacking” each change made during 2006 visions of the bill. in the Internal Revenue Code. If approved by the Governor, these provisions take effect July 1, 2008.

13 2007 LEGISLATIVE REPORT

If approved by the Governor, these provisions reapply in a subsequent year using the same take effect upon becoming law and shall op- procedure. All notifications from the property erate retroactively to January 1, 2007. appraiser must specify the right to appeal to the value adjustment board and procedures z SB 1026 to follow for such an appeal. Ad Valorem Tax/Disabled Veterans The bill codifies an amendment to s. 6, Art. The bill provides procedures for property ap- VII of the State Constitution, that was appraisers to apply the discount. It also allows a proved by the voters in the November 2006 county to waive the requirement that a vet- general election. The amendment and the bill eran reapply annually for the discount. If re- provide that each partially or totally perma- application is waived, the veteran is subject nently disabled veteran who is age 65 or to certain penalties for failing to notify the older shall receive an ad valorem discount on property appraiser of a change in eligibility homestead property that the veteran owns and for the discount. resides in if the veteran: has a combat-related disability, was a resident of the state of Flor- If approved by the Governor, these provisions ida when entering military service, and was take effect upon becoming law and apply ret- honorably discharged from military service. roactively to December 7, 2006. The discount shall be in a percentage equal to the percentage of the veteran’s permanent, z HB 1047 service-connected disability as determined by Slot Machine Gaming the United States Department of Veterans This bill allows for automated teller machines in Affairs. the pari-mutuel facilities with slot machines but excludes them from the slot machine gaming To qualify for the discount, a veteran must, area. It increases the number of slot machines by March 1, submit to the county property per facility from 1500 to 2000. It requires appraiser: proof of residency at the time of drug testing of the slot machine facility em- entering military service, an official letter ployees. from the United States Department of Veter- ans Affairs that states the percentage of the It provides for a fixed $2 million payment veteran’s disability and evidence that the dis- bond and clarifies that the payment of the $3 ability is combat-related, a copy of the vet- million license fee is on the anniversary date eran’s honorable discharge, and proof of age of the issuance of the slot machine license. as of January 1 for the year in which the dis- It provides for temporary licensure for occupa- count will apply. A veteran who is otherwise tional licensees and for a single universal oc- entitled to the discount, but who misses the cupation license for employees. March 1 deadline, may use the same procedure as someone who misses the deadline to It provides for additional storage facilities for apply for other ad valorem exemptions which the machines and possession for training involves petitioning the value adjustment purposes. board to grant the discount. The property appraiser must notify the applicant in writing It allows for the gaming areas to be open 18 of the reasons for denying an application for hours a day Monday through Friday and 24 the discount by July 1 of the year for which hours on the weekend and allows for pro- the application was filed. The veteran may

14 CARLTON FIELDS, P.A.

gressive games within the slot machine facil- z HB 1177 ity. Funeral & Cemetery Industry Regulation The bill excludes check cashing within the The bill prohibits any person regulated by designated slot machine gaming area and chs. 395, 400, or 429, F.S., relating to also excludes the cashing of any government- hospitals, nursing homes, and related issued check, third party check, or payroll health care facilities, including hospices check issued to an individual. and assisted care communities, from own- ing, managing, or operating any business Outside of the gaming area, the bill allows entity whose service or activity is licensed for employee check cashing. These employ- under ch. 497, F.S. It applies this prohibition ees are prohibited from playing on the slot to any officer, administrator, or board mem- machines under s. 55 1.108(5), F.S. It allows ber of an entity if the entity is a firm, corpo- acceptance of a check payable to a person ration, partnership, or any person who owns licensed by the division, a patron, or a pari- more than five percent or more of such a mutuel facility. business entity. It provides exemptions from the prohibition. If approved by the Governor, these provisions take effect upon becoming law. The bill provides that limited licenses can be issued to retired professionals when there is z HB 1051 a critical need, and defines critical need. It Blindness/Homestead Exemption/ requires that all limited licensees must be em- Certification Form ployed by an entity licensed under ch. 497, The bill authorizes a Florida-licensed op- F.S. The bill also: tometrist to certify a total and permanent disability due to legal blindness for purposes o Requires non-licensed operational per- of qualifying a person within certain income sonnel to complete a required course on limitations for an exemption of the total value communicable disease every six years; of a homestead property from ad valorem taxation. Certification of total and perma- o Provides that the monument installation re- nent disability due to legal blindness by a quirement apply to all cemeteries in this Florida-licensed allopathic or osteopathic state, including unlicensed cemeteries; physician and a Florida-licensed optometrist satisfies the requirement for the exemption o Provides standards for the ventilation of from ad valorem taxation. Only one of the private and family mausoleums; two certifications required for total and permanent disability due to legal blindness o Permits deceased persons to be interned may be completed by an optometrist; the or entombed with the cremated inurned other certification must be completed by a remains of their pets; physician. The bill specifies a form for an optometrist’s certification of total and permanent o Permits funeral director and embalmers to disability, including specified notices to the complete a continuing education instruc- taxpayer and the optometrist. tion in HIV and AIDS once every six years instead of once every two years; If approved by the Governor, these provisions take effect July 1, 2007.

15 2007 LEGISLATIVE REPORT

THIS AREA IS A DESIGNATED o Revises requirements for licensure by en- CONSTRUCTION SITE, AND ANYONE dorsement for funeral directors; and WHO TRESPASSES ON THIS PROPERTY o Changes the term “monument dealer” to COMMITS A FELONY “monument retailer.” The bill requires that the notice be placed The bill prohibits claims objecting to cremation where the building permits for construction against a funeral director, direct disposer, fu- are located. The bill provides that it is not neral establishment, direct disposal estab- necessary for a construction site of less than lishment or a cinerator facility under certain one acre to give the notice required by s. conditions. 810.011(5), F.S., which requires that multiple no-trespassing signs must be placed not more If approved by the Governor, these provi- than 500 feet apart along, and at each cor- sions take effect July 1, 2007. ner of, the boundaries of the land. z SB 1178 The amendment would permit homeowners Local Business Tax Receipts to designate their community association as The bill revises the date for beginning the their agent to issue “no trespass” notices. Cur- annual sale of local business tax receipts rent law only permits homeowners or land from August 1 to July 1 of each year. It also owners to designate an actual person as their provides a window for municipalities that agent. adopted a local business tax ordinance after October 1, 1995, to reclassify businesses, If approved by the Governor, these provi- professions, and occupations, and to estab- sions take effect July 1, 2007. lish new rate structures, before October 1, z HB 1199 2008, if certain conditions are met. This bill Agricultural Electricity/ also specifically authorizes municipalities Sales Tax Exemption and counties to decrease or eliminate a local This bill amends s 212.08, F. S., to ex- business tax. empt electricity used directly or indirectly If approved by the Governor, these provi- in the production or processing of agricul- sions take effect July 1, 2007. tural products thereby broadening the current sales and use tax exemption. Current z HB 1185 law only allows an exemption for electricity Trespass/Construction Site used directly in the production or processing This bill defines the term “construction site” to of agriculture products. The bill retains the mean any property where there is construc- statutory requirement that electricity be sepa- tion for which a building permit is required. rately metered; and, the presumption that if not separately metered, then all of the elec- The bill provides that it is a third degree fel- tricity is taxable. ony to trespass at construction sites of less than one acre in size and identified as such If approved by the Governor, these provisions with a sign that appears predominantly, in take effect on July 1, 2007. letters not less than two inches in height, and reads in substantially the following manner:

16 CARLTON FIELDS, P.A.

o Promote the expanded black business z HB 1283 bonding program, which assists qualified Black Business Investment black contractors in obtaining surety The bill creates the Florida Black Business In- bonds and other credit instruments. vestment Act, which is intended to increase the availability of capital to black business enter- As to the regional BBICs, the bill: prises. The bill recreates the Black Business Investment Board (FBBIB) as a not-for-profit o Expands the representation of the re- corporation to evaluate the needs and aid in gional BBICs on the FBBIB; the development of black business enterprises. o Makes it unlawful for any entity to hold itself out as a black business investment The bill also creates the Black Business Loan corporation without being certified as Program, under the administration of the Of- eligible to participate in the Florida Black fice of Tourism, Trade, and Economic Devel- Business Loan Program; opment (OTTED), to provide loans, loan guarantees, and investments through eligible re- o Grants the BBICs priority consideration for cipients such as Black Business Investment funding from the Black Business Loan Pro- Corporations (BBICs) or others, to black busi- gram; and ness enterprises that cannot otherwise obtain capital through conventional lending institu- o Allows the BBICs to use 7 percent of the tions. OTTED is required to annually certify Black Business Loan Program funds they entities to receive funds from the program. receive to provide technical support to The FBBIB is required to receive and forward black business enterprises and 10 percent the applications for certification, and recom- of program funds to fund direct adminis- mend to OTTED which entities should be trative costs. annually certified. OTTED is required to contract with the entities certified to receive The Office of Program Policy Analysis and funds from the Black Business Loan Program, Government Accountability (OPPAGA) is di- and specifies the conditions of such con- rected to prepare a status report and conduct tracts, including recovery of disbursed funds a program review of the implementation of when performance conditions are not met. the Florida Black Business Investment Act.

The bill requires the FBBIB to: The bill also declares that the public interest of the state has been served with respect to o Submit to OTTED quarterly compilations of the use of any state funds received by the the quarterly reports submitted by certified board and any BBICs prior to and through entities that have received funds from the FY 2005-2006. Black Business Loan Program; If approved by the Governor, these provi- o Submit an annual report on the perform- sions take effect July 1, 2007. ance of the Black Business Loan Program to the Governor, President of the Senate, z HB 1285 and Speaker of the House of Representa- Construction Liens tives; and This bill makes a number of changes to the Construction Lien Law. It defines the phrase

17 2007 LEGISLATIVE REPORT

“final furnishing” to mean the last date that F. S., reorganizing the existing cash- the lienor furnishes labor, services, or mate- incentive program, revising the categories for rials. entertainment productions, and establishing new criteria for qualifying production expen- It requires written notices in all direct contracts ditures for state reimbursement. between an owner and contractor on residential projects even if the direct contract is un- Specifically, the bill creates three “queues,” written. or categories, of entertainment productions eligible to receive cash incentives: the Gen- The bill provides that a contractor and the eral Production queue (which includes major property owner must agree to any bonding movies and television series); the Independent provisions. Any termination of a direct Florida Filmmaker queue; and the Digital contract before its completion can be a Media Projects queue. basis for the recommencement process. Productions in each queue must meet specific It provides that a recorded notice of com- hiring and other criteria in order to obtain the mencement can be amended to extend the cash incentives that reimburse a portion of effective period, to change erroneous infor- their qualified expenditures. Of the amount mation in the original notice, or to add infor- appropriated by the state for the cash incen- mation that was omitted from the original no- tives: 85 percent is earmarked for qualified tice. The bill provides that statement of ac- expenditures in the General Production counts must be under oath and that the lienor queue; 5 percent is earmarked for the Inde- is only entitled to information regarding direct pendent Florida Filmmaker queue; and 10 contracts under which it is providing labor, percent is earmarked for the Digital Media materials or services. Production queue.

It provides that a lien cannot continue for General Productions also are eligible for more than one year after the claim of lien has greater percentage incentives if they meet the been recorded, or one year after the re- specified requirements as a “family-friendly cording of an amended claim of lien that film” or if they are filmed during the “off- shows a later date of final furnishing of labor, season,” June 1- November 30. services, or materials. The bill also: The bill provides that the prevailing party is entitled to attorney’s fees in a proceeding in- o Directs the state Office of Film and Enter- volving fraudulent liens. tainment to include in its annual report information about the economic benefits to It provides conformity with previous changes Florida from the film industry; made in the law. o Adds a severability clause; If approved by the Governor, these provisions take effect July 1, 2007. o Repeals an unnecessary section of law related to the film and entertainment pro- z HB 1325 gram’s funding; and Don Davis Entertainment Industry Act This bill extensively amends. s. 288.1254,

18 CARLTON FIELDS, P.A.

struction-management or design-build con- o Creates penalties for fraudulent applica- tract, the bond may not be conditioned on tions and claims filed for the incentive fund- performance of such services or payment to ing. Violators must not only repay the persons furnishing such services. It also pro- fraudulently received incentive funding, vides that such a bond may exclude persons but also a penalty double that amount. furnishing such services from the classes of If approved by the Governor, these provi- persons protected by the bond. sions take effect July 1, 2007. The bill provides that a county, municipality, z CS/SB 1456 special district as defined in ch. 189, F.S., or Sales Tax/School Supplies & Clothing other political subdivision of the state, may The bill provides that no sales and use tax use a construction management entity or will be collected on sales of books, clothing, program management entity. The bill wallets, or certain bags having a selling price amends s. 287.055(9)(c), F.S., relating to of $50 or less during the period from 12:01 the acquisition of professional services, to a.m. August 4, 2007, through midnight, Au- clarify that the specified local government gust 13, 2007. The bill also provides that entities must award construction-management no sales and use tax shall be collected on and program-management contracts by use of sales of school supplies having a selling price a competitive process whereby the selected of $10 per item or less during that same pe- firm will, subsequent to competitive negotia- riod of time. tions, establish a guaranteed maximum price and guaranteed completion date. If approved by the Governor, these provisions take effect July 1, 2007. If approved by the Governor, these provisions take effect July 1, 2007. z HB 1489 Public Project Construction Bonds z SB 1818 The bill provides requirements for the per- Telecommunications Industry/ formance and payment bonds that are re- Reports quired for formal contracts with the state or The bill amends s. 364.3 86, F.S., relating any county, city, or political subdivision to the annual Report on the Status of Compe- thereof, or other public authority for the con- tition in the Telecommunications Industry. The struction of a public building, the prosecution bill changes the dates for the Public Service and completion of a public work, or repairs Commission (commission) to request data, for of a public building or public work. The bill certain companies to provide data, and the permits a public owner to set the amount of a due date for the report to be provided to the payment and performance bond at the largest Legislature. The bill also changes certain amount reasonably available if the contract reporting criteria to allow the same informa- exceeds $250 million and a bond in the tion that is provided to the Federal Communi- amount of the contract price is not reasonably cations Commission (FCC) to be provided to available. the commission so long as it identifies Florida- specific access line data. The commission The bill provides that, if a public owner does may still request and receive qualitative data not include the amount of the cost of design from the industry that is usually provided in a or other non-construction services in a con- question and answer format.

19 2007 LEGISLATIVE REPORT

If approved by the Governor, these provi- This bill is named “Janelle’s Law” in memory of sions take effect July 1, 2007. Janelle Bertot, Anthony Perez, and Tom Lued- ers, who all died from carbon monoxide poi- z SB 1822 soning in Florida. Carbon Monoxide Detectors This bill requires that one or more carbon If approved by the Governor, these provi- monoxide sensor devices be installed in any sions take effect July 1, 2007. portion of a public lodging establishment that has an enclosed space or room con- z SB 1952 taining a certain type of boiler regulated Agriculture & Consumer Services under ch. 554, F.S., in a portion of the es- Department tablishment which also contains sleeping With one exception, the provisions in this bill rooms. The bill exempts public lodging estab- relate to consumer service issues under the ju- lishments that have adequately mitigated the risdiction of the Department of Agriculture carbon monoxide hazard as determined by and Consumer Services. An additional issue the Division of Hotels and Restaurants (divi- relates to the use of the term “Chamber of sion) of the Department of Business and Commerce.” Professional Regulation. The bill also requires that each carbon monoxide device The bill requires private investigators, manag- must have been tested and listed as comply- ers of private investigative agencies, and pri- ing with the most recent Underwriters Labora- vate investigator interns to pass an exam tories, Inc., Standard 2034, or its equivalent. before applying for licensure, and requires The devices must be integrated into the estab- private investigator interns to complete a lishment’s fire detection system. The bill re- course on private investigative techniques. quires the division to adopt rules regarding The bill also revises the requirements for the installation of the sensors and the determi- those who provide training courses for re- nation of whether the establishment has ade- covery agents. quately mitigated a carbon monoxide haz- The bill updates the statutory reference to the ard. organization from which Florida adopts anti- The bill requires every building for which a freeze standards. building permit is issued for new construction The bill increases the duration required be- on or after July 1, 2008, that has fossil-fuel- tween calibrations of petroleum measuring de- burning heaters or appliances, a fireplace, or vices for volumes of 500 gallons or more an attached garage, to comply with installa- from 1 year to 3 years. tion of carbon monoxide alarms. It defines “carbon monoxide alarm” and “fossil fuel.” Regarding brake fluid registration, the bill: The bill also requires the Florida Building Commission (commission) to adopt rules to o Permits non-owners of brake fluid brand administer the provisions of the bill and renames to register brake fluid products quires the commission to incorporate the re- with the department; quirements of the bill into the next revision of the Florida Building Code. o Reduces the amount of the brake fluid sample required for registration from 64 ounces to 24 ounces; and

20 CARLTON FIELDS, P.A.

o Removes the requirement to affix labels to The task force will be staffed by the depart- the brake fluid bottles when submitting ment and shall consist of three appointments samples to the department for registration by the President of the Senate, three appoint- and testing. ments by the Speaker of the House of Repre- sentatives, five appointment by the Commis- The bill revises the evidentiary requirement sioner of Agriculture, one member appointed for proof of insurance or bond for certain by the Florida League of Cities, Inc., and one applicants for liquefied petroleum licenses. member appointed by the Florida Associa- tion of Counties. The bill expands the restrictions on unauthorized handling of gas in propane gas tanks. The bill contains the provisions of SB 1862, and both defines the term “Chamber of The bill creates the 13 member Consumer Commerce” and prohibits a business entity Fertilizer Task Force within the department to that does not qualify as a chamber of com- address the proper use of non-agricultural fer- merce from using the term in its business tilizers and local regulation related to such name or to describe itself. The bill specifies that non-agricultural fertilizers. Specifically, the unauthorized use of the term “chamber of task force is charged to: commerce” is a first-degree misdemeanor. A chamber of commerce is authorized to enjoin o Assess existing data and information an entity improperly using the term from con- regarding nutrient enrichment and sur- tinuing to do so. face waters due to fertilizer, assess management strategies for reducing If approved by the Governor, these provi- water quality impacts associated with sions take effect July 1, 2007. fertilizer, and identify additional research needs; z SB 2118 Debts & Debtors o Develop statewide guidelines governing An assignment for the benefit of creditors is an nonagricultural fertilizer use rates, for- alternative to bankruptcy. Under ch. 727, F.S., mulations, and applications; an assignor or debtor may assign his or her assets to an assignee to pay creditor claims. o Take public input and testimony concerning these issues; This bill revises the law related to assignments for the benefit of creditors. The bill also in- o Recommend methods to ensure local creases the amount of personal property ordinances are based on best available owned by persons without homestead prop- data and science and to achieve uni- erty that is exempt from creditor claims. A formity among local government ordi- number of the changes are clarifying in na- nances where possible, unless local or- ture. However, some changes were designed dinance variations are necessary to meet to reverse case law. The specific changes mandated state and federal water quality made by the bill are detailed below. standards; and Property Exempt from Creditor o Develop model ordinances for munici- Claims palities and counties concerning the use The bill amends s. 222.25, F.S., to increase of nonagricultural fertilizer. to $4,000 from $1,000 the amount of per-

21 2007 LEGISLATIVE REPORT

sonal property owned by persons without Lastly, the bill prohibits those sued by an as- homestead property that is exempt from credi- signee or secondary assignee from asserting tor claims. The exemption for persons with the assignor’s misconduct as a defense. This homestead property will remain at $1,000 as provision of the bill codifies case law applica- provided in the Florida Constitution. However, ble to receivers. the bill provides that this exemption does not apply to debts for child or spousal support. Continuation of Business Current law requires an assignee to have Publication of Foreclosure Notices authorization from a court to run an as- Under existing law, foreclosure notices may signor’s business. The bill authorizes an as- be advertised in newspapers that publish at signee to operate an assignor’s business for least five days per week in counties with a up to 14 days without authorization from a population of greater than 1 million residents. court. However, court authorization and However, the bill expands the group of news- notice to creditors are required to run the papers in which a foreclosure notice may be business for more than 14 days. advertised to include newspapers that normally publish at least five days per week Rejection of Leases and Termination except for weeks with legal holidays. of Employment Contracts Existing law does not address whether an Consensual Lienholder/ assignee may reject an unexpired lease. The Actions against the Estate bill, however, permits an assignee to reject The bill prohibits the levy, execution, or at- an unexpired lease. Whether approval of tachment by a judgment holder against any a court is required is unclear under the bill. assets of the assignor’s estate in the posses- Proposed s. 727.108(5), F.S., permits an as- sion, custody, or control of the assignee, in- signee to reject an unexpired lease, but pro- cluding real property. However, the bill proposed s. 727.109(6), F.S., authorizes a court vides that consensual lienholders may enforce to approve the rejection of a lease. their rights in personal or real property collateral. If an assignee rejects a lease, damages are limited to the greater of one year of rent or The bill clarifies that causes of action are as- 15 percent of the remaining rental payments sets within an assignor’s estate. Moreover, the and the landlord’s attorney’s fees, plus costs bill clarifies that these causes of action may for reletting the property. be assigned by the assignor to the assignee even if other law provides that they are not Currently, ch. 727, F. S., does not limit the assignable. Under existing case law, some damages resulting from the termination of an tort claims are not assignable. employment contract. Under the bill, an employee’s damages are limited to wages for Additionally, the bill provides that an assignee one year under his or her employment con- may further assign or sell the assignor’s claims tract. to others for enforcement. This provision of the bill appears to reverse Champaign National Filing of Claims Bank v. SOS Industries, Inc., 815 So. 2d 725 Under existing law, a court has no express (Fla. 5th DCA 2002), which held that an as- authority to set a date after which claims signee may not make a secondary assign- against an assignor’s estate are barred. Un- ment of claims. der the bill, a court may establish a claims

22 CARLTON FIELDS, P.A.

bar date that is at least 30 days after credi- The next priority level following the claims for tors receive notice of the claim deadline. wages and benefits are claims for deposits paid to the assignor for an interest in prop- The bill also establishes a deadline by which erty. The bill increases the amount avail- secured creditors may file deficiency claims if able at this priority level to $2,225 from the disposition of the secured property fails $900 per person. to satisfy their claims. Claims Arising Out of the Purchase Objection to Claims of a Security According to the Business Law Section of The In Moecker v. Antoine, 845 So. 2d 904 (Fla. Florida Bar, many parties have litigated 1st DCA 2003), purchasers bought unregis- whether one creditor has standing to chal- tered securities in a corporation that be- lenge the claims on an assignor’s estate by came insolvent and assigned its assets for another creditor. The bill clarifies that a credi- the benefit of creditors. These purchasers tor has standing to object to the claims of sought to increase their priority for payment of other creditors. The bill also requires assign- claims against the corporation’s estate. As ees to create and make available a register stockholders, their payment would come af- of all claims against the assignor’s estate. ter the satisfaction of all creditor claims. However, the stockholders were able to re- Priority of Claims scind their stock purchases and assert claims Under existing law, secured creditors have as unsecured creditors. This bill will effectively the highest priority for the payment of claims reverse Moecker. Under the bill, a person will by an assignor’s estate. The expenses for the not be able to become a creditor and thereby administration of the estate have the next increase his or her priority for payment by highest priority for payment. The bill clarifies rescinding a purchase of securities. that rent for the premises occupied by an assignment estate is an administration expense. If approved by the Governor, these provisions take effect July 1, 2007. After administration expenses, the next highest priority under existing law is unsecured z SB 2142 claims for taxes. The bill limits the claims un- Protecting Florida's Investments Act der this priority level to those taxes that ac- The bill creates ss. 215.442 and 215.473, F. crued within three years before the filing of S. The bill provides a series of legislative find- an assignment for the benefit of creditors. ings relative to current conditions in the countries of Sudan and Iran. The bill also requires Following the claims for taxes, the next high- the State Board of Administration (SBA) to est priority is unpaid wages and benefits of perform certain tasks related to the “Public the assignor’s employees. Current law limits Fund” that may result in the Florida Retire- these claims to wages and benefits that ac- ment System divesting itself of equity holdings crued within 90 days before the filing of the of companies doing business in Sudan and assignment for the benefit of creditors. The Iran. bill expands this period to 180 days before the assignment. The bill also increases to Findings $10,000 from $2,000 per employee the The bill references declarations by the U.S. amount of claims that may qualify at this pri- Congress, the U.S Secretary of State, and the ority level. U.S. President regarding Sudan and Iran.

23 2007 LEGISLATIVE REPORT

With respect to Sudan, the bill recognizes Therefore: and finds that: o It is the responsibility of the State of Florida o Sudan is designated as a State Sponsor to decide how, where, and by whom fi- of Terror and that the U.S. government nancial resources in its control should be has applied trade sanctions against Su- invested; dan for its ongoing actions; o Divestment from markets that are vulner- o The U. S. Congress has declared that “the able to embargo, loan restrictions, and atrocities unfolding in Darfur, Sudan are sanctions from the United States and the genocide”; and international community, including the UN Security Council, is in accordance o It is the prerogative of the State of Florida with the rules of prudence; and not to participate in ownership or in a capital-providing capacity with entities o This act should remain in effect only if it that provide significant practical support continues to be consistent with and does for genocide, including certain non-U.S. not unduly interfere with the foreign pol- companies currently doing business in icy of the United States. Sudan. Required Actions With respect to Iran, the bill recognizes and The bill requires the SBA to perform certain finds that: tasks related to the “Public Fund.” The Public Fund is defined as all funds, assets, trustees, o The United Nations (UN) Security Council and other designates under the SBA. To com- has imposed sanctions on Iran due to its ply with the provisions of this act, the SBA must failure to suspend uranium-enrichment ac- take the following actions as they apply to tivities; companies doing business with Sudan and o The UN Security Council has imposed Iran. The SBA must: an embargo on Iranian arms exports o Make its best effort to identify all scruti- which is a freeze on assets abroad of nized companies in which the Public Fund an expanded list of individuals and has direct or indirect holdings or could companies involved in Iran’s nuclear possibly have such holdings in the future: and ballistic missile programs; o The definition of a scrutinized company o Iran is subject to sanctions pursuant to as it applies to Sudan includes a com- the Iran and Libya Sanctions Act of pany with business operations in Sudan 1996 (PL 104- 172); and with revenues or assets linked to oil- o Investing in publicly traded companies related or power-production activities un- having ties to Iran’s petroleum-energy sec- der certain circumstances, or is complicit in tion places funds managed by the SBA at the Darfur genocide, or supplies military substantial financial risk. equipment within Sudan under certain conditions. A company designated as a “social-development company” that is not

24 CARLTON FIELDS, P.A.

complicit in the Darfur genocide is not In addition: considered a scrutinized company; and o The Public Fund is prohibited from acquir- o The definition of a scrutinized company ing securities of any company on the as it applies to Iran includes a company Scrutinized Companies List; with business operations that involve the Government of Iran or companies that o The divestment provisions do not ap- have revenues or assets linked to Iran ply to indirect holdings in actively and involve oil-related or mineral- managed investment funds. The Public extraction under certain conditions. Fund is required to send letters to the managers of such funds requesting that o Assemble a list of scrutinized companies they consider removing those companies that meet the definitions for Sudan and Iran from the fund or create an alternative as described in the bill. The list shall be fund. If an alternate fund is created, the updated quarterly; Public Fund is required to replace all applicable funds with the new fund; o Engage identified companies by providing written notice of their status as a scruti- o The Public Fund must provide the Scru- nized company and inform them of the tinized Companies List, within 30 days possibility that they may become subject of its creation, to each member of the to divestment by the Public Fund; Board of Trustees of the SBA, the President of the Senate, and the o Encourage identified companies to cease Speaker of the House of Representa- scrutinized business activities within 90 tives. At each quarterly meeting of the days or convert such operations to in- Board of Trustees thereafter, the Public active business operations. Compa- Fund must file a report including a nies with inactive business operations summary of correspondence with scruti- are encouraged to refrain from initiating nized companies and all investments di- active operations; and vested in compliance with the act. This report shall also be distributed to the U.S. o After 90 days following the Public Presidential Special Envoy to Sudan and Fund’s first written engagement no- to the U.S. Presidential Special Envoy to tice, if the company continues to have Iran; scrutinized active business operations, the Public Fund is required to sell, re- o The act expires if certain conditions are deem, divest, or withdraw all publicly met as specified in the bill. These condi- traded securities of the company. The tions include: SBA must complete this action within 12 months after the company’s most recent • A Congressional or Presidential decla- appearance on the Scrutinized Com- ration that the Government of Sudan panies List, subject to certain excep- has ceased attacks on civilians, tions. If a company with inactive op- that the genocide in Darfur has erations resumes active business opera- been halted for at least 12 months, tions, it is to be added back to the Scru- and that all sanctions imposed tinized Companies List immediately. against the Government of Sudan have been revoked; and

25 2007 LEGISLATIVE REPORT

• A Congressional or Presidential decla- “home inspector” means any person who ration that the Government of Iran has provides or offers to provide home in- ceased to acquire weapons of mass spection services for a fee or other com- destruction and that all sanctions pensation. “Home inspection services” against the Government of Iran are means a limited visual examination of one revoked. or more of the following readily accessi- ble installed systems and components of o The Public Fund may cease divesting or a home. reinvest in certain scrutinized companies if the value of all assets under o Establishing exemptions for governmental management by the Public Fund be- employees, certain licensed persons act- comes equal to or less than 99.50 per- ing within the scope of their license who cent, or 50 basis points, of the hypo- are not holding themselves out to the pub- thetical value of all assets under man- lic as licensed home inspectors, officers agement assuming no divestment had appointed by the courts, utility safety in- occurred. Such activities require an addi- spectors, and certified energy auditors. tional report to the Board of Trustees of the SBA, the President of the Senate, o Establishing licensure fees and require- and the Speaker of the House of Repre- ments. The bill provides that the applica- sentatives; and tion and examination fee shall be limited to $125, plus the per-applicant cost of o The act includes a severability clause. the examination to the department. The examination fee is refundable if the If approved by the Governor, these provi- applicant is determined ineligible to sit sions take effect upon becoming law. for the examination. The initial license fee and biennial renewal fee may not z SB 2224 exceed $200. Local Governments/ Authorized Investments o Licensure requirements that include the This bill authorizes local governments to invest completion of a 120 hour course of study surplus public funds in rated or unrated bonds, approved by the Department of Business notes, or instruments backed by the full faith and Professional Regulation. The depart- and credit of the government of Israel. ment to establish examination and licensing fees by rule. If approved by the Governor, these provisions take effect July 1, 2007. o Establishing examination and licensure requirements. An applicant must satisfy z SB 2234 good moral character requirements and Regulation of Building Inspection satisfy certain education and experience Professionals requirements. The department is required The home inspector portion of the bill pro- to approve courses of study in home in- vides requirements for practice or persons spection services. who engage in home inspections that include: o Providing for licensure by endorsement, continuing education requirements, and o Establishing definitions. The definition of the licensure of corporations and partner-

26 CARLTON FIELDS, P.A.

ships. The bill specifies the personal li- a building history and inspection to formu- abilities of corporate officers, partners, late an initial hypothesis. “Mold remedia- agents, employees, and owners for neg- tion” means the removal, cleaning, ligence, misconduct, or wrongful acts. sanitizing, demolition, or other treatment, including preventive actives of o Establishing prohibited acts that are con- mold or mold-contaminated matter of sidered misdemeanors of the first degree. greater than ten square feet that was not purposely grown at that location. o Establishing prohibited acts that are subject to disciplinary action by the depart- o Establishing licensure fees. The bill pro- ment. There is a maximum fine of vides that the application and examina- $5,000 per violation. tion fees each have a $125 cap, plus a per applicant cost the department o Providing that the department shall reis- may add to the examination fee if the sue the license of disciplined home in- department purchases the examination. spectors that have complied with final The fee for an initial license and bien- orders. nial license renewal may not exceed $200. o Providing for the disclosure of certain information to consumers prior to the home o Establishing examination and licensure inspector contracting or commencing a requirements. An applicant must satisfy home inspection. good moral character requirements and satisfy certain education and experi- o Requiring home inspectors to maintain a ence requirements. The department is commercial general liability policy in an required to approve courses of study in amount not less than $300,000. mold assessment and remediation. o Establishing requirements for home in- o Providing for licensure by endorsement, spection reports. renewals, and continuing education requirements. o Providing a grandfather clause that requires home inspectors to meet the re- o Providing for the certification of partner- quirements of the bill by July 1, 2010. ships and corporations. Mold o Establishes personal liability standards for The mold assessor and mold remediator por- individuals, partners, officers, agents, and tion of the bill provides requirements for prac- employees. tice or persons who engage in business as a mold assessor or mold remediator that in- o Establishing prohibited acts that are sec- clude: ond degree misdemeanors for first offenses, first degree misdemeanors for o Establishing definitions. The definition second offenses, and third degree of “mold assessment” means a process felonies for third or subsequent of- performed by a mold assessor that in- fenses. cludes the physical sampling and detailed evaluation of data obtained from

27 2007 LEGISLATIVE REPORT

o Allows DOR to issue temporary motor o Establishing disciplinary offenses and fuel licenses during a declared state of penalties, including a maximum fine of emergency or a declared disaster. $5,000 per count. o Provides that property owned by a limited o Providing a grandfather clause that reliability company, the sole member of quires mold assessors and mold reme- which is an exempt entity, is treated as if diators to meet the requirements of the the property were owned directly by the bill by July 1, 2010. exempt entity. The bill also allows a home warranty to be o Requires the property appraiser to set sold after a home inspection and mold as- forth the specific requirements an appli- sessment. cant failed to meet in order to qualify for If approved by the Governor, these provi- an exemption and to set forth the specific sions take effect July 1, 2010. reasons the applicant was determined to have failed to meet such requirements. If z SB 2482 the property appraiser’s notification fails Tax Administration to comply with the requirements, the de- CS/SB 2482 is the Department of Revenue’s nial is invalid. annual tax administration bill. The bill improves the administration and enforcement of our tax o Provides that property owned by an ex- laws and eases taxpayer compliance. Spe- empt entity will be deemed to be used for cifically, the bill: religious purposes if the institution has taken affirmative steps to prepare the o Authorizes the Department of Revenue property for use as a house of public (DOR) to waive the service fee for dishon- worship. ored tax payments. o Clarifies the procedures for DOR to ad- o Allows homeowners who lost their homes minister resale certificates issued to deal- in the 2004 hurricanes to keep their ers under the communications services homestead status if they begin rebuilding tax. by January 1, 2008. o Requires DOR to make adjustments to the o Provides relief for persons whose pri- proceeds of the communications services mary residence was damaged by the tax distributed under s. 202.18, F.S., that tornadoes which struck Florida on De- are necessary to reflect the proper amounts cember 25, 2006, and February 2, due to individual jurisdictions or trust 2007, by reimbursing up to $1,500 of funds. property taxes levied on storm-damaged homesteads as well as reimbursing up to o Removes the requirement that personal $1,500 of sales tax paid on the pur- representatives of deceased Floridians file chase or replacement of certain mobile zero estate tax returns during the period homes. that the federal Economic Growth and Tax Relief Reconciliation Act of 2001 is in o Reduces electronic filing thresholds from effect, eliminating an estimated 6,000 es- $30,000 to $20,000. tate tax returns annually.

28 CARLTON FIELDS, P.A.

o Authorizes DOR to issue a credit or re- o Authorizes DOR to bill Agency for fund for an overpayment of insurance Workforce Innovation for the full reim- premium tax when DOR determines a bursement of their indirect costs associ- credit or refund is due, even when a ated with the collection of UC taxes, in- refund has not been requested by the stead of the current 10% cap. This re- taxpayer. sults in a savings to the General Reve- nue Fund because the reimbursement o Clarifies that separately stated delivery from AWI is made from federal funds. charges that can be avoided at the option Under current law, costs above the 10% of the purchaser is exempt from sales and cap came from the General Revenue use tax, which according to DOR, is cur- Fund. (FY 2005-06 costs were 19.8%). rently exempt under DOR rule. If approved by the Governor, except as o Authorizes the department’s General Tax otherwise expressly provided in this act, Administration program to disclose tax- this act shall take effect July 1, 2007. payer information to the Department’s Child Support Enforcement (CSE) pro- z SB 2484 gram for purposes of administering the Lodging & Food Service CSE program. The taxpayer information Establishments will continue to remain confidential in the The bill increases the number of voting mem- CSE program. bers from five to seven for the advisory council that assists the Division of Hotels and Restau- o Directs DOR to work with Florida banks to rants (division) within the Department of Busi- develop a pilot program for identifying ac- ness and Professional Regulation on matters count holders with tax liens. affecting the food service and lodging industries. The bill provides that the Florida Restau- o Adds language to the criminal provisions rant and Lodging Association (formerly the for tax payments made by electronic Florida Hotel and Motel Association) may funds transfer that covers prima facie in- designate one representative to serve as a tent and identity when an electronic trans- voting member of the council. fer to DOR is used and either not honored or refused because the taxpayer, know- The bill changes the title of the person ap- ingly at the time of the transaction, does pointed from a college or university from “hos- not have sufficient funds on deposit or pitality administration educator” to “hospitality credit with the financial institution. education administrator,” and increases the term of this appointment from two to four o Establishes the process for document- years. The bill eliminates the position of “di- ing a taxpayers’ intentional failure or rector of education,” and authorizes the di- refusal to register and collect sales tax rector of the division to administer the Hospi- and create a penalty scale from a tality Education Program (HEP). The bill speci- misdemeanor to first degree felony fies that enhancement of school-to-career train- charge, depending on the amount of ing programs for students interested in pursu- uncollected tax, for a taxpayers’ re- ing careers in the food service or lodging in- peated or continued failure or refusal to dustry must be provided through the public register and collect tax after written notification from DOR.

29 2007 LEGISLATIVE REPORT

school system utilizing a nationally recog- tional Electric Code (2005), NFPA No. 70, nized curriculum approved by the division. adopted by reference within the code.

The bill specifies the expenses that may be Gravel or stone roofing systems funded by the grants. It provides that funds The committee substitute for the committee distributed by the council are subject to audit substitute establishes that prior to eliminating by the division. The bill increases from gravel or stone roofing systems from the $150,000 to $250,000 the maximum code, the commission must determine and amount of funds that the advisory council may document the following: designate annually to support school-to- career transition programs. o If there is a scientific basis or reason for eliminating gravel or stone roofing sys- It authorizes the division to adopt rules to pro- tems; vide criteria for grant program approval and the procedures for processing grant pro- o If eliminating gravel or stone roofing sys- gram applications. The bill specifies the tems will unnecessarily restrict or eliminate criteria for evaluating grant program appli- business or consumer choices in roofing cations. It limits grants to 4-year terms, with systems; funding provided on an annual basis. o If an alternative to gravel or stone roofing The bill provides that administrative fines as- systems is available and equal in cost and sessed by the Division of Hotels and Restau- durability, and rants may be used to fund the training of li- In consultation with the Fish and Wild- censees through the HEP. o life Conservation Commission, if elimi- If approved by the Governor, these provisions nating gravel or stone roofing systems take effect July 1, 2007. will affect the nesting habitat of any species of nesting birds. z SB 2836 Florida Building Commission The commission is authorized to adopt provisions to preserve gravel or stone roofing sys- Swimming Pools tems in future editions of the code, if neces- The committee substitute for the committee sub- sary to address the determinations made with stitute requires the Florida Building Commission regard to eliminating the roofing systems. (commission) to review requirements in the Alternative building plans review National Electric Code relating to bonding and inspection and grounding systems for swimming pools, The committee substitute for the committee and authorizes the commission to adopt a substitute provides the following definitions: rule providing for the use of an alternative method, and to integrate the alternative o “Audit” is defined as the process to method into the 2007 edition of the Florida confirm that building code inspection Building Code (code.) Until the rule is adopted, services have been performed by a pri- the use of a specified underground bonding vate provider. The definition specifies conductor is deemed a permissible alterna- that the term “audit” does not mean that tive to or equal to compliance with the Na- the local building official is required to

30 CARLTON FIELDS, P.A.

replicate an inspection service performed Building Code Compliance by a private provider. and Mitigation Program The Department of Community Affairs (de- o “Immediate threat to public safety and partment) is directed to develop the Florida welfare” is defined as a building Building Code Compliance and Mitigation code violation that could result in Program (program) to develop, coordinate, death, serious bodily injury, or signifi- and maintain education and outreach to per- cant property damage if allowed to sons required to comply with the code, and to continue. The definition does not limit ensure consistency in complying with code re- the authority of a local building official quirements, including methods of mitigating to issue a Notice of Corrective Action storm-related damage. The program replaces at any time during construction so the Building Education and Outreach Pro- long as the condition cited is shown to gram. be in violation of the code or in violation of approved plans. The Building Education and Outreach Council is abolished, and services and materials un- o “Stop-work order” is defined as the issu- der the new program will be provided by a ance of any written statement, directive, private, non-profit provider under contract or order specifying the reason for the with the department. Contract terms and ex- statement, directive, or order and speci- perience requirements are established for the fying the conditions under which work private provider. The commission is directed may resume. to provide by rule for the accreditation of courses relating to the code and also is re- Written contracts for inspection services may quired to establish qualifications of accredi- be executed by the property owner’s contractors and criteria for accreditation. The de- tor upon written authorization by the property partment is authorized to use funds from the owner. Private providers may change the contractor licensing application fees for the name of an authorized representative identi- new program. fied in a permit application without a revision to the permit, and a fee may not be State Product Approval charged for such change. Deficiency notices The committee substitute for the committee must be posted at a job site by a private pro- substitute requires that the certification method vider or a private provider’s authorized rep- for compliance for state product approval resentative, or a building department official, can only be used for products for which the when an item that does not conform to either code designates standardized testing. The the code or permitted documents is found. Re- commission is granted authority to adopt by inspections must be performed after corrections rule a schedule of penalties to be imposed are made and prior to the concealment of the against approved product validators who corrected item. Re-inspection fees or re-audit validate product applications in violation of fees may not be charged by a local jurisdic- state requirements. Additional rulemaking tion prior to a private provider’s inspection or authority is granted to the commission to for any administrative matter not related to a identify standards equal to or more stringent code violation. than those specifically adopted within the code to allow the use of products that comply with equivalent standards within the state.

31 2007 LEGISLATIVE REPORT

Fire safety inspection training directed to review the Florida Energy Code to requirements and certification evaluate the cost-effectiveness analysis that The committee substitute for the committee serves as the basis for energy-efficiency levels substitute provides that every fire safety infor residential buildings. The commission must spection conducted under state or local fire identify cost-effective means to improve en- safety requirements must be conducted by a ergy efficiency in commercial buildings, person who is at least 18 years of age and compare the findings to the International En- certified as having met the inspection training ergy Conservation Code and the American requirements set by the State Fire Marshall. Society of Heating, Air Conditioning, and Florida residency requirements are repealed. Refrigeration Engineers Standards, and pre- Additional criteria under which the State Fire sent a report to the Legislature no later than Marshall may deny, refuse to renew, sus- March 1, 2008. The report must include a pend, or revoke the certificate of a fire new energy-efficiency standard that may be safety inspector or a special state fire safety adopted for the construction of all new resi- inspector are established. dential, commercial, and government buildings. Legislative intent regarding the inspection of exposed underground piping and attached Miscellaneous provisions appurtenances, and the conducting of fire The committee substitute for the committee safety inspections by qualified persons is pro- substitute increases from 90 to 120 the num- vided. Certified contractors of fire sprinkler ber of days a newly employed person systems are authorized to obtain provisional can be a plan examiner or building in- permits with an endorsement for inspection, spector without certification. The commis- testing, and maintenance of water-based sion is authorized to approve certain fire extinguishing systems for certain em- amendments to the code more than once ployees. Such employees must achieve spe- every three years, including amendments that cific certification standards within two years address changes to federal or state laws, after receiving a provisional certification or and must issue or cause to be issued a formal cease performing inspections. After an initial interpretation of the code upon written appli- provisional permit expires, a certified con- cation by any substantially affected person, tractor must wait for two additional years contractor, or designer, or any group repre- before a new provisional permit can be senting a substantially affected person, con- issued to prevent the use of employees tractor, or designer. who never achieve the required certification level. Continuing education require- The commission is required to review modifica- ments for certified contractors are estab- tions relating to existing warehouses when lished. After July 1, 2008, the technical curricu- those modifications have been reviewed by lum for certification is at the discretion of the the commission’s technical advisory commit- State Fire Marshall and can be used to meet tee. The commission must take public com- other continuing education requirements or ment on the modifications, including the ne- requirements for maintaining certification. cessity of the modification, how it may affect the health, safety, and welfare of Florida resi- Energy efficiency dents, and the continuing need for any Flor- The commission, in consultation with the Flor- ida-specific requirement of the code which ida Energy Commission and other entities, is the modification seeks to repeal. The commis-

32 CARLTON FIELDS, P.A.

sion can adopt or modify the modification in the business requires the manufacturer’s con- response to the public comment received sub- sent. ject only to the rule adoption requirements of ch. 120, F.S. Section 320.3207, F.S., directs each warrantor to specify the obligations for prepa- If approved by the Governor, these provisions ration, delivery, and warranty service on take effect upon becoming a law. its products and requires a dealer to be reasonably compensated for warranty service z HB 7205 required by the warrantor at rates specified by RV Manufacturers/Distributors/ the warrantor. However, the compensation of Dealers/Importers a dealer for warranty labor may not be less The bill creates s. 320.3203, F.S., requiring than the lowest retail labor rates actually manufacturers to have a written agreement charged by the dealer. Dealer claims for war- with dealers to designate a market area ranty compensation may not be denied except within which a dealer has the exclusive right for cause, such as: performance of nonwar- to display or sell new RVs of a particular line- ranty repairs, noncompliance with warran- make. A dealer may not sell or display RVs tor’s published policies, lack of material outside of its market area unless the dealer documentation, fraud, or misrepresentation. has obtained an offsite/supplemental license and other criteria are met. The bill creates s. 320.3209, F.S., prohibiting a manufacturer from coercing or attempt- Section 320.3205, F. S., is created to estab- ing to coerce a dealer to purchase a product lish criteria under which a manufac- the dealer did not order, enter agreements, turer/dealer agreement may be terminated. or take any action which is unfair or unrea- A manufacturer is prohibited from termi- sonable to the dealer. A dispute resolution nating, canceling or failing to renew an process is created. agreement without good cause. A dealer may terminate, cancel, or not renew its The bill also establishes penalties in s. manufacturer/dealer agreement with or 320.3211, F. S., for violations of the provi- without cause by giving the manufacturer 30 sions of the act and amends s. 320.8225, days’ notice. F.S., to require RV distributors and importers to annually obtain a license from the If an agreement is terminated by the manu- DHSMV, subject to the same conditions as facturer without cause or by the dealer for RV manufacturers. cause, the dealer may cause a manufacturer to repurchase all new RVs, manufacturer’s If approved by the Governor, these provi- accessories and parts, and special tools, cur- sions take effect October 1, 2007. rent signage, and other equipment and ma- chinery which can no longer be used in the normal course of business.

The bill creates s. 320.3206, F.S., prohibiting a manufacturer from disapproving the change or sale of a dealership except under certain circumstances. Any succession of a dealership to a family member involving a relocation of

2007 Florida Legislature Post-Session Report

Education & Workforce

CARLTON FIELDS, P.A.

EDUCATION & WORKFORCE z SB 412 Education/Children of POWs or MIAs The bill amends s. 295.015, F.S., to extend educational opportunity benefits at state expense to the dependent children of Florida resident parents who have been declared prisoners of war (POWs) or missing in action (MIA) since the Vietnam era. The bill includes the dependent children of parents who have been classified as a POW or MIA while serving in the Armed Forces of the United States House Speaker Marco Rubio, R-Miami, left, looks over the or in the capacity of civilian personnel cap- House chamber with Senate President Ken Pruitt, R-Port St. tured while serving with the consent or au- Lucie, right, while Senators enter for their opening day joint thorization of the United States Government. session of the Legislature on Tuesday, March 6. (House photo by Mark Foley) The bill reduces the parent’s Florida residency requirement from five years to one If approved by the Governor, these provi- year prior to the event that caused the parent sions take effect July 1, 2007. to be classified as a POW or MIA. z If approved by the Governor, these provi- HB 461 sions take effect July 1, 2007. High School Athletics/Drug Testing Contingent upon funding by the Legislature, z SB 450 this bill requires the Florida High School Ath- Florida Teachers Lead Program letic Association (FHSAA) to implement a 1- Stipend/Pre-K year anabolic steroid testing program for 9th This bill would expand eligibility for the Flor- through 12th grade student athletes who par- ida Teachers Lead Program Stipend that pro- ticipate in football, baseball, or weightlifting vides funds to full-time certified classroom competitions at member schools. Public and teachers for the purchase of classroom ma- private schools must consent to the program terials and supplies to be used for instruction. as a prerequisite to membership in FHSAA Under the bill, certified, full-time teachers of under this bill. prekindergarten students who are funded The FHSAA board of directors is required to through the Florida Education Finance Pro- contract with an accredited testing agency. gram (FEFP) and certified, full-time teachers in Regarding actual testing, the bill requires that public charter schools would become eligible the names of all competing students be pro- for the Florida Teachers Lead Program Sti- vided by each member school to the FHSAA, pend. A job-share classroom teacher who which will forward the names to the testing shares a full-time equivalent position with an- agency. From this group, a maximum of 1 other teacher for the same teaching assign- percent of students must be randomly tested. ment would be eligible to receive a prorated To compete in football, baseball, or weight- share of the stipend. lifting, students are required to consent to testing in writing.

37 2007 LEGISLATIVE REPORT

The bill provides that an athlete who tests nation if a district-operated school earns a positive for steroids must be suspended from grade of “F” during the 3-year period. all athletic competition and practice for 90 days and may not be reinstated until he or An academically high-performing school dis- she tests negative for steroids. Additionally, an trict is exempt from the following: program athlete who tests positive for steroids will be expenditure levels in the Florida Education subject to repeated tests for the duration of Finance Program (FEFP) for kindergarten his or her high school athletic eligibility. through grade 12; annual K-12 comprehensive reading plans; requirements for covered The bill specifies procedures for an appeal of walkways for relocatable facilities (portables); the test findings, and authorizes challenges to the use of relocatable facilities; procurement of findings and penalties by the member school instructional materials through the state deposi- or the student. The FHSAA is required to pro- tory; and restrictions relating to the use of 50 vide to the Legislature a report on the steroid percent of the instructional materials alloca- testing program by October 1, 2008. tion.

If approved by the Governor, these provi- The bill also provides for renewing the desig- sions take effect July 1, 2007. nation at the end of three years and specifies a district’s requirements for reporting academic z HB 511 performance to the State Board of Education School Districts (SBE) and the Legislature.

High Performing Districts Discretionary Capital Improvement The bill provides for designating academically (2-mill) Flexibility high-performing school districts, which must The bill authorizes districts to use the 2-mill dis- meet the following criteria: cretionary capital improvement millage for the payment of premiums for property and casu- o Earn a district grade of “A” for two con- alty insurance for the purpose of insuring the secutive years, beginning with the 2004- educational and ancillary plant if the district 2005 school year; meets all of the following: o Have no district-operated school that o Has met class size reduction require- earns a grade of “F”; ments for the current year; o Comply with all class size requirements; o Has received an unqualified opinion on its and financial statements for the preceding three years; o Have no material weaknesses or instances of material noncompliance noted in the o Has no material weakness or instances of annual financial audit. material noncompliance noted in an audit for the preceding three years; and The designation may be retained for three years, if the district complies with all the initial o Certifies to the Commissioner of Education eligibility criteria and earns at least a grade that all of the district’s instructional space of “A” for two years within a 3-year period. needs for the next five years can be met However, a district may not retain the desig- from capital outlay sources the district

38 CARLTON FIELDS, P.A.

reasonably expects to receive during the The Commissioner of Education must promi- next five years from local revenues and nently post on the department’s website links to from currently appropriated state facilities the department’s internet-based clearinghouse funding or from alternative scheduling or for physical education professional develop- construction, leasing, rezoning, or techno- ment, school wellness and physical education logical methodologies that exhibit sound policies and related information, and other management. Internet sites that provide professional development for elementary teachers of physical The bill provides that operating revenues that education. The links must provide elementary are made available through the payment of teachers with information concerning current property and casualty insurance premiums physical education and nutrition philosophy from funds generated through the 2-mill may and best practices. be expended only for nonrecurring operational expenditures of the school district. The bill requires the Department of Education to review and revise the Sunshine State Stan- The bill provides that before a district school dards related to physical education skills dur- board may levy discretionary millage for the ing the 2007-2008 school year to reflect state- payment of property and casualty insurance of-the-art philosophy and practice. The revised premiums it must publish notice as provided standards must emphasize the role of physical in law. education in promoting the knowledge, skills, and attitudes that prepare students to make If approved by the Governor, these provi- healthy lifelong nutrition and physical fitness sions take effect upon becoming law. choices. z HB 967 If approved by the Governor, these provisions Physical Education take effect upon becoming law. The bill requires each district school board to provide 150 minutes of physical education z SB 1060 each week for students in kindergarten Educational Facilities through grade 5. The elementary school prin- This bill eliminates the requirement that $105 cipal may designate any instructional per- million of recurring documentary stamp tax sonnel to provide the physical education. revenues be transferred to the Public Educa- tion Capital Outlay and Debt Service Trust The bill defines the term physical education to Fund to be used for the Classrooms for Kids mean “the development or maintenance of Program and the High Growth County District skills related to strength, agility, flexibility, Capital Outlay Assistance Grant Program. movement, and stamina, including dance; Nonrecurring appropriations, instead of re- the development of knowledge and skills recurring transfers, may be used to fund fixed garding teamwork and fair play; the devel- capital outlay for these programs. opment of knowledge and skills regarding nutrition and physical fitness as part of a The bill also amends s. 203.01(1)(c), F.S., to healthy lifestyle; and the development of speed up receipts of gross receipts utility tax positive attitudes regarding sound nutrition revenues by advancing the remit date from and physical activity as a component of per- the last day of the month to the 20th day of sonal well-being.” each month. This action provides a one-time

39 2007 LEGISLATIVE REPORT

increase in funds available to be appropriated z SB 1226 for public education capital outlay. Merit Award Program/School Board The bill (Chapter 2007-3, L.O.F.) creates a Finally, the bill revises s. 1013.64(1)(a) and voluntary performance pay program, the (3)(a), F.S., to provide that, in calculating Merit Award Program for instructional per- funds for public education capital outlay pur- sonnel and school-based administrators. In poses, modular noncombustible facilities shall order to be eligible for funding under the have a 35-year life. In addition, a school dis- program, school districts must adopt plans that trict’s capital outlay FTE shall be comprised of would designate the outstanding performers, K-12 students for whom the district provides who would receive a merit-based pay sup- educational facilities. plement of at least 5 percent, but no more than 10 percent of the district’s average If approved by the Governor, these provi- teacher’s salary. School districts would de- sions take effect July 1, 2007. termine eligibility for the merit-based pay supplement based upon student academic z HB 1161 proficiency, learning gains, or both as meas- High School to Business Career ured by statewide standardized assessments Enhancement Act and local district-determined assessments, as This bill creates the High School to Business well as other performance factors. At least 60 Career Enhancement Act and encourages percent of the overall personnel evaluation district school boards to adopt policies to al- must relate to student performance and up to low internships for high school students 40 percent must relate to professional prac- through employers that partner with the tices, including the ability to implement dif- school district. High school internships must ferentiated instruction strategies to meet stu- be consistent with the career goals of each dent needs for remediation or acceleration student participant. At the conclusion of the and the ability of administrators to manage internship, a student evaluation must be con- so as to maximize resources used for direct ducted to monitor the academic value of the instruction. internship. Beginning with the 2007-2008 school year, Qualified internships must last a minimum of participating school districts must be able to eight weeks but no more than 20 consecutive administer end-of-course examinations based weeks, and would allow students to work up on the Sunshine State Standards. The state- to 20 hours per week. A student may only wide standardized assessment, the College participate in one internship per year. Board Advanced Placement Examination, the School districts may authorize up to 100 in- International Baccalaureate Education Exami- ternships each school year. The number of in- nation, the Advanced International Certificate terns per employer is contingent upon the of Education examination, or examinations number of employees of the employer, with a resulting in national industry certification maximum of four interns allowed. recognized by the Agency for Workforce Innovation satisfy the end-of-course examina- If approved by the Governor, these provi- tion requirement. sions take effect July 1, 2007.

40 CARLTON FIELDS, P.A.

schools would be required to offer a rigorous The bill sets forth the components of plans, and relevant curriculum that leads to: allows the participation of charter schools, provides for an annual compliance review by 1. industry-recognized certification in high- the Commissioner of Education, and requires demand occupations; status reports to the Legislature and the Gov- ernor on the implementation of pay plans. 2. the award of a standard high school di- ploma; and The bill repeals the Special Teachers are Re- warded (STAR) proviso and reappropriates 3. opportunities for high school students to $147,500,000 to the Department of Educa- simultaneously earn college credit. tion (DOE) for FY 2006-2007 to allocate to school districts for performance pay. A dis- School districts must develop, in collabora- trict must use the funds for the following pur- tion with local workforce boards and the poses: postsecondary community, strategic 5-year plans that objectively address the needs of lo- o To fund a STAR performance pay plan; cal and regional workforce through the development and implementation of academies. o To fund a performance pay plan Two or more school districts are authorized to adopted under s. 1012.22, F.S., if a dis- collaborate in developing and offering career trict amends the plan to conform to the academies, provided the strategic plan is bill related to eligibility criteria, pay approved by the Agency for Workforce Inno- structure, and assessments. Otherwise, a vation (AWI) and certain requirements are district may only disburse an amount met. The strategic plan must include provi- equal to what the district disbursed under sions for at least one career and professional the plan for the 2005-2006 school year; academy to be operational in the school dis- or trict at the beginning of the 2008- 2009 school year. o To fund a performance pay plan approved by the district school board under the pro- The State Board of Education must establish visions of the bill. an expedited process for the continuous review of newly proposed rigorous and relevant These provisions became law upon approval core high school courses and decisions regard- by the Governor on March 29, 2007. ing course eligibility must be made within 60 z SB 1232 days. Approved courses would be included Career & Professional Education in the Course Code Directory and also con- This bill creates the Florida Career and Pro- sidered for possible dual enrollment and fessional Education Act to provide a state- postsecondary credit. wide planning partnership between business The bill requires AWI to identify appropriate and education communities, to expand and industry certification based on the highest na- retain high-value industry, and sustain a vi- tional standards available. Local work force brant state economy. Career and professional boards and academies may request additions academies would enable students to matricu- to the list of industry certifications, provided late easily to both postsecondary education requests are based upon high-demand la- and the workforce. Participating public high bor needs of the regional workforce econ-

41 2007 LEGISLATIVE REPORT

omy. The AWI will publish annually an up- other state entities. Additionally, when operat- dated list of industry certifications to be used ing pursuant to legislative, rather than consti- within the career academies. tutional, authority, the Board of Governors and the university boards of trustees are re- The Department of Education must work with quired to comply with provisions of the Ad- Workforce Florida and Enterprise Florida in ministrative Procedures Act. the collection and analysis of academic achievement and performance data of acad- The State Board of Education and the Board emy students. An evaluation plan and self- of Governors are required to collaborate in assessment tool would be required to deter- certain areas of responsibility, including mine outcomes such as graduation rates, postsecondary enrollment and state financial achievement of industry certification, postsec- aid plans. The bill also requires a coordi- ondary enrollment, satisfaction of business nated effort regarding articulation, to facilitate and industry, employment rates, earnings, a smooth progression for students transition- and awards of scholarships and postsec- ing from community colleges, or qualifying ondary credit. private institutions, to state universities.

Finally, the Florida Education Finance Program The Board of Governors, or its designee in (FEFP) is revised to provide supplemental certain instances, is tasked with duties in weighted funding for students enrolled in ca- the following areas: ensuring access to gen- reer and professional academies, provided the eral education courses, accounting for ex- instruction leads to industry certification for penditures, preparing legislative budget re- enrolled students upon academy completion. quests, developing strategic plans, maintaining an effective information system, establish- If approved by the Governor, these provi- ing an employee personnel system, and ad- sions take effect July 1, 2007. ministering a program for facility maintenance and construction. z SB 1270 Higher Education This bill specifies that new colleges, schools, or This bill is the result of a comprehensive other programs leading to a degree offered as review of law regarding governance in a credential for a specific license granted by higher education. The bill delineates powers law require specific legislative approval and duties in higher education of the Board where they are funded through tuition and of Governors of the State University System. fees or appropriation. It also transfers responsibilities from the State Board of Education or the Commis- This bill prohibits the Board of Governors from sioner of Education, to the Board of Gover- assessing fees, and universities from charging nors or the university boards of trustees, fees that are not authorized by law. where the duty relates to a state university and it is appropriate to do so. If approved by the Governor, these provisions take effect July 1, 2007. This bill establishes the Board of Governors and the university boards of trustees as part of z HB 1301 the executive branch of government. As such, Workforce Services these entities are subject to various ethics and This bill amends portions of the workforce stat- accountability standards, as is required of utes, ss. 402.305, 445.024, and 445.032,

42 CARLTON FIELDS, P.A.

F.S., in order to align them with the federal o Inserts language into the transitional Temporary Assistance to Needy Families child care statute, s. 445.032, F.S., to (TANF) program. These TANF revisions reflect emphasize that child care is only avail- changes made by the Department of Health able to assist those seeking employment, and Human Services (HHS) following the attempting to retain employment or at- passage of the federal Deficit Reduction tempting to improve their employment Act of 2005. Specifically, CS/HB 1301 prospects. does the following: o Amends s. 402.305, F.S., to correct o Deletes lengthy descriptions of work cross-references and to replace the term requirements for TANF recipients in s. “community service work experience ac- 445.024, F.S. This change will align tivity” with “community service pro- state practice to federal work require- gram” in order to conform to the proper ment definitions, which were not previ- federal term. ously detailed by federal law, but are now specifically outlined in the HHS in- If approved by the Governor, these provi- terim final rule. sions take effect upon becoming law.

2007 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

GENERAL GOVERNMENT z HB 99 Nonprofit Organization/Solicitation/ Streets This bill, the Iris Roberts Act, exempts organizations qualified under s. 501(c)(3) of the Internal Revenue Code and registered under ch. 496, F.S., as well as those persons or organizations acting on their behalf, from local government permitting requirements for solicitation along roadways not maintained Policy and Budget Council Chairman Rep. Ray Sansom, R-Fort by the state, provided certain conditions and Walton Beach, unveils an overview of the House budget proposal with the help of a bar graph on Wednesday, April 11. requirements are met. (House photo by Mark Foley)

Specifically, the bill requires sponsoring enti- o The bill also establishes a number of op- ties to provide the local government with the erational requirements governing chari- following information: table solicitation activities along non- o The names and addresses of those con- state-maintained roadways. Persons par- ducting the solicitation and of those re- ticipating in the solicitation activities must ceiving the contributions no fewer than be at least 18 years of age and possess 14 days prior to the proposed solicita- picture identification. A local government tion; may stop solicitation activities if any of the conditions or requirements discussed o A safety plan for persons participating in above are not met. the solicitation and the motoring public; If approved by the Governor, these provi- o A detailed description of the location sions take effect July 1, 2007. and hours of the solicitation activities; z SB 124 o Proof of a commercial general liability Custom Vehicles & Street Rods insurance policy against bodily injury This bill amends s. 320.0863, F.S., adding and property damage arising from the the term “custom vehicle” and its definition. solicitation activities, with a limit of no A custom vehicle is defined as a vehicle 25 less than $1 million per occurrence; and, years old or older and of a model year after 1948 or was manufactured to resemble a o Proof that the organization is either regis- vehicle 25 years old or older and of a model tered with the Department of Agriculture year after 1948; and has been altered from and Consumer Services, pursuant to s. the manufacturer’s original design or has a 496.405, F.S., or is exempt from regis- body constructed from non-original materials. tration. This bill requires the creation of a special, new license plate for those vehicles that meet the above definition of “custom vehicle.” To

47 2007 LEGISLATIVE REPORT

register a street rod or custom vehicle, the o Trucks with a net weight of 5,000 owner shall apply to the Department of pounds or less Highway Safety and Motor Vehicles by sub- o Heavy trucks with a gross vehicle weight mitting a completed application form and of 5,001 pounds or more, but less than providing: 8,000 pounds o Motor vehicles for hire o The license tax prescribed by s. o Trailers for private use 320.08(2)(a), F.S., and a processing fee o Trailers for hire of $3. o Recreational vehicles o Park trailers o A written statement the vehicle will not be o Travel trailers used for general daily transportation. o 35 to 40 foot fifth wheel trailers o Mobile homes o A written statement the vehicle meets state equipment and safety requirements Section 3 amends s. 320.06, F.S., to extend for the year listed as the model year on the current five-year replacement cycle for li- the certificate of title. cense plates to six-years and increases the current $10 license replacement fee to $12. If approved by the Governor, these provi- The Department of Highway Safety and Mo- sions take effect July 1, 2007. tor Vehicles is required to stagger the imple- z HB 275 mentation of the 6-year license plate replacement cycle. More specifically, the bill Vehicles/Mobile Homes/ provides a six-year license plate issuance Vessels/Registration The following is a section-by-section analysis period, with the current $2 per year fee paid of the bill: each year to be credited towards the next $12 replacement fee. The expiration of the Section 1 amends s. 320.01, F.S., to define license plate is based on the applicant’s ap- an “extended registration period” as a period propriate registration period. The bill also of 24 months during which a motor vehicle provides license plates equipped with valida- or mobile home registration is valid. Also, tion stickers are subject to the extended 24- the definition of “registration period” is rede- month registration period. Further, this bill fined to include the option of a 24-month provides that for each extended registration period. period, a validation sticker showing the year of expiration shall be issued and is valid for Section 2 amends s. 320.055, F.S., to estab- not more than 24 months. lish extended registration and renewal periods for motor vehicles and mobile homes and clari- Section 4 amends s. 320.07, F.S., to author- fies that the following vehicles are eligible for ize the biennial renewal of motor vehicle and the extended 24-month registration period mobile home registrations and to require and may be renewed biennially: payment of double the amount of license tax, service charge and surcharge on annual reg- o Motorcycles istrations which equates to the amount that o Mopeds would normally be paid for two 12-month o Automobiles for private use registrations and clarifies semiannual registrations.

48 CARLTON FIELDS, P.A.

Section 5 amends s. 320.07 1, F.S., to clarify Eligible counties are defined by s. the registration period for a motor vehicle or 288.0656, F.S., which defines a “rural mobile home may not exceed 27 months. community” as a county with a population of 75,000 or less; or a county with a popula- Section 6 creates s. 320.203, F.S., to pro- tion of 100,000 or less that is a contiguous vide for the disposition of the biennial regis- to a county with a population of 75,000 or tration revenues. After the distributions pur- less. Currently there are 34 counties eligible suant to s. 320.20(1), (2), (3), and (4) are for this program. Counties are responsible for fulfilled, an amount equal to 50 percent of sign construction, maintenance, and opera- the biennial registration revenues shall be re- tion of the program. The bill authorizes coun- tained in the Motor Vehicle License Clearing ties and municipalities to establish permit fees Trust Fund until July 1. After July 1 of the sub- to offset the associated costs of the pro- sequent fiscal year, an amount equal to 50 gram. The bill does not create a proprie- percent of revenues collected from biennial tary or compensable interest in any sign site registrations shall be retained. This revenue or location. Permits may be terminated or distribution smoothing will ensure that reve- signs relocated, as necessary, for construc- nue collected for 50 percent of the optional tion, improvement of transportation facili- 2-year registration is distributed in the ties, or improved traffic control or safety. same manner and in the same amounts as revenues currently collected for annual vehi- The Florida Department of Transportation is cle registrations. authorized to adopt rules to establish qualifications, construction standards, sign sites, and Section 7 amends s. 328.72, F.S., to allow other criteria. vessel owners the option of an extended registration period of 24 months. If approved by the Governor, these provisions take effect July 1, 2007 According to the Revenue Estimating Confer- ence, implementation of this bill in January z HB 537 2008 will generate approximately $36.8 mil- Elections lion in nonrecurring revenue in fiscal year This bill is an omnibus elections package that 2007-08, with a recurring increase of $9.7 addresses numerous issues, including: million in subsequent fiscal years. o Primary Dates for the Presidential Prefer- ence and the Fall Primaries If approved by the Governor, these provisions Paper Ballots for Voting Systems take effect January 1, 2008. o o Initiative Petition Signature Gathering z HB 431 and Revocation Tourist-oriented Directional Sign o Resign-to-Run Exemptions The bill establishes a tourist-oriented directional o Write-In Candidate Qualifying sign program to provide travel directions to o Minor Political Party Primary Elections businesses, services, and activities in rural o Third Party Voter Registration Group Re- counties. Signs on the state highway system quirements and Penalties must comply with the federal standards estab- o Absentee Ballot Requests lished in the tourist-oriented directional sign o Political Party Internal Procedures program outlined in the Manual on Uniform o Florida Elections Commission Procedures Traffic Control Devices. and Standards of Proof

49 2007 LEGISLATIVE REPORT

o Campaign Finance lot production (should the technology prove successful). Third Party Registration Organizations The bill requires the Secretary of The bill redefines a third party registration State/Department of State to negotiate the organization to include political parties. The disposition of unnecessary touchscreen vot- bill lowers the amount of fines applicable to ing equipment and to purchase new equip- third party registration organizations for viola- ment for certain counties. The bill authorizes tions and caps the total amount of fines at an expenditure of approximately $27.86 $1,000 per calendar year. The bill also pro- million from the Grants and Donations Trust vides for the waiver of fines upon a showing Fund (federal Help America Vote Act, or of force majeure or impossibility of perform- “HAVA,” monies) to be used for the purchase ance. of optical scan voting equipment ($22.86 million) and ballot-on-demand technology Primary Dates ($5 million), including optical scan tabulators, The bill moves the date of the Florida presi- to replace touchscreen equipment. Any dential preference primary from the second money realized by the sale or other disposi- Tuesday in March (March 11, 2008) to the tion of a county's existing touchscreen voting last Tuesday in January (January 29, 2008) of equipment, after paying off the county's cur- a presidential election year. It also authorizes rent indebtedness, will be deposited back to municipalities, by ordinance, to move mu- the Trust Fund up to and including the amount nicipal elections currently scheduled for of state funding the county has accepted. March 2008 and thereafter to coincide with the new presidential preference primary Finally, the bill replaces an unused audit provi- date. sion in Florida law with a requirement that local canvassing boards complete a public, The bill also moves Florida’s fall primary up random, post-election audit of one to two per- one week to 10 weeks before the general cent of the precincts in a randomly-selected election. race on the ballot. The board must make the audit results public by the 7th day after the Voting Systems/Paper Ballots The bill requires all voters, except disabled election, which allows time for the filing of voters, to cast a marksense ballot on an opti- an election contest; and, file a report with cal scan voting system beginning with the fall the Department of State no later than 15 primary election of 2008; disabled voters days after the audit is complete. may continue to vote on the existing touch- Pre-Registration to Vote screen equipment through 2012, at which The bill expands the current under-l8, voter time they must be provided a means to cast pre-registration system — from pre- an independent, marksense ballot. registering 17 year-olds to pre-registering persons to vote when they reach their 17th Further, the bill allows the use of ballot-on- birthday or receive a valid Florida driver’s demand technology to produce early-voting license, whichever occurs first. and absentee marksense ballots, and authorizes the Secretary of State to permit counties Voter Registration to use ballot-on-demand for election-day bal- The bill provides the voter with notice and an opportunity to present evidence necessary

50 CARLTON FIELDS, P.A.

prior to election day to validate the identifica- cal area represented by the office tion number on the voter’s registration appli- sought. cation. The bill also allows a voter who votes a provisional ballot to present evidence nec- o Provides that single county special dis- essary to validate his or her identification trict candidates qualify with the county number on the voter registration application supervisor and multicounty district can- within two days after the election instead of 3 didates qualify with the Department of days. The bill provides elections officials with State. 13 days to enter voter registration information rather than 15 days. o Exempts special district candidates from appointing a campaign treasurer or des- Resign-to Run Exemptions ignating a primary campaign deposi- The bill exempts persons seeking federal of- tory if the candidate does not collect fice from the resign-to-run law, s. 99.0 12, contributions and has only the filing or F.S. signature verification fee as an expense.

Candidate Oath o Requires certifications for federal, state, The bill exempts federal candidates from the multicounty district, or multicounty spe- current candidate and public employee oath cial district candidates qualifying by pe- and creates a new candidate oath for fed- tition to be submitted to the Division of eral candidates. Elections by the 7th day prior to the 1st day of qualifying for the office sought. Candidate Qualification With regard to candidate qualification, the o Requires write-in candidates to reside in bill does the following: the district of the office sought at the time of qualifying. o Sets the qualification period for state, multicounty district, county, district, and Minor Political Parties special district offices, with the excep- The bill requires minor political parties to hold tion of judicial offices, federal offices, primary elections instead of designating its and the offices of state attorney and nominees. public defender, between the 71st and 67th days prior to the primary election. County Commissioners The bill provides that a county commissioner o Sets the qualification period in appor- is deemed “elected” at the time the election tionment years for federal candidates results are certified. between the 71st and 67th days prior to the primary election. Canvassing Returns With regard to canvassing returns, the bill o Provides a uniform method of qualifying does the following: for special district offices, which includes either paying a $25 qualifying fee not o Conforms the canvassing of special elec- required to be drawn from the cam- tions to that of general elections. paign account, or qualifying by the o Provides that ballot canvassing may begin petition method by obtaining 25 sig- six days prior to the election, rather than natures of voters from the geographi- four days prior to the election, in a local

51 2007 LEGISLATIVE REPORT

all mail-ballot election. signature on the form is verified as valid. o Provides that absentee ballots may be can- o Requires the form to contain the elector’s vassed six days prior to the election, original signature, the date the form was rather than four. signed as recorded by the elector, the elector’s name, address, county, and o Provides an additional 19 hours for the the voter identification number or date of submission of final returns after a general birth. election from 5 p.m. on the 11th day after the election to noon on the 12th day. o Requires the elector, at the time of signing the form, to be a registered elector of the o Requires county canvassing boards to county in which his or her signature is submit preliminary election returns to the submitted. Department of State on election night in a format specified by the department. o Provides that a signature may be revoked within 150 days of the date it was signed o Requires provisional ballots to be in- by the lector by submitting a signed peti- cluded in the first set of unofficial returns. tion-revocation form to the appropriate supervisor. o Provides that the unofficial returns must be submitted by noon on the fourth day after o Provides that petition-revocation forms and a general election, or any election other the process by which revocation form sig- than a primary election, rather than the natures are obtained, submitted, and veri- fifth day after an election. fied are subject to the same relevant requirements and timeframes as petition o Provides an extra day for the submission of forms. the second set of unofficial returns after a general election in which a recount was o Requires supervisors to provide petition- conducted. revocation forms to the public at all main and branch offices. Initiative Petitions With regard to initiative petitions, the bill o Provides that petition-revocation forms does the following: must be filed with the supervisor by Feb-

ruary 1st preceding the next general elec- Requires petition forms to be signed by o tion; however, if the initiative is not certi- the constitutionally required distribution fied for ballot position in that election, the of electors in addition to the constitution- revocation forms must be filed by Febru- ally required number of electors currently ary 1st preceding the next successive gen- required under law. eral election. o Requires supervisors to verify signatures o A fee of 10 cents or the actual cost of within 30 days of receiving petition verifying such revocation signature, forms. whichever is less, must be paid to the supervisor in order for the signature to o Requires supervisors to record in the state- be verified. wide voter registration system the date each form is received and the date the

52 CARLTON FIELDS, P.A.

o The supervisor must record each valid and Use of Names Associated with verified revocation form in the statewide Political Parties voter registration system. The bill provides that political parties may file with the Department of State the names of Identification at the Polls groups associated with that party which may The bill removes the following forms of photo not be used by another organization or entity identification acceptable at the polls: without obtaining prior written permission o Employee badge or identification from the party’s executive committee chair. o Buyer’s club identification Political Parties Precinct-Level Reporting The bill sets the qualification period for can- by Supervisors didates for a state or county executive com- The bill requires supervisors to report in an mittee office of a political party between the electronic format specified by the Depart- 71st and 67th days prior to the primary elec- ment of State precinct level election results tion. The bill requires a state committeeman within 35 days, rather than 75 days, after a and a state committeewoman to be a mem- special, primary, presidential preference pri- ber in good standing of the county executive mary, municipal, and general election. The committee in which the man or woman is a bill provides that the precinct level election registered voter. The bill also expands the results must separately record for each pre- membership of a state executive committee to cinct all demographic data associated with include 10 state registered voters appointed each precinct at book closing for each elec- by the Governor if the voters are members tion and individual vote history in addition to of the party and if the Governor is a mem- current data requirements. The bill requires ber of the party. this data to be cross-referenced by political party and other demographic information as Removal or Suspension of Certain defined by the Department of State. The bill Party Members mandates that the department create a uni- The bill expands the authority of the state form system for the collection and reporting executive committee chair to remove or of this data. suspend certain state or county party officers or members for violation of the oath of Absentee Ballots office or for activities that either interfere with The bill provides that an absentee ballot re- the party’s activities or cause harm to the quest is effective for all elections through the name or status of the party. next two general elections after the request is made, rather than just for the elections in the Campaign Treasurers for Candidates calendar year in which the request was and Political Committees made. The bill requires supervisors to send The bill removes the requirement that a cam- absentee ballots overseas at least 45 days paign treasurer or deputy treasurer for a politi- before the general election. The bill also pro- cal committee or candidate be a Florida reg- vides an extra day for delivery of an absen- istered voter. tee ballot to a voter’s designee, from 4 days Committees of Continuous Existence before an election to 5 days. The bill allows groups to collect dues from its members and forward those dues to the committee of continuous existence, which

53 2007 LEGISLATIVE REPORT

must report the dues as coming from the Florida Elections Commission member who originally paid the dues. With regard to the Florida Elections Commis- sion, the bill does the following: Valuation of Private Air Travel The bill provides that travel in a private aircraft o Requires sworn complaints to be based on must be valued at the actual cost of per person personal information or information other commercial air travel for the same or a sub- than hearsay. stantially similar route. o Provides that if an expense item is reim- Contribution Limits bursed before a complaint is filed alleging The bill allows contributions to political com- violations regarding that expense item, mittees and committees of continuous exis- the commission may not investigate the tence through affiliated organizations. The allegations contained in the complaint. affiliated organization may commingle the contributions with its own funds and write a o Provides that a complaint may be with- single check to the political committee or the drawn, before a probable cause hear- committee of continuous existence for the ag- ing is held, if good cause is shown. gregate amount of the contributions provided the funds are identified as intended to be con- o Repeals s. 106.37, F.S., relating to the tributed to the political committee or commit- definition of a “willful violation.” tee of continuous existence. Contributions re- Provides that willfulness is a determina- ceived in this manner must be reported by the o tion of fact. political committee or committee of continuous existence as having been made by the origi- o Allows a respondent to request a hearing nal contributor. on the determination of willfulness. Cash Contributions o Revises the procedures, notice require- The bill prohibits a person from making or ments, and scope of inquiry of the com- accepting a cash contribution in excess of mission after a complaint has been filed. $50 instead of $l00. o Requires the commission to attempt to Political Advertisements reach a consent agreement with the re- The bill requires a specific disclosure for 3- spondent if probable cause is found to pack ads. These ads must state: exist. o That they are paid political advertisements; o Requires that a hearing be conducted be- o The names of those who sponsored and fore an administrative law judge when the paid for the ad; and commission files allegations unless the al- o The names of persons, their party affilia- leged violator elects to have a formal or tion, and offices sought in the ad. informal hearing before the commission or elects to resolve the complaint through a Candidacy Polls and Surveys consent order. The administrative law The bill provides that committees of continuous judge is required to enter a final order existence and electioneering communication subject to appeal. organizations may conduct polls or surveys relating to candidacy for public office.

54 CARLTON FIELDS, P.A.

bill allows a broader range of security pro- o Requires the commission to maintain a viders to display green and amber lights. searchable database of all final orders Many private security providers in Florida and agency actions. are proprietary services and not required to Distribution of Election Campaign be licensed. Such services are authorized by Financing Trust Funds s. 493.6102(4), F.S. The bill requires the distribution of Election Campaign Financing Trust funds to begin on In addition, the bill allows the color green the 32nd day prior to the primary. to be displayed by such security vehicles, when current statute only allows the color Municipal Officers amber. The bill specifies either color may be The bill provides that if a person is selected no greater than 50 percent of the lights dis- to fill a temporary vacancy in a municipal played. office due to the suspension of the officeholder, that person may serve the remainder The bill also allows security vehicles to dis- of the officeholder’s term if the officeholder is play the green and amber lights over an in- subsequently removed from office. creased area, by allowing the lighted vehicles on “private or public property”. If approved by the Governor, these provisions take effect January 1, 2008, except as other- If approved by the Governor, these provisions wise provided. take effect July 1, 2007. z HB 699 z HB 803 Veteran/Public Employment Qualifying Adoptive Parents/Benefits Preference The bill creates s. 409.1663, F.S., to expand The bill repeals s. 295.101, F. S. The section the categories of state employees who are eli- limits the use of an employment preference for gible to receive adoption benefits and to con- veterans once the veteran has initially been solidate statutory provisions regarding water employed by the state or any agency of a po- management district employees who are al- litical subdivision in the state. The effect of this ready eligible to receive adoption benefits. bill will be to extend the eligibility for veterans’ employment preference throughout a The bill adds community college and county veteran’s state or local government career. school district employees to the list of employees eligible to receive $10,000 upon the If approved by the Governor, these provi- adoption of a “special needs child” or sions take effect July 1, 2007. $5,000 upon the adoption of a child who is not a “special needs child” but whose perma- z HB 707 nent custody has been awarded to the state. Lights on Motor Vehicles The bill clarifies that state university employees The bill enables those vehicles “owned or are eligible for adoption benefits as well. leased by private security agencies” to display green and amber lights while engaged The bill provides that adoption benefits are to in security duties on private or public prop- be paid in a lump sum and are subject to a erty. By striking the current language, “pri- specific appropriation. The bill also transfers vate watch, guard, or patrol agencies li- the administration of the program from the censed pursuant to chapter 493” [F.S.], the Department of Management Services to the

55 2007 LEGISLATIVE REPORT

Department of Children and Family Services wide voter registration system the date and grants DCF rulemaking authority. each form is received and the date the signature on the form is verified as valid. If approved by the Governor, these provisions take effect July 1, 2007. o Provides that a signature may be revoked within 120 days after it has been verified z HB 851 by the supervisor by submitting a signed Historic Preservation petition-revocation form to the appropri- This bill provides for the long-term preserva- ate supervisor. tion of state-owned historic properties in St. Augustine through a contract with the Univer- o Provides that petition-revocation forms and sity of Florida. The university would provide the process by which revocation form sig- oversight to enhance existing educational natures are obtained, submitted, and veri- programs in historic preservation, archae- fied are subject to the same relevant re- ology, and cultural resource management at quirements and timeframes as petition the University of Florida, while simultaneously forms. meeting the needs for historic preservation in St. Augustine. The university may authorize a o Requires supervisors to provide petition- direct-support organization to assist the uni- revocation forms to the public at all main versity in its role. and branch offices.

If approved by the Governor, these provi- o Provides that petition-revocation forms sions take effect July 1, 2007. must be filed with the supervisor by Feb- ruary 1st preceding the next general elec- z SB 900 tion; however, if the initiative is not certi- Initiative Petitions fied for ballot position in that election, the This bill, entitled the “Beatrice T. Posey Truth in revocation forms must be filed by Febru- Petition Act,” amends s. 100.37 1, F.S., and ary 1st preceding the next successive gen- provides the following: eral election. o Requires petition forms to be signed by o A fee of 10 cents or the actual cost of the constitutionally required distribution verifying such revocation signature, of electors in addition to the constitution- whichever is less, must be paid to the su- ally required number of electors currently pervisor in order for the signature to be required under law. verified. o Requires the elector who signs a petition o The supervisor must record each valid and form to date the form when he or she verified revocation form in the statewide signs it. voter registration system. o Requires a petition form to be given to a If approved by the Governor, these provi- supervisor within 30 days from the date it sions take effect August 1, 2007. is signed by the elector in order to be verified as valid. o Requires supervisors to record in the state-

56 CARLTON FIELDS, P.A.

z HB 1305 z HB 919 Notary Public/Electronic Notarization Emergency Communications Systems of Documents The bill merges the wireline 911 plan for This bill authorizes notaries public to use elec- landline telecommunications companies and tronic notarization for documents requiring the Wireless Emergency Communications Act. notarization. The bill implements standards for The bill redesignates the emergency telephone secure electronic notarization in order to re- 911 section as the “Florida Emergency Com- ceive the same level of credibility and reliabil- munications Number E91 1 State Plan Act.” ity as paper-based notarizations. For exam- Legislative intent is modified to declare that ple, the bill provides that the electronic signa- the communications number “911” is the ture of a notary public must be: emergency communications number and is to be used solely for that purpose by a public o Unique to the notary public; safety agency. Certain definitions are added, deleted, or clarified relating to this act. The o Capable of independent verification; bill modifies the requirements for a state plan and for regional or multi-jurisdictional systems o Retained under the notary public’s sole to encourage enhanced 911 (E9 11) service control; and availability throughout the state. o Attached to or logically associated with The bill broadens the statutes to include users the electronic document in such a manner of voice communication services which is a that any subsequent alterations to the two-way voice service through the use of any document render evidence of the technology (with certain exception). The bill change. provides for an E91 1 board to administer the fees in a manner that is competitively and Additionally, when a signature is required to technologically neutral and to ensure the fee be accompanied by a notary public seal, the is used as directed. Certain definitions are bill provides that this requirement is satisfied added, deleted, or clarified. It creates the when the electronic signature of the notary E91 1 Board by modifying the make-up of the public contains all of the following seal in- Wireless 911 Board and modifies or pro- formation: vides for certain duties, including the monitoring of the E91 1 fee. The wireless 911 fee is o The full name of the notary public exactly renamed the E9 11 fee and is collected from as provided on the notary public’s appli- users of voice communications services. The cation for appointment; bill provides for authorized expenditures of the E9 11 fee and provides for transfer of o The words “Notary Public State of Flor- such fees under certain conditions. It provides ida”; for the liability of counties and indemnification o The date the commission of the notary and limitations of liability. public expires; and The bill makes technical and conforming o The commission number of the notary changes and removes outdated provisions. public. If approved by the Governor, these provisions take effect upon becoming law.

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The bill also authorizes the Department of o Transfers the permitting for milk manufac- State to adopt rules to ensure the security, re- turing plants from the Division of Food liability, and uniformity of signatures and Safety to the Division of Dairy Industry. seals authorized by the legislation. o Removes a provision for the temporary per- If approved by the Governor, these provisions mitting of milk haulers in order to be con- take effect January 1, 2008. sistent with the federal Grade “A” Pas- teurized Milk Ordinance. z SB 1372 Agriculture & Consumer Services o Clarifies state law with respect to the sale This bill addresses the following issues related of manufactured milk products and to agriculture and the powers and duties of the cheese within the state. Department of Agriculture and Consumer Services. Specifically, the bill: o Repeals ss. 591.27 through 591.34, F. S., to remove obsolete statutory language o Authorizes the department to issue biennial relating to the establishment, branding, rather than annual pesticide registration and other requirements of seed trees. renewals, effective on January 1, 2009. o Creates the Consumer Fireworks Task o Authorizes the department to impose a Force within the department for the pur- late fee of $25 per pesticide brand for pose of studying issues related to fire- each month a payment is late, not to ex- works. Requires a report of the recom- ceed a total of $250 per brand. mendations and findings of the task force to be submitted to the President of o Clarifies that registration requirements the Senate and the Speaker of the House apply to each brand of pesticide. of Representatives by January 15, 2008. o Updates statutory language relating to o Authorizes the department to conduct re- bottled water and bottled water plants to search projects on citrus diseases recom- conform to federal regulations. mended by the Florida Citrus Production Research Advisory Council, within the lim- o Redefines the term “food establishment” to its of appropriations made specifically for include tomato packing houses. Provides such purpose. enhanced tomato food safety inspections on tomato farms, in tomato greenhouses, o Designates the Unit No. 2 Packing House and in tomato packing houses and re- Building at the Palatka State Farmers’ packers. Market as the “E. H. ‘Gene’ Downs Building.” o Updates terminology and the definitions of “dairy farm,” “pasteurized milk ordi- If approved by the Governor, these provi- nance,” “imitation milk and imitation sions take effect July 1, 2007. milk products,” “milk,” “milk products,” and “substitute milk and substitute milk products” to conform to the federal Grade “A” Pasteurized Milk Ordinance.

58 CARLTON FIELDS, P.A.

held liable for negligence related to z HB 1427 such property that results in the death of, Agriculture/Agritourism injury to, or damage to a person tres- This bill addresses the following issues re- passing on the property who has en- lated to agriculture. It: gaged or is engaging in damaging, re- o Provides for the Department of Agriculture moving, or mutilating any posted notice and Consumer Services to assist the vari- and/or fence placed by the legal resident ous tourism entities of Florida for the im- of the property. provement of agritourism promotion in The bill increases the punishment for the state through the provision of market- the unlawful mutilation, removal, or ing advice, technical expertise, promo- damaging of a posted notice to a first tional support, and product development. degree misdemeanor. The purpose of agritourism is to provide access to agricultural lands to segments A person who unlawfully damages a of the population previously unaccus- fence on land that is not their own two tomed to such experiences. This can be or more times will be charged with a accomplished through farm tours, festi- felony of the third degree. vals, rural businesses, historical recrea- tions, workshops/educational activities, o Adds that notice of no trespassing may and harvest your own activities. be painted on trees or posts on the property. o Defines the terms “agritourism activity”, “farm”, and “agritourism professional.” If approved by the Governor, these provisions take effect upon becoming law. o Does not divest bona fide farm lands of the greenbelt classification for farms engaging z SB 1638 in agritourism. Gift Certificates & Similar Credit Items o Directs local governments and agricultural This bill requires that a gift certificate or representatives to meet for the purpose of credit memo sold or issued for consideration discussing the benefits of agritourism to in this state may not have an expiration date, local economies and opportunities for co- expiration period, or any post-sale charge or operation, conflict resolution, regulatory fee, such as a service charge, dormancy fee, streamlining, and incentives. account maintenance fee, or cash-out fee. The bill creates the following exemptions to this o Directs the Department of Agriculture and requirement: Consumer Services to examine the conditions surrounding the sale and purchase o A gift certificate may have an expira- of horses and to adopt rules to prevent tion date of not less than three years if unfair or deceptive trade practices. it is provided as a charitable contribution where payment of consideration is o Deems that a person or organization own- not required and the expiration date is ing, controlling, or possessing an interest prominently disclosed in writing to in agricultural property, or an agent of the consumer at the time it is pro- such person or organization, will not be vided.

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o A gift certificate may have an expira- bill and are sold or issued by a financial tion date of not less than one year if it institution as defined in s. 655.005, F.S., is provided as a benefit pursuant to an or a money transmitter as defined in s. employee incentive program, consumer- 560.103, F.S. loyalty program, or promotional program where payment of consideration If approved by the Governor, these provi- is not required and the expiration date sions take effect upon becoming law. is prominently disclosed in writing to the consumer at the time it is provided. z SB 1920 Ballot Initiatives o A gift certificate may have an expiration This bill provides that a private person exer- date if it is provided as part of a larger cising lawful control over any privately-owned package related to a convention, confer- property, including commercial property open ence, vacation, sporting, or fine arts event to the public, may prohibit all activities on the having a limited duration and if the property that support or oppose constitu- majority of the value paid by the re- tional amendment initiatives. cipient is attributable to the convention, conference, vacation, sporting or If approved by the Governor, these provi- fine arts event. sions take effect July 1, 2007. o The prohibitions against expiration z SB 1974 dates, expiration periods, or post-sale State Information Technology charges or fees do not apply to gift In its January 2007 Interim Report, Enterprise certificates or credit memos sold or is- Information Technology. Senate Review and sued by a financial institution, as de- Study, the Florida Senate reported an uneven fined in s. 655.055, F.S., (state-chartered forty-year experience with the recognition and banks and credit unions), or by a money development of an electronic information transmitter, as defined in s. infrastructure in government programs. Op- 560.103, F.S., if the gift certificate erationally a more than $2 billion annual or credit memo is redeemable by mul- investment itself, information technology is an tiple unaffiliated merchants that accept indistinguishable part of the daily functioning monetary consideration remitted of government agencies. In a state where ac- through the financial institution or money cess to publicly funded programs is a constitu- transmitter that sold or issued the gift cer- tional right, a properly functioning electronic tificate or credit memo. infrastructure becomes an essential element in assuring operational accountability as well as The terms “gift certificate” and “credit giving the public confidence that government memo” are defined by the bill. agencies can be both responsible and re- sponsive. This bill provides that unredeemed gift certificates or credit memos are not required In cataloging the State of Florida’s experi- to be reported as unclaimed property. How- ences with large-scale information technol- ever, this does not apply to gift certificates ogy undertakings, that report pointed to that are exempt from the prohibitions against many lessons learned from a whole series of fees and expiration dates contained in the project failures that either underperformed or overreached. Its overall recommendations

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are embodied in this bill which creates an health. It also adds such reptiles to the licens- Agency for Enterprise Information Technology ing, permit and inspection requirements, headed by the Governor and Cabinet. The which includes a $100 licensing fee. agency will be responsible for the development of large-scale, or enterprise, information The bill raises the bond to exhibit venomous technology activities that span groups of reptiles from $1,000 to $10,000 which shall state departments and commissions. The be submitted to the commission in writing. new agency is specifically directed and funded to develop a work plan, the initial The bill creates a financial responsibility guar- elements of which – data center consolida- antee requirement for persons who exhibit tion, alternative acquisition policies on the Class I wildlife and authorizes the commis- replacement of equipment, messaging sys- sion to establish, by rule, provisions for tems, customer relationship management sys- satisfying the financial responsibility. In lieu tems, and information security – are specified of such a financial guarantee, the exhibiter as expectations by its second year of exis- has the option to maintain comprehensive tence. There should be no intrusion into indi- liability insurance in the amount of $2 million vidual state agency information technology dollars for each occurrence. operations, as the focus of the new agency The bill substantially rewrites the captive wild- lies with the development of shared systems life penalty provisions creating Level One, common to all participants. Certain respon- Two, Three, and Four violations. sibilities assigned to the former State Tech- nology Office are redistributed to the De- Finally, the bill appropriates $75,000 from the partment of Management Services and the State Game Trust Fund, for FY 2007-2008, to bill provides conforming changes to that end. the commission for the initial costs associated The bill specifically appropriates new funds with the additional regulatory responsibili- and reappropriates current funds for the ties. support of the new agency and its missions. If approved by the Governor, these provi- If approved by the Governor, these provisions take effect July 1, 2007. sions take effect July 1, 2007. z SB 2800 z SB 2766 Appropriations Venomous Reptiles The bill is the General Appropriations Act, & Reptiles of Concern which provides funding for the annual period The bill amends the requirement for licensing beginning July 1, 2007 and ending June 30, of venomous reptiles to include those persons 2008, to pay salaries, expenses, capital out- that capture, keep, or transport such reptiles. lay – buildings, and other improvements, and for specified purposes of the various The bill requires the Fish and Wildlife Con- agencies of state government. servation Commission (FWC or commission) to establish a list of reptiles of concern by De- General Appropriations Act by major policy cember 31, 2007, that may include venom- center: ous, nonvenomous, native, nonnative, or other reptiles that have the potential to negatively • Education -- $22.7 billion impact the environment, the ecology, or human • Criminal Justice & Corrections -- $4.5 billion

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• General Government -- $5 billion rects the Department of Children and • Health & Human Services -- $24.2 billion Family Services to work with the Office • Judicial Branch -- $500 million of the State Courts Administrator and the • Natural Resources, Environment, Growth Statewide Guardian Ad Litem Office to al- Management & Transportation -- $13.2 billion low a judge, magistrate, or guardian ad litem to access FSFN information If approved by the Governor, these provi- concerning cases to which they are as- sions take effect July 1, 2007, or upon be- signed, by the date of the network’s re- coming law, whichever occurs later, except lease during FY 2007- 2008. as otherwise provided. o Requires the Department of Environmental Protection to lease the existing South Flor- z SB 2802 ida Evaluation and Treatment Center in Appropriations Implementing Bill Miami-Dade County to Miami-Dade This is the bill implementing appropriations County. for FY 2007-2008. It makes one-year changes to substantive laws in order to o Authorizes the Department of Correc- prevent conflicts between the statutes and tions and the Department of Juvenile Jus- the budget so that the Legislature’s budget tice to make expenditures to defray costs decisions can be fully implemented. The incurred by a municipality or county for bill: facilities operated under the authority of each department. The payment may not o Implements Specific Appropriations 7, exceed one percent of the construction 8, and 86 through 91 of the General costs, less any building impact fees paid Appropriations Act for the 2007-2008 to the local government. fiscal year adopting by reference the o Allows the Executive Office of the Gover- document “Public School Funding – The nor to request additional positions and Florida Education Finance Program,” for other resources, including fixed capital the purpose of displaying the calculations outlay, for the Department of Corrections, used by the Legislature consistent with the if the Criminal Justice Estimating Confer- requirements of Florida Statutes in making ence projects a certain increase in the in- appropriations for the Florida Education mate population and the additional posi- Finance Program in FY 2007-2008. tions are approved by the Legislative o Requires that funds appropriated for fo- Budget Commission. rensic mental health treatment services be o Authorizes the Governor to submit a allocated to the areas of the state having budget amendment, in accordance the greatest demand for services and with the provisions of s. 216.177, F.S., treatment capacity. to transfer appropriations from the Gen- o Requires all public and private agencies eral Revenue Fund between categories in and institutions participating in child the criminal conflict and civil regional welfare cases to enter certain information counsel budget entity. This section author- into the Florida Safe Families Network izes the transfer of appropriations be- (FSFN) in order to maintain the accuracy tween each of the criminal conflict and and usefulness of the automated child wel- civil regional counsel budget entities. fare case management system; and di- Also, this section authorizes budget

62 CARLTON FIELDS, P.A.

transfers between criminal conflict and o Requires the department to annually civil regional counsel budget entities and publish a master leasing report, allows child dependency and civil conflict cases the department to use real estate consult- within the Justice Administrative Commis- ing or tenant brokerage services in order sion. to carry out its duties, and provides that fees for real estate consulting and tenant o Authorizes the Department of Legal Affairs to spend funds from Specific Appropria- brokerage services are subject to appro- tions 1388 and 1389 on the same pro- priation by the Legislature. grams and in the same method as was o Allows agencies to use the services of a done in FY 2006- 2007. tenant broker to assist in the competitive o Allows a municipality to expend funds solicitation of leased space. The section in a special law enforcement trust fund requires that the tenant broker must be to reimburse the general fund for moneys on state term contract. advanced from the general fund to the special law enforcement trust fund prior to o Requires the Department of Management October 1, 2001. Services to submit an analysis of the disposition of all state owned facilities and o Authorizes the Department of Juvenile Jus- the effect of disposal. tice to spend $2.5 million in general revenue from Specific Appropriation 1169 for o Requires the Department of Environmental additional medical and mental health care Protection to award $9.4 million in solid at the department’s detention centers. waste management grants in equal amounts to counties with populations of o Allows the Executive Office of the fewer than 100,000, and to award $2.9 Governor to transfer funds appropri- million for Innovative Grants. ated for the payment of risk management insurance premiums between de- o Provides that all funds from the Florida partments. The amendment to the ap- panther license plate be deposited in the proved operating budget is subject to Florida Panther Research and Manage- the notice and objection procedures of ment Trust Fund within the Fish and Wild- s. 216.177, F.S. life Conservation Commission, to be used for programs to protect the endangered o Allows the Executive Office of the Gover- Florida panther. nor to transfer funds appropriated for the payment of the statewide human resource o Requires the Department of Agriculture management services contract between and Consumer Services to conduct re- departments. The amendment to the ap- search projects on citrus disease, includ- proved operating budget is subject to the ing citrus canker and citrus greening, notice and objection procedures of s. recommended by the Florida Citrus Pro- 216.177, F.S. duction Research Advisory Council. o Limits the use of state owned motor vehi- o Permits an agency to make cash awards cle and aircraft to “official state busi- to employees in appreciation and recog- ness.” This section requires individuals nition of service to the state. traveling on state aircraft for purposes o Continues the employer contribution into other than state business to reimburse the health insurance saving accounts for the state for all costs.

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FY 2007-2008. the purpose, duties, and membership of the task force; requires the Office of Pro- o Authorizes moneys in the General Inspec- tion Trust Fund to be appropriated for cer- gram Policy Analysis and Government tain programs operated by the Depart- Accountability to staff the task force and

ment of Agriculture and Consumer Ser- provide funding assistance. Authorizes vices. the funds from the sale of property by the Department of Highway Safety and Mo- o Allows proceeds from the Professional tor Vehicles in Palm Beach County to Sports Development Trust Fund to be used be deposited into the Highway Safety for operational expenses of the Florida Operating Trust Fund. Sports Foundation and financial support

of the Sunshine State Games. o Reduces the required match for state funds for dredging projects in counties with o Authorizes the Department of Transporta- populations below 300,000 that meet tion to expend funds to pay for administra- current statutory requirements from 50 tive expenses incurred by multi-county percent to no less than 25 percent. transportation/expressway authorities

when such expenses are in furtherance of o Extends the time period for local govern- the duties and responsibilities of the au- ments to submit an application to the Ex- thority in the development of improve- ecutive Office of the Governor requesting ments to the state highway system. a waiver of local match for public assistance projects resulting from Hurricanes o Authorizes the Governor to recommend Charley, Frances, Ivan, and Jeanne. the initiation of fixed capital outlay pro-

jects funded by grants awarded by the o Authorizes the use of revenues collected Federal Emergency Management Agency from administrative fines to support the for FEMA disaster declarations. Hospitality Education Program and increase the maximum amount of funds the o Requires the Department of Transporta- Department of Business and Professional tion to transfer funds to the Office of Regulation may designate to support the Tourism, Trade, and Economic Develop- program. ment in an amount equal to

$25,400,000 for the purpose of funding o Provides that only funds appropriated economic development transportation pro- specifically for distribution pursuant to this jects. This section also requires the de- subsection may not be allocated for indi- partment to provide financial assis- vidual school projects. Funds for individ- tance to the Seaport Strategic Plan- ual projects may be appropriated, as in ning and Financing Task Force, specifies Specific Appropriation 35B, separately certain transportation projects to be from funds appropriated pursuant to s. funded, and prohibits the department 1013.34(d), F.S. from reducing, deleting, or deferring o Exempts the Suwannee River Water any existing projects funded, as of July Management District and the Northwest 1, 2007, in the Department of Transpor- Florida Water Management District from tation's 5-year work program. the match provisions of the Surface Wa- ter Improvement and Management Pro- o Creates the Seaport Strategic Planning gram. and Financing Task Force; provides for

64 CARLTON FIELDS, P.A.

the Department of Environmental Protection o Expands the allowable uses of moneys in the Internal Improvement Trust fund and in evaluating and awarding grants. provides for the transfer of these funds to o Requires the Florida Building Commission the Ecosystem Management and Restora- to convene a workgroup with specified tion Trust fund for grants and aids to lo- representatives to develop a model resi- cal governments for water projects. dential energy efficiency ordinance and submit a report to the Legislature by o Provides that interest earnings accumu- lated in the Water Protection and Sus- March 1, 2008. The commission is re- tainability Program Trust fund shall be quired to revisit the analysis of cost- transferred to the Ecosystem Manage- effective means to improve energy effi- ment and Restoration Trust fund for ciency in commercial buildings and re- grants and aids to local governments for port with a standard which may be water projects. adopted for the construction of all new residential, commercial, and government o Amends s. 201.15, F.S., to expand the buildings to the Legislature. The commis- use of documentary stamp tax revenues to sion must develop and implement a include water projects. public awareness campaign that pro- o Authorizes the transfer of Invasive Plant motes energy efficiency and the benefits Control Trust Funds for transfer to the Eco- of building green. The Department of En- system Management and Restoration Trust vironmental Protection is directed to de- fund for grants and aids to local govern- velop a public awareness campaign, with ments for water projects. required elements, that promotes energy efficiency in the state and discourages all o Creates the Teacher’s Down Payment As- forms of energy waste. sistance Pilot Program and directs the Flor- ida Housing Finance Corporation to es- o Directs the University of Florida, Institute tablish, through rule, project selection and of Food and Agricultural Sciences, to es- funding criteria, and specifies certain eli- tablish a research and demonstration cel- gibility requirement for the program. lulosic ethanol plant. o Requires the Department of Highway o Deletes a provision that requires the De- Safety and Motor Vehicles to print and partment of Environmental Protection to distribute the Official Florida Driver Li- consult with the Department of Agriculture cense Handbooks without the use of ad- and Consumer Services relating to bio- vertisement, and prohibits any govern- energy projects for renewable energy mental agency, including secondary pub- technology. lic schools, from distributing any driver o Allows the Department of Financial Ser- handbooks other than those printed by vices to spend $846,021 of prior funding the department. for salaries and related expenses to support 14 positions appropriated to admin- o Creates the Farm-to-Fuel Grants Program ister the Florida Hurricane Damage Miti- within the Department of Agriculture and gation Program. Consumer Services. The department may adopt rules to establish project selection If approved by the Governor, these provisions and funding criteria and must consult with take effect July 1, 2007, except as otherwise provided.

65 2007 LEGISLATIVE REPORT

issued by the Department of Highway Safety z HB 7167 and Motor Vehicles. Municipal Incorporation The bill (Chapter 2007-26, L.O.F.) prohibits The bill provides for deposit and use of cer- a county from requiring any municipality tain fees, fines, and penalties collected under formed after January 1, 2000, to pay a the Marine Resources Conservation Trust charge, assessment, tax, fee, or other con- Fund, for the funding of: the stone crab trap sideration as a condition of municipal incor- reduction program, the blue crab effort man- poration. agement program, the spiny lobster trap certificate program, and the derelict trap re- These provisions became law upon approval trieval program. by the Governor on May 4, 2007, and take effect on July 1, 2007. The bill requires legislative approval for certain commission rules that establish equitable z HB 7173 rent. Fish & Wildlife Conservation Commission The bill establishes the Blue Crab Effort Man- The bill clarifies the Fish and Wildlife Con- agement Program which includes a fee sched- servation Commission’s (FWC) constitutional ule for endorsements required by the FWC for authority over marine life specifying that it the taking of blue crabs. It establishes a fee does not include any authority retained by the for each blue crab trap tag issued and for the Legislature or vested in any other agency, replacement of lost or damaged tags. It es- other than the Marine Fisheries Commis- tablishes administrative penalty limits, license sion, on March 1, 1998. It also does not in- suspension and revocation requirements, and clude authority over marine aquaculture re- third-degree felony penalties. The FWC is tained by the Legislature or vested in any authorized to automatically suspend or per- other agency as of July 1, 1999. The bill manently revoke blue crab endorsements and further requires that the FWC adopt, by rule, deactivate blue crab trap tag accounts adequate due process procedures and shall under certain circumstances. It requires publish such rules in the Florida Administrative the commission to adopt, by rule, a schedule Code. for administrative penalties for the blue crab effort management program. The bill authorizes use of up to ten percent of the annual use fee deposited into the Save The bill appropriates $132,000 from the the Manatee Trust Fund, the Florida Panther Marine Resources Conservation Trust Fund to Research and Management Trust Fund, and the FWC, for the purpose of implementing State Game Trust Fund to promote or market the blue crab effort management program manatee, Florida panther, and largemouth and for administrative costs of the Blue Crab bass specialty license plates. It increases the Advisory Board, created by rule of the com- annual use fee collected from the sale of the mission. sea turtle specialty license plate from $17.50 to $23. It also authorizes the FWC to use the The bill authorizes the FWC to temporarily annual use fees deposited into the Save the waive the trap tag fees for stone crab, blue Manatee Trust Fund from the sale of the crab, and spiny lobster fisheries in areas manatee license plates, for FY 2007-2008, where massive trap losses occur due to natu- to buy back any manatee license plates not ral disaster and if the area is declared, by

66 CARLTON FIELDS, P.A.

the governor, to be a disaster emergency Human Trafficking, Florida is the second area. largest hub of human trafficking in the U.S.

The bill provides that all endorsement and trap The bill provides that during an interim pe- tag fees, as well as fines for administrative and riod between application and receipt of a criminal penalties, shall be deposited in the visa, victims of trafficking and other serious Marine Resources Conservation Trust Fund, crimes are eligible for existing state and and specifies the purposes for which the fees local benefits and services to the same ex- may be used. tent as a refugee.

The bill provides for the assessment of ad- The bill provides that these individuals have ministrative penalties and deletes the suspen- access to a state-funded equivalent of the fed- sion of endorsement provision, for first-time eral refugee cash, medical, and social ser- rule violations, in the stone crab and spiny vice programs. lobster programs. It authorizes the application of trap retrieval fees for the recovery of blue The bill permits an immigrant survivor of a crab traps and black sea bass traps. It also serious crime to receive medical care, mental corrects a reference to saltwater crawfish con- health care, and basic assistance in securing forming to the commission’s current spiny lob- housing, food, and supportive services. ster program. The bill provides for the creation of a state- The bill increases certain license and permit funded component of the refugee cash, medi- fees for residential and non-residential fresh- cal and social services programs to serve water and saltwater fishing, and hunting and these victims during a temporary period while creates a 3-day non-residential freshwater they wait for federal processing to be com- fishing license. pleted.

The bill authorizes the commission, tax collec- The bill provides that a sworn statement by a tors and certain subagents to request and col- victim is sufficient evidence for determining lect donations when selling recreational li- eligibility if that statement is supported by at censes or permits. The proceeds from the col- least one item of additional evidence provid- lection of the donations are to be solely for ing a basis for the claim including, but not the purpose of enhancing youth hunting and limited to: fishing programs within the FWC. It also pro- o Police and court records; vides for an annual reporting of such pro- o News articles; grams by the FWC to the Governor and Leg- o Documentation from a professional islature by January 1. agency; o Physical evidence; or If approved by the Governor, these provi- o A statement from an individual with sions take effect July 1, 2007 unless other- knowledge of the circumstances. wise specified in the bill. The bill requires the development of a public z HB 7181 awareness program for employers and other Human Trafficking/ organizations that may come in contact with Immigrant Survivor immigrant survivors of human trafficking. According to the Florida Coalition Against

67 2007 LEGISLATIVE REPORT

If approved by the Governor, these provi- o Providing an award of attorney’s fees sions take effect July 1, 2007. to the petitioner in an unadopted rule challenge if, prior to the final hearing, z HB 7183 the agency initiates rulemaking and the Rules & Rulemaking agency knew or should have known that This bill revises provisions in the Administra- the agency statement was an unadopted tive Procedure Act (APA), codified in ch. rule; 120, F.S., relating to unadopted agency rules. In addition to technical or administrative re- o Increasing the cap on awards of attor- finements, the bill makes the following signifi- neys’ fees for challenges to existing and cant changes: proposed rules from $15,000 to $50,000 and places a $50,000 cap on o Strengthening provisions relating to chal- awards of attorneys’ fees for challenged lenges of unadopted rules; to adopted rules; and o Restricting agencies’ authority to rely o Requiring an agency to discontinue re- upon unadopted rules in administrative liance upon a statement that is being hearings; challenged as an unadopted rule until o Bolstering the ability of the Joint Adminis- such challenge is not pending or the trative Procedures Committee to examine statement has been formally adopted as unadopted agency rules; a rule.. o Providing definitions of the terms “law Unless otherwise provided, the provisions of implemented” and “rulemaking author- this bill take effect July 1, 2007. ity”; o Providing additional requirements for

adoption of material that is being incorporated by reference in rules; o Requiring electronic publication of the Florida Administrative Code (FAC); o Providing for material incorporated by reference to be filed in electronic form, unless doing so would constitute a violation of federal copyright law; o Providing that if an agency head is a board or other collegial body, then the agency head may not delegate the responsibility to conduct requested public hearings;

2007 Florida Legislature Post-Session Report

Growth Management, Environment, Natural Resources, Real Property, Energy & Transportation

GROWTH MANAGEMENT, ENVIRONMENT, NATURAL RESOURCES, REAL PROPERTY, ENERGY & TRANSPORTATION z SJR 166 Property Rights/Ineligible Aliens The equal protection clause in s. 2, Art. I, State Constitution, generally requires the state to treat everyone equally. However, an exception within the equal protection clause permits the Legislature to regulate or prohibit the ownership of property by aliens ineligible for citizenship.

Laws restricting property ownership by aliens ineligible for citizenship originated in the Senate President Kenneth Pruitt, R-Port St. Lucie; right, holds up a stone entitled "Patience" while commenting on a success- early 1 900s. At that time, Asians were in- ful legislative session after sine die before a crowd in the eligible for citizenship. Today, however, eli- Capitol rotunda, ending the 2007 Legislature on May 4. From gibility for citizenship is not based on racial the left are: Majority Leader Marty Bowen, R-Winter Haven; Policy & Budget Chairman Ray Sansom, R-Fort Walton Beach; classifications. Speaker Marco Rubio, and President Pruitt. (House photo by Meredith Hill) Senate Joint Resolution 166 amends s. 2, Art. I, State Constitution, to delete provisions au- applicable to the Northwest Florida ERP pro- thorizing the Legislature to regulate or prohibit gram. the ownership, inheritance, disposition, and possession of real property by aliens ineligi- o Ensures that state surface water quality ble for citizenship. standards do not apply within a stormwater management system which is de- If approved by the electors during the 2008 signed, constructed, operated, and main- General Election, these provisions take effect tained for stormwater treatment in accor- January 6, 2009. dance with a valid permit or exemption within the Northwest Florida Water z HB 197 Management District. Surface Water Protection Programs The bill makes changes to address discrepan- The bill removes the requirement for the North- cies between the Northwest Florida’s Environ- west Florida Water Management District, the mental Resource Permitting (ERP) program Suwannee River Water Management District, and the rest of the state’s ERP program. To or a financially disadvantaged small local provide consistency throughout the state’s government to provide a 50-percent match of ERP program, the bill: cash or in-kind services towards the implementation of the surface water improvement o Ensures that variance provisions are and management (SWIM) projects.

71 2007 LEGISLATIVE REPORT

The bill provides that the authority of the De- pensation from the Florida Mobile Home Re- partment of Environmental Protection (DEP) location Trust Fund, and that information or the South Florida Water Management about the trust fund is available from the De- District (SFWMD) is not affected when partment of Business and Professional Regula- adopting basin-specific criteria to prevent tion. harm to the water resources of the SFWMD. The bill provides that, in an action brought by The bill eliminates the requirements that the Florida Mobile Home Relocation Corpora- the SFWMD, prior to authorizing a dis- tion (corporation) to collect assessed pay- charge into works of the district, require re- ments, the corporation may file and maintain sponsible parties to demonstrate that pro- the action in Leon County. It also provides that posed changes in land use will not result in Leon County is the proper venue for any action increased phosphorus loading over that of to which the corporation is a party. existing land uses. This will allow SFWMD to seek greater phosphorus load reductions not The bill provides for a late fee for a mobile authorized under current law. home park owner’s untimely payments to the Florida Mobile Home Relocation Trust Fund. The bill provides legislative recognition that It provides a one year time limit during peat harvesting represents a unique industry which a mobile home owner who has been which occurs in specific wetlands in the state. required to move from a mobile home park It provides DEP rule making authority to over- may file a claim for relocation expenses see peat mining used exclusively in the horti- from the Florida Mobile Home Relocation cultural industry. Corporation.

The bill repeals s. 403 .265, F.S., relating to If approved by the Governor, these provi- the permitting of peat mining which was sions take effect upon becoming law. transferred to a new section of statute as part of the bill. z SB 314 Condominiums Finally, the bill revises the exemption pro- This bill substantially revises the provisions of vided to certain mine operators from the re- Florida law governing the method and proc- quirement to notify the DEP when beginning ess of termination of a condominium. Many to mine certain substances. provisions are simply moved within the section with grammatical and editorial changes. If approved by the Governor, these provisions take effect July 1, 2007. Substantively, the bill amends s. 718.117, F.S., to provide legislative findings related to z HB 259 condominium terminations and for approval Mobile Home Relocation Corporation of termination by less than 100 percent of The bill specifies the terms of the notice that owners and lienholders. It provides a written mobile home park owners must provide to plan of termination with written notice pro- homeowners at least six months before a vided to all unit owners prior to being voted change in the use of the park and of the upon. It provides for quarterly reports pre- homeowners’ need to secure other accom- pared by the receiver, as well as procedures modations. The notice must inform the home- to replace the receiver. It provides alternative owner that he or she may be entitled to com- methods for determining the allocation of pro-

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ceeds from the sale of condominium property each river watershed, the requirements are and sets forth procedures for management of duplicative. the association during termination and for distribution of the proceeds. It provides for a River Watershed Protection Plans right to contest the plan of termination and The South Florida Water Management District, court review of the plan. in cooperation with other agencies, Lee County (Caloosahatchee River), Martin County (St. If approved by the Governor, these provisions Lucie River), and other affected counties and take effect July 1, 2007. municipalities, is directed to complete, by January 1, 2009, the River Watershed Pro- z SB 392 tection Plans. The DEP and the South Florida Watershed Restoration Water Management District are designated as The bill amends provisions related to the uses the parties responsible for implementing the of the Save Our Everglades Trust Fund and plans. These entities shall jointly develop the the Lake Okeechobee Protection Program. In annual funding priorities and the highest pri- addition, new watershed restoration programs orities shall be assigned to those projects with are established for the St. Lucie and Ca- the greatest potential for achieving the goals loosahatchee Rivers. and objectives of the plans. In addition, these entities shall establish priorities and an im- Lake Okeechobee Protection Program plementation schedule for the achievement of The bill renames this section the “Northern total maximum daily loads (TMDLs). Everglades and Estuaries Protection Pro- gram.” In addition, the Lake Okeechobee Pro- The bill provides that the protection plans be tection Program and Lake Okeechobee Re- submitted to Legislature prior to the 2008 search and Water Quality Monitoring Pro- Regular Session. Should the Legislature take gram are renamed to include the term “water- no action, the plan will be deemed approved. shed.” Additional changes to the Lake Okee- By March 1, 2012, and every three years chobee Research and Water Quality Moni- thereafter, the protection plans shall be evalu- toring Program include requirements that ated. Each plan shall include a “River Water- reevaluations occur every three years and shed Construction Project,” which shall be that a water volumes and timing assessment designed to improve the hydrology, water be done. quality, and habitats of the watersheds. The South Florida Water Management District The bill provides that the Phase II technical shall, by January 1, 2012, plan, design, plan, substantially expanded and modified by and construct the initial phases of the con- this legislation, be submitted to Legislature struction project. prior to the 2008 Regular Session. Should the Legislature take no action the plan will be Watershed Pollutant Control Program deemed approved. These programs are created and designed to provide for a multifaceted approach to manag- Caloosahatchee and St. Lucie River ing the pollutant sources within the water- Watershed Protection Program sheds. They are to be implemented through The bill creates these two new protection pro- regulations, the use of best management grams that are comprised of a series of pro- practices, and utilization of alternative tech- gram components and requirements. Though nologies. The coordinating agencies are di- individual protection programs are created for

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rected to facilitate the use of federal programs Save Our Everglades Trust Fund that offer opportunities for water quality The bill amends existing statutory provisions to treatment, including those designed to pre- extend the trust fund through FY 2019-2020 serve, restore, or create wetlands on agri- and allow for the deposit into and the expen- cultural lands. diture of funds from this trust fund, for the purposes of implementing the Caloosa- Watershed Research and Water hatchee River and St. Lucie River Watershed Quality Monitoring Program Protection Plans. The South Florida Water Management Dis- trict, in cooperation with affected local gov- The bill also creates a provision that ties the ernments and other parties, must establish a release of funds to the submission by the program that builds upon existing research South Florida Water Management District to and will ensure that adequate data is gener- the DEP of an annual work plan for the pro- ated to determine the effectiveness of the protection projects. jects created by the programs. Finally, the bill extends the South Florida An additional provision created in the bill Water Management District’s match re- directs the DEP to expedite the development quirements for the life of the trust fund; al- and implementation of TMDLs for the Ca- lows funds to be distributed for implementa- loosahatchee River and estuary. These tion of the River Watershed Protection Plans TMDLs are to be proposed for final agency including a local match requirement for Lee action no later than December 31, 2008. and Martin counties; and allows funds to be Upon adoption of the TMDLs, the DEP distributed to the Department of Agriculture shall initiate development of the basin and Consumer Services for implementation of management action plans. agricultural nonpoint source controls.

The South Florida Water Management District If approved by the Governor, these provi- is directed to include the following additional sions take effect July 1, 2007. information in their annual report: z SB 400 o A summary of the water quality and Landlord/Possession of Dwelling Unit habitat conditions in the newly defined The bill permits a landlord, under certain cir- watersheds. cumstances, to take possession of a dwelling unit and remove a deceased tenant’s prop- o The status of the watershed construction erty 60 days after the tenant dies. A land- programs. lord’s possession of the dwelling unit is permissible if rent remains unpaid and the land- A detailed accounting of the expenditure o lord has not been notified in writing of the of funds from the Save Our Everglades existence of a probate estate or the Trust Fund. At a minimum, this accounting name and address of the personal repre- shall detail the amount and use of funds sentative. The bill, however, does not apply from all sources and an indication of to a dwelling unit used in connection with what funds were designated to meet federal housing programs. matching fund requirements. If approved by the Governor, these provisions take effect upon becoming law.

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z HB 405 z SB 506 Vacation & Timeshare Plans Tampa Bay Area Regional This bill makes substantive changes to the Transportation Florida Vacation Plan and Timesharing Act. The bill creates ch. 343, part V, F.S. to estab- It amends the formula for funding reserve lish the Tampa Bay Area Regional Transporta- accounts for capital expenditures and de- tion Authority (TBRTA) as an agency of the ferred maintenance relating to condominium state to improve mobility and expand multi- conversions. It amends the purchaser to ac- modal transportation options for passengers commodation ratio from a “one-to-one pur- and freight in the seven county Tampa Bay chaser to accommodation ratio” to a “one-to- region (Citrus, Hernando, Hillsborough, one use right to use night requirement ratio.” Manatee, Pasco, Pinellas, and Sarasota Counties.) It allows a seller to offer an out-of-state timeshare interest in a timeshare plan without filing The TBRTA Board comprises 15 voting mem- a public offering statement under certain cir- bers including seven elected officers ap- cumstances. pointed by each of the represented counties’ Boards of County Commissioners, and It increases security and protection of personal information of timeshare owners, de- o A member of the West Central Florida letes the provisions requiring a public offering Chair’s Coordinating Committee (CCC); statement to include a description of developer financing and creates recordkeeping o The mayor or mayor’s elected designee of requirements for resale service providers and the largest city served by the Pinellas Sun- lead dealers. coast Transit Authority;

It amends the insurance requirements of the o The mayor or mayor’s elected designee of managing entity and deletes the requirement the largest city served by Hillsborough that the amount of insurance coverage be Area Regional Transit Authority; equal to the replacement cost of the accommodations and facilities. o The mayor or mayor’s elected designee of the largest city in Manatee County. The bill amends the definition of “vacation (After two years the mayor or desig- club,” to clarify that the law regulating “vaca- nee of the largest city in Sarasota tion clubs” does not apply to a business or en- County shall be the board member. tity simply because the term is part of the busi- The seat rotates between these counties ness or entity’s name. every two years.); and

It provides that the Governor may appoint o Four non-elected persons appointed by commissioners of deeds to take acknowl- the Governor representing business, edgments, proofs of executions, or oaths in two of which must represent counties international waters. within the Tampa Bay Transportation Management Area. If approved by the Governor, these provisions take effect July 1, 2007. Members of the TBRTA board will serve without compensation and must comply with financial disclosure requirements. The board

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may employ staff and agents and has the o Enter lease-purchase agreements with right to plan, develop, finance, construct, FDOT; and own, purchase, operate, maintain, relocate, equip, repair, and manage transporta- o Borrow money and issue revenue bonds tion projects such as: not pledging the credit of the state. o Express bus services; o Bus rapid transit services; The TBRTA may also participate in public- o Light rail, commuter rail, heavy rail, or private partnerships with private entities for other transit services; the building, operation, ownership, or financ- o Ferry services; ing of transportation facilities within the region, o Transit stations; if the project: o Park and ride lots; o Is in the public’s best interest; o Transit-oriented development nodes; Feeder, reliever, or connector roads; o o Would not require state funds unless the o Bypasses; or project is on or provides increased mo- o Appurtenant facilities. bility on the State Highway System; and A master plan, required by July 1, 2009, is to be updated every 2 years and presented to the o Includes safeguards against the public real- governing bodies of the seven-county region izing additional costs or unreasonable ser- and to the legislative delegation members vice disruptions in the event of default or representing those counties, as well as the cancellation by the authority. CCC. A private entity engaged in a public-private Any project may be tolled. Projects that will be partnership may be authorized to impose tolls part of the State Highway System require the or fares subject to regulation by the TBRTA. concurrence of the Florida Department of Any facility constructed via a public-private Transportation (FDOT). All project planning, partnership must comply with all requirements development, and implementation must be of state, federal, and local laws, state, re- coordinated with the applicable adopted lo- gional, and local comprehensive plans, and cal government comprehensive plans and may the TBRTA’s rules, policies, and standards. be financed from state infrastructure bank The TBRTA may exercise any of its powers, loans and advances from the Toll Facilities including eminent domain, in developing and Revolving Trust Fund and other sources. constructing projects via public-private partnerships. The TBRTA is granted numerous powers including, but not limited to the power to: If approved by the Governor, these provisions take effect July 1, 2007. o Exercise eminent domain; z HB 549 o Establish and collect tolls, fares, and fees Power Plants/Integrated Gasification on TBRTA roads and other facilities The bill contains two types of provisions, those within the region; relating to siting an integrated gasification combined cycle power plant and those relating to consideration of adequate utilization of re-

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newable energy resources and conservations Section 2 of the bill creates a new s. measures. 343.55(3), F.S., to allow the SFRTA to issue, reissue, or redeem bonds as necessary to The bill provides for advanced cost recov- fund the purposes of the SFRTA. The bonds ery for the costs of constructing an inte- shall be offered at public sale by competi- grated gasification combined cycle power tive bid, or through a negotiated sale if plant. It requires that, when the Public Service recommended by a financial advisor and Commission is making a determination of the the SFRTA agrees. These bonds may not need for a proposed integrated gasification pledge the full faith and credit of the state. combined cycle power plant, it must consider specified information as to reliability, fuel Section 3 of the bill amends s. 343.58, F.S., diversity, and the need for base-load gen- as follows to: eration. o Clarify that each of the counties served by The bill also provides that it is the policy of the SFRTA must dedicate and transfer at this state and the intent of the Legislature that least $2.67 million annually to the SFRTA in siting power plants, courses of action be for capital funding before October 31 of taken that balance the increasing demands each fiscal year. Existing language iden- for electrical power plant location and opera- tifying each county’s ninth cent fuel tax, tion with the broad interests of the public, local option fuel tax, and any other local based on premises that, under the bill, include gas tax or nonfederal tax as possible assuring the citizens of Florida that renewable sources for the annual dedication, is de- energy sources and technologies, as well as leted. Authorization of the counties to col- conservation measures, are utilized to the ex- lect a $2 fee on vehicle registrations tent reasonably available. Additionally, the within their boundaries is repealed. bill requires that, when the Public Service Commission is making a determination of the o Require the Legislature to transfer at least need for any proposed power plant, it must $45 million in recurring funds to the consider whether renewable energy sources SFRTA to be used for capital, operating, and technologies, as well as conservation and maintenance purposes. The funds measures, are utilized to the extent reasona- are to come from an un-named state- bly available. authorized, local-option recurring funding source available to the affected counties If approved by the Governor, these provisions and shall only be dedicated to the au- take effect upon becoming law. thority if all of the affected counties impose the local-option funding source. z SB 606 South Florida Regional o Release the affected counties from capital Transportation Authority and operating funding obligations upon The bill revises the South Florida Regional the collection of the recurring $45 million Transportation Authority (SFRTA) Act. Specifi- from the State. However, the counties’ cally, the bill does the following: funding obligations resume when state funding ceases. Should the state funding Section 1 of the bill amends s. 343.54, F.S., result in funding only a part of a fiscal to delete references to “commuter rail.” year, the affected counties’ payments or

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refunds would be prorated. The date on transferred back to the Pasco County Fair which the local capital funding re- Association at no cost. quirements for the SFRTA cease if no federal matching funds have been re- If approved by the Governor, these provisions ceived is extended from December 31, take effect July 1, 2007. 2009, to December 31, 2015. z SB 902 Section 4 of the bill provides the legislative Community Associations finding that a proper and legitimate purpose The bill defines the term “equity facilities club” is served by the bill and it fulfills an impor- to mean a club comprised of recreational fa- tant state interest. cilities in which proprietary membership interests are sold to individuals, and prohibits any If approved by the Governor, these provi- law, ordinance, or regulation that establishes sions take effect July 1, 2007. certain requirements on the equity facilities club form of ownership that are not applica- z SB 668 ble to other forms of ownership. Surplus State Lands/Reconveyance This bill exempts state lands meeting certain The bill provides the following provisions and requirements from the surplus rules estab- requirements regarding the rights, powers, lished in s. 253.034, F.S. These require- and duties of condominium associations and ments include: their members: o The land was gifted or conveyed for a o Prohibits local ordinances or regula- consideration of $1 by a fair associations that limit access to a public or pri- tion to the state prior to 1955; vate beach adjacent to the condominium for the condominium or its members and o The land is less than three acres and; guests unless the ordinance or regulation is necessary to protect the public o The notice for surplus has been filed by health, safety, or natural resources; the Department of Environmental Protec- tion by July 1, 2008. o Limits the enforcement of provisions in the governing documents recorded on The Pasco County Fair Association sold a or after October 1, 2007, or amend- parcel of land to the State Board of Educa- ments thereto, that require the consent or tion in 1954 in order to expand the Univer- joinder of some or all mortgagees of sity of Florida’s West Coast Poultry Diagnos- units or any other portion of the con- tic Laboratory. The land was transferred to dominium property for those mort- several different state entities before the title gages; and finally rested with the Board of Trustees of the Internal Improvement Trust Fund, which leased o Prohibits the acquiring or entering into it to the Division of Forestry, within the De- agreements acquiring leaseholds, mem- partment of Agriculture and Consumer Ser- berships, or other possessory or use in- vices. The land went unused for several years, terests within 12 months after a declara- and the Pasco County Fair Association re- tion. quested that the land be transferred back. This bill provides for this parcel of land to be

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The bill provides the following provisions and ing establishing: the guarantee if it is not requirements regarding the powers and duties included in the purchase contract or dec- of a homeowners' association: laration, the guarantee period, the funding requirements, calculation of o The bill provides procedures for the revival the guarantor’s final obligation, and of the declaration of covenants for non- funding of expenses; mandatory homeowners’ associations in which the covenants have lapsed; o An association may review and approve building plans only to the extent that it is o The bill authorizes for-profit homeowner’s specifically stated or reasonably inferred in associations; the declaration of covenants or other published guidelines and standards author- o All meetings of a homeowner’s associa- ized by the declaration of covenants; tion regarding a final decision for the spending of association funds, and to ap- o An association can only enforce setbacks prove or disapprove architectural deci- specifically provided for in the declaration sions with respect to a specific parcel of of covenants or other published guidelines residential property must be open to all and standards authorized by the declara- members; tion of covenants, and cannot enforce setback requirements that are inconsistent o Provides for the charging of a reasonable with applicable county or municipal set- fee not to exceed $150 plus photocopying back standards; and attorney’s fees to a prospective purchaser or lienholder or the current parcel o Each parcel owner’s rights and privileges owner for providing good faith responses as provided in the declaration of cove- to requests for information, unless other- nants cannot be unreasonably impaired wise required by law; concerning the use of the parcel, and the construction of permitted structures and o Any member who prevails in an action improvements; against an association and is awarded attorney's fees may be awarded an amount o An association cannot enforce any pol- sufficient to cover the member's share of icy that is inconsistent with the rights assessments levied to fund the associa- and privileges of a parcel owner set forth tion’s litigation expenses; in the declaration of covenants, whether the policy is uniformly applied or not; o Permits the merger or consolidation of one or more associations; o It increases from 60 days to 90 days the time period after each fiscal year that an o Establishes for the maintenance of reserve association must prepare and complete accounts in the annual budget, including the annual financial report; and how to calculate reserves and conditions for waiving the maintenance of reserve o It specifies additional records and docu- accounts; ments that the developer must provide to the association’s board of directors upon o It provides for procedures for guarantees the creation of the association. It also of assessments of parcel owners, includ- provides procedures for determining the

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developer’s financial obligation to the thority, and provide MPO staff eligibility to homeowner’s association upon the crea- participate in the Florida Retirement System. tion of the association. Transportation Concurrency This bill repeals the mediation of disputes Section 163.3 18(e), F.S., is created, allowing between homeowners' associations and FDOT to establish a pilot program for studying members by the Department of Business and the benefits of and barriers to creating mul- Professional Regulation. Such disputes would timodal transportation concurrency districts be mediated by private mediators. The me- extending over more than one local govern- diator may require advance payment of fees ment jurisdiction. and costs. The bill deletes the $200 filing fee requirement and provisions providing Section 163.3 182, F.S., is created to allow for the payment of fees for a department county or municipal governing bodies to con- mediator. stitute themselves as transportation concurrency backlog authorities for the purpose of If approved by the Governor, these provisions developing plans to eliminate concurrency take effect July 1, 2007, unless otherwise pro- backlogs. Such plans would be funded by vided. tax increment financing within the jurisdiction. z HB 985 Transportation & Infrastructure Section 339.282 is created to allow develop- The bill addresses a number of transportation ers to receive future credit against concur- issues related to the Florida Department of rency requirements for donations or improve- Transportation (FDOT) and other entities. ments not included in a plan or program, Numerous sections of law are amended or through legally binding agreements. created. Local Government Bond Issuance Florida Transportation Commission Sections 2 12.055 and 336.025, F.S., are Section 20.23, F.S., is amended to require amended to remove prohibitions on local gov- the Florida Transportation Commission to ernments from issuing bonds more than once a monitor expressway authorities and regional year when those bonds are based on local transportation authorities’ compliance with government infrastructure tax or local option applicable laws and accounting principles. fuel tax revenues. The commission will periodically review each authority’s operations and budget, property Fixed Guideway Revenue Bond acquisition practices, and management of Match Section 2 12.055, F.S., is amended to revise revenue. the formula used by FDOT for matching fixed- Metropolitan Planning Organizations guideway revenue bonds issued to finance Sections 112.061, 121.021, 121.051, local fixed-guideway transit projects. Rather 121.055, 121.061, 121.081, and than a fixed 50 percent match, the revision 339.175, F.S., are amended to clarify Met- allows for various matching scenarios up to a ropolitan Planning Organizations (MPOs) are limit of 50 percent on the State’s share of the separate and distinct legal entities, provide eligible project cost to allow FDOT to partici- autonomy to MPOs by requiring independent pate when state funds are not adequate to staff and granting specific powers and au- fund a 50 percent match.

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Toll and Other Traffic Violation FDOT Contracting Penalties The following changes were made to FDOT Sections 316.65, 318.14, and 318.18, contracting requirements in order to enhance F.S., are revised to allow motorists cited for the number of eligible contractors and in- toll violations to pay a reduced fine and the crease the competition for contracts: unpaid toll directly to the tolling agency, and avoid the court process and assessment o Section 337.14, F.S., is amended to al- of points against the motorist’s license. Motor- low FDOT to waive the requirement for ists convicted of 10 toll violations within a contractors to be pre-qualified to bid on 36 month period will have their license jobs when the project is under $500,000 suspended for 60 days. A $3 surcharge and noncompliance will not endanger the will be added to certain criminal and all non- public health, safety, or welfare. criminal moving traffic violations to fund the statewide law enforcement radio system. o Section 337.11, F.S., requires FDOT to expand the general advertising of bids to Turnpike FDOT Toll Facility Issues include those projects for which contrac- Section 338.2275, F.S., is amended to tors do not need to be pre-qualified. raise the maximum allowable dollar amount of bonds issued by the Florida o Maintenance contractors are permitted to Turnpike Enterprise from $4.5 billion to incrementally bond the work on long-term $10 billion. Under revisions to s. 338.161, maintenance contracts by revisions to s. F. S., the turnpike enterprise and express- 337.18, F.S. which also increases, from way authorities may contract with private $150,000 to $250,000, the maximum and public entities to expand the use elec- contract price threshold at which FDOT tronic toll transponders to include the pay- may waive surety bond requirements. ment of parking fees. Section 338.23 1, The surety bond requirements may be F.S., is amended to extend, through June waived for contracts greater than $250 2017, the requirement for the turnpike enter- million provided the contractor can pro- prise to program at least 90 percent of the vide alternate means of security for the turnpike toll revenues collected in Miami-Dade, balance of the contract amount. Broward, and Palm Beach Counties in those counties. Enhanced Bridge Program The bill creates s. 339.285, F.S., to establish Section 33 8.234, F.S., is amended to pre- the Enhanced Bridge Program for Sustainable vent the commercial rental tax authorized Transportation within FDOT to provide a under s. 212.03 1, F.S., from being levied funding mechanism to improve: against the turnpike enterprise or its vendors Local bridges which are not on the State and lessees on any capital improvements o Highway System (SHS), and made for essential government functions. Highly congested roads on the SHS or Under revisions made to s. 338.165, F.S., o local roads with high-cost bridges for the tolls on the turnpike enterprise, as well as purpose of relieving congestion or pro- other toll facilities owned by FDOT, must be viding an alternative corridor. indexed to the Consumer Price Index at least every five years but no more frequently than annually.

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The program allows for state funds to be Transportation Trust Fund may be obligated used to provide up to 50 percent of the pro- to P3s. ject’s cost and authorizes the expenditure of moneys from the State Transportation Trust Revisions are made to s. 348.0004, F.S., Fund to fund the program. The bill also es- addressing the ability of expressway, bridge, tablishes a number of eligibility conditions transportation, and toll authorities to enter for candidate projects. Bridge projects on P3s for projects increasing transportation ca- regionally significant corridors connecting to pacity. Such authorities may sell or lease any the Strategic Intermodal System will receive transportation facility owned by the facility preference. upon approval of the Legislative Budget Commission. The project may not preclude Northwest Florida Transportation the ability of the authority or the private en- Corridor Authority tity from increasing capacity on the project Section 343.81, F.S., is amended to prohibit or other competing facilities and the P3 pro- elected officials from being appointed to the ject must become property of the authority Northwest Florida Transportation Corridor upon completion of the agreement. Authority (NFTCA). Current members of the authority are exempted. The Emerald Coast Construction Aggregates Bridge Authority’s responsibilities for develop- A new section of the Florida Statutes is cre- ing bridge crossings of Choctawhatchee Bay, ated to form the Strategic Aggregates Review Santa Rosa Sound, or both are subsumed by Task Force to evaluate the availability and the NFTCA. disposition of construction aggregates defined as crushed stone, limestone, dolomite, Public-Private Partnerships limerock, shell rock, cemented coquina, and Revisions to s. 334.30, F.S., establish addi- certain sands providing the basic materials tional criteria allowing FDOT to enter public- for concrete, asphalt, and road base. The private partnerships (P3s) to advance projects task force is to present its findings to the outside of the 5-year work program if the Governor and Legislature by February 1, project adds transportation capacity, costs 2008. more than $500 million, and is included in the 10-year Strategic Intermodal Plan. The Local governments must consider the effect of projects may not preclude the ability of FDOT local land-use decisions on the availability, or the private entity from increasing capacity transportation, and extraction of aggregate on the projects or other competing facilities materials and no local government may im- and the P3 projects must become property of pose a moratorium or moratoria on the min- FDOT upon completion of the contract. ing of construction aggregate for more than 12 months duration. With the exception of the Florida Turnpike System, FDOT may lease its existing toll facili- Environmental permitting for limerock extrac- ties to private partners for up to 75 years tion is made eligible for the expedited permit- upon approval of the Legislative Budget ting process established in s. 403.973, F.S., Commission. FDOT may develop new toll and FDOT is authorized to use special pro- facilities or increase capacity on existing toll curement practices in acquiring aggregate facilities through P3s. Up to 15 percent of the when necessary. total federal and state funds from the State

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Aviation match of public transportation projects. Section 3 32.007, F.S., is amended to allow FDOT to fund up to 80 percent of the non- o Under revisions to s. 339.55, F.S., the federal share of certain aviation development State Infrastructure Bank is authorized to projects at publicly owned and operated air- make emergency loans to specified public ports with no scheduled commercial service. transportation providers in declared dis- The Secure Airports for Florida’s Economy aster areas. Council is revised removing state agencies from the council. However, the agencies re- o A number of criteria are established for tain the ability to overrule any action of the non-profit organizations desiring to con- council. tract with FDOT for youth work experience programs under s. 334.35 1, F.S. Miscellaneous Issues Several miscellaneous issues are addressed o Local governments are provided author- in the bill: ity to regulate wall murals by the creation of s. 479.156, F.S. o Sections 120.52, 349.03, and 349.04, F.S., are amended to revise Jacksonville o The provisions of ch. 89-3 83, L.O.F., Transportation Authority (JTA) membership designating Red Road in Miami-Dade and staffing, define JTA as an exempt County as a state historic highway are ‘agency’ under ch. 120, F.S., and to revised to allow certain safety modifica- grant JTA the authority to adopt rules. tions provided no increase in the number of lanes is made. o The amount of local matching funds required for projects funded through the o Section 341.071, F.S., is amended to re- Small Port Dredging program under s. quire recipients of transit block grants to 311.22, F.S., is reduced from 50 per- identify system improvements that would cent to 25 percent. enhance profitability. o Revisions to s. 316.2123, F.S., allow o The bill amends s. 316.1951, F. S., to counties to allow the operation of all ter- revise provisions relating to parking vehi- rain vehicles on designated unpaved cles on public property for the purpose of roads with speed limits less than 35 displaying the vehicles for sale, hire, or miles per hour during daylight hours. rental. This bill also provides exceptions and prohibits certain acts in the sale of o Provisions of ss. 3 16.605 and 320.061, motor vehicles. F.S., related to the placement and legibility of vehicle license plates are revised to o Revisions to s. 348.0003, F.S., require clarify prohibitions against obscuring or the board of the Miami-Dade Expressway interfering with the legibility of license Authority to adhere to the financial disclo- plates. sure requirements of s. 8, Art. II of the State Constitution. o Section 339.2819, F. S., is amended, revising the requirements of the Transporta- o Section 348.754, F.S., is revised to allow tion Regional Incentive Program to allow the Orlando-Orange County Expressway the use of federal funds for the local Authority to implement a small business

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economic development program for con- landlord has the duty to exercise good faith in tracts between $200,000 and attempting to relet the premises. It requires $500,000. that the landlord deduct from the balance due from the tenant any rent received by the land- o The threshold established in s. 336.41, lord as a result of the reletting. The bill revises F.S., at which county construction con- the definition of “rental agreement” and de- tracts must be opened to competitive fines the term “early termination fee.” bidding is raised from $250,000 to $400,000. The bill also permits landlords to recover liquidated damages or early termination fees if Cross-references are corrected in ss. 163.3 they are provided for in the rental agree- 177, 339.176, and 341.828, F.S. ment. The liquidated damages and early termination fees are charged when the ten- If approved by the Governor, these provi- ant gives notice of the early termination. The sions take effect July 1, 2007. bill provides that this remedy is available only, if at the time the rental agreement was z HB 1039 made, the tenant indicated his or her accep- Southwest Florida Water tance of liquidated damages or early termi- Management District nation fees by placing his or her signature or The bill increases the number of governing initials next to the provision in the rental agree- board members of the Southwest Florida Wa- ment. If acceptance is not indicated, the liqui- ter Management District from 11 to 13 and dated damages and early termination fee revises the residency requirements. remedies may not be imposed. It increases, from 1 to 2, the number of The bill provides that the landlord is entitled to board members that reside in Polk County. both the liquidated damages and early termi- It requires one board member to be ap- nation fee if the total charged does not ex- pointed at large from Sarasota and Charlotte ceed an amount equal to two-month’s rent. Counties. In addition to the liquidated damages and Finally, it specifies that Sarasota, Charlotte, early termination fees, the bill provides that Levy, Marion, Citrus, Sumter, Hernando, the landlord may charge the tenant for any Lake, Hardee, DeSoto, or Highlands Counties unpaid rent and other charges due under the may not have more than one member on the rental agreement through the end of the governing board. month in which the landlord takes possession of the dwelling unit; and any rental conces- If approved by the Governor, these provisions that the tenant has received up to the sions take effect upon becoming law. maximum of one month’s rent. z HB 1277 If approved by the Governor, these provi- Residential Tenancies sions take effect upon becoming law. The bill amends the landlord’s available remedies in s. 83.595, F. S., to provide that if the landlord retakes possession after the early termination of the rental agreement, the

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ment may not reduce any transportation trip- z HB 1375 generation entitlements of an approved Affordable Housing development-of-regional-impact develop-

Comprehensive plans; plan elements ment order. The employment center must The bill clarifies that the housing element employ at least 25 or more full-time employ- contained in the local comprehensive plan ees. must identify adequate sites for affordable The bill provides that all phase, buildout, and workforce housing. By July 1, 2008, each expiration dates for projects that are devel- county that is not designated as an area of opmentsof-regional-impact and under active critical state concern, and for which the gap construction on July 1, 2007, are extended between the buying power of a family of for three years regardless of any prior ex- four and the median county home sales tension. The 3-year extension is not a sub- prices exceeds $170,000, must adopt a stantial deviation, is not subject to further plan to ensure affordable workforce housing, review, and must not be considered when defined as housing that is affordable to natu- determining if a subsequent extension is a ral persons or families whose total house- substantial deviation requiring review as a hold income does not exceed 140 percent development of regional impact. of the area median income, adjusted to household size. The county’s failure to The bill also creates an exemption from re- adopt an affordable workforce housing plan view as a substantial deviation for changes will result in the county being ineligible to re- that permit the sale of an affordable housing ceive any state housing assistance grants until unit to a person who earns less than 120 the plan is adopted. percent of the area median income, if a developer actively markets the unit for a mini- Development of Regional Impact mum period of six months and is unable to This bill provides a transportation concurrency close a sale to a qualified buyer in a lower exemption for certain affordable housing units income qualified class. A certificate of occu- in close proximity to employment centers. Spe- pancy must have been issued for the unit, cifically, the bill authorizes a local government and the unit must be sold at a purchase price and a developer of affordable workforce hous- that is not greater than the purchase price at ing units in a project subject to the substantial which the unit was originally marketed to a deviation requirements governing a change in lower income qualified class. The new exemp- a development of regional impact, or subject tion may not be applied to residential units to the statutory statewide guidelines and stan- already exempt under s. 380.06(19)(b)7. dards to determine review as a development and (i), and expires on July 1, 2009. of regional impact, to identify an employment center or centers located within 5 miles from The bill amends statewide guidelines and the nearest point of the development of re- standards for determining when certain de- gional impact to the nearest point of the velopments are required to undergo devel- employment center. If at least half of the opment of regional impact review to remove units are occupied by an employee or em- a limitation restricting hotel or motel develop- ployees of an identified employment center ment accommodating 750 or more units, in or centers, all the affordable workforce hous- counties with a population of 500,000 or ing units are exempt from transportation con- more, to geographic areas specifically desig- currency requirements, and the local govern-

85 2007 LEGISLATIVE REPORT

nated as highly suitable for increased thresh- with the requirements of the evaluation and old intensity in the approval of local compre- appraisal report. hensive plans and the strategic regional policy plan. Hotel and motel development may be Affordable Housing Tax Deferral permitted in other locations but will still be sub- Program ject to development of regional impact re- The bill creates an affordable housing tax de- view if the number of units exceeds 750 or ferral program in ss. 193.307 - 197.3079, more. F.S., by authorizing a board of county commissioners or the governing authority Comprehensive plan amendments of a municipality to adopt an ordinance to The bill allows any local government that allow for the deferral of ad valorem taxes identifies within a comprehensive plan the and non-ad valorem assessments if the own- types of housing development and conditions ers of the property are engaging in the op- for which it will consider plan amendments eration, rehabilitation, or renovation of af- which are consistent with the local housing fordable rental housing property. The ordi- incentive strategies required for participation nance must specify the percentage or amount in the State Housing Initiatives Partnership Pro- of the deferral and the type and location of gram, to expedite consideration of those plan the affordable housing rental property, and amendments. Requirements for consideration the deferral is applicable only to taxes levied of the amendment are provided and the local by the unit of government granting the defer- government is authorized to hold only one ral. Deferrals may not be granted for taxes public hearing which shall also be the plan and assessments levied for the payment of amendment adoption hearing. Local govern- bonds or for taxes authorized by a vote of the ment plan amendments which are consistent electors, and any deferral granted remains in with the local housing incentive strategies re- effect for the period for which it is granted quired under s. 420.9076, F. S., are not sub- regardless of any change in the authority of ject to the twice per year limitation on the the county or municipality to grant the defer- frequency of plan amendments required un- ral. der s. 163.3 187(1), F.S. The use of the property as affordable housing Evaluation and appraisal of the must be maintained over the deferral period comprehensive plan or the total amount of deferred assessments, The bill allows the appropriate local gov- taxes and interest becomes due and pay- ernment to adopt a plan amendment in order able on November 1 of the year in which the to integrate a port comprehensive master use of the property was changed. The bill plan with the coastal management ele- establishes conditions under which a defer- ment of the local comprehensive plan, ral may not be granted; establishes notice notwithstanding the prohibition on the requirements; restricts the total amount of de- adoption of plan amendments until the ferred taxes and assessments, together with evaluation and appraisal report update interest, to not more than 85 percent of the amendments have been adopted and assessed value of the property; and provides transmitted to DCA. The port comprehensive that deferred assessments and interest consti- master plan or the proposed plan amend- tute a prior lien on the affordable rental hous- ment cannot have caused or contributed to ing property. An application process and an the failure of the local government to comply appeals process are created, and penalties

86 CARLTON FIELDS, P.A.

are provided for persons who willfully file in- nonprofit organization must be a sponsor of correct information relating to a deferral. an affordable housing project for the elderly, and the project must have provided afford- Florida Housing Finance Corporation able housing to the elderly for 15 years or The bill makes several revisions and clarifi- more. The share of the loan to be forgiven cations relating to the duties and responsi- must be attributable to the units in the project bilities of the Florida Housing Finance Corpo- that are reserved for extremely-low-income ration (corporation.) The corporation is elderly tenants. deemed to be a state agency for purposes of the state allocation pool, can provide notice of Community Workforce Housing internal review committee meetings by pub- Innovation Pilot Program (C WHIP) lication on an Internet website, and is not The bill provides the corporation with rule- governed by the provisions of ch. 617, making authority to create a loan application F.S. relating to corporations not for profit, process for the CWHIP program. The appli- but is governed by the requirements of ch. cation process must include selection criteria, 420, part V, F.S. Outdated language relating an application review process, and a funding to the authority of the corporation to enter into process. The corporation must also establish an employee lease agreements with the De- application review committee that may in- partment of Management Services or the clude up to three private citizens represent- Department of Community Affairs is deleted, ing the areas of housing or real estate de- as is outdated language relating to the transfer velopment, banking, community planning, or of assets from the Florida Housing Finance other areas related to the development or Agency to the corporation in 1998. financing of workforce and affordable housing. As a condition of financing an affordable housing multifamily rental project, the corpora- The application selection criteria and review tion may require that an agreement be re- process must include a way for errors in the corded in the official public records of the application or in responses to issues raised county in which the real property for the pro- during the review process to be cured so long ject is located. The agreement must require as no substantial change is made to the that the project be used for affordable hous- project. The review committee is authorized ing for persons that meet specific income to approve or reject loan applications or criteria. The recorded agreement is a state responses due to insufficiency of informa- land use regulation limiting the highest and tion provided, and must make recommen- best use of the property for purposes of dations on program participation and fund- determining just value under s. 193.011(2), ing to the corporation’s board of directors. F.S. The board of directors must approve or reject the review committee’s recommended par- The corporation is authorized to forgive a ticipants, determine the tentative loan share of a loan to a nonprofit organization, amount to be made available to each ap- if the loan is made from funds set aside for plication selected for funding, and rank all sponsors of housing for the elderly to make of the approved applications. After all ap- building preservation, health or sanitation plications are ranked, the board of directors repairs or improvements, or life-safety or selects the program participants and deter- security-related repairs or improvements. The

87 2007 LEGISLATIVE REPORT

mines the maximum loan amount for each citizen who represents employers within the participant. jurisdiction, and a citizen who represents essential service personnel as defined in a The bill authorizes local governments to use local housing assistance plan. Local govern- State Housing Initiative Partnership (SHIP) pro- ments that receive a minimum allocation un- gram funds for the CWHIP program to assist der the SHIP program may have an advisory persons or families whose total annual income committee with fewer members. does not exceed 140 percent of the area median income, adjusted for household size. The bill authorizes the advisory committees to In areas of critical state concern for which recommend comprehensive plan changes to the Legislature has declared its intent to pro- their local governments. The committees must vide affordable housing, and in areas that review the established policies and proce- were designated as areas of critical state dures, ordinances, land development regu- concern for at least 20 years prior to the re- lations, and the adopted local comprehen- moval of the designation, local governments sive plan amendments every three years, may use SHIP funds for the CWHIP program and must submit a report to their local to assist persons or families whose total an- governments recommending and evaluating nual income does not exceed 150 percent of the implementation of affordable housing the area median income, adjusted for incentives. The committees may perform ad- household size. ditional responsibilities related to affordable housing at the request of their local govern- The bill requires that CWHIP funding be tar- ments, including creating best management geted to innovative projects where the differ- practices for the development of affordable ence between the area median income and housing in the community. Local housing and the median sales price for a single-family planning departments are directed to coopera- home, and where population growth as a per- tively staff the advisory committees. centage rate of increase are the greatest. Pro- jects must be funded in as many counties and Public Housing Authorities regions of the state as is practicable, and Self-Insurance Funds priority funding consideration must be given The bill authorizes any two or more public to specified projects. Clarifications are made housing authorities in the state to create a to the expedited plan amendment process for self-insurance fund for the purpose of self- CWHIP projects and the adoption of CWHIP insuring real or personal property against loss plan amendments is not subject to the twice or damage from any hazard or cause, and per year limitation on the frequency of plan against any loss consequential to such loss or amendments under s. 163.3 187(1), F.S. An damage, if the state requirements for local expedited process for approvals of develop- government self-insurance funds established in ment orders or development permits for s. 624.4622, F.S., are met. Public housing CWHIP projects is required. authorities who are members of a self- insurance fund created under this provision Local Affordable Housing Advisory are exempt from the assessments imposed Committees under the insurance risk apportionment The bill provides that membership in local plan, the Florida Insurance Guaranty Asso- affordable housing advisory committee is in- ciation Act, and the Florida Hurricane Catas- creased from 9 to 11 members by adding a trophe Trust Fund.

88 CARLTON FIELDS, P.A.

Miscellaneous Provisions upland property adjoining the beach restora- The bill revises the corporation’s annual re- tion project, the enhancement, if any, in value porting requirements to include a report on of the owner’s remaining adjoining property CWHIP addressing the success of the proof the upland property owner by reason of gram in meeting the housing needs of the the beach restoration project shall be con- eligible areas. Also, all notes, mortgages, sidered. If a taking is judicially determined to security agreements, letters of credit, or other have occurred as a result of a beach restora- instruments that arise out of, or that are given tion project, the enhancement in value to the to secure the repayment of, loans issued in owner’s remaining adjoining property by rea- connection with the financing of the corpora- son of the beach restoration project shall be tion’s projects, are exempt from documentary offset against the value of the damage, if any, stamp and intangible taxes. The cap on pre- resulting to such remaining adjoining property development loans made by the corporation of the upland property owner by reason of is raised from $500,000 to $750,000, or the beach restoration project, but such en- the lesser of the development and acquisition hancement in the value shall not be offset costs for the project. against the value of the property or property right alleged to have been taken. If the en- If approved by the Governor, these provisions hancement in value exceeds the value of the take effect July 1, 2007. damage, if any, there shall be no recovery over against the property owner for such ex- z SB 1472 cess. Beach & Shore Preservation This bill amends the definition of public The DEP is directed to develop a sand source access for sandy beaches to provide that inventory which identifies offshore sand where the public has established an access- sources. Additionally, county commissions of way through private lands to lands seaward coastal counties will be required to be noti- of the mean high tide or water line by pre- fied when there is a proposal to use adjacent scription, prescriptive easement, or any other sand sources outside of the region. legal means, development or construction shall not interfere with such right of public ac- If approved by the Governor, these provi- cess unless a comparable alternative access- sions take effect July 1, 2007. way is provided. z HB 1491 The bill allows the Department of Environ- Community Development Districts mental Preservation (DEP) to issue permits for This bill amends a number of provisions gov- dune restoration projects that incorporate geo- erning community development districts textile containers or similar structures and (CDDs or districts) in order to: specifies the requirements governing the installation of these types of structures. o Allow CDDs to be multi-county.

The bill provides that in any action alleging o Revise the definitions of the terms “cost”, a taking of all or part of a property or prop- “water management and control facilities”, erty right as a result of a beach restoration and “water system.” project, in determining whether such taking has occurred or the value of any damage al- o Require a petitioner to pay a filing fee leged with respect to the owner’s remaining and submit a copy of the petition to a

89 2007 LEGISLATIVE REPORT

county only if the CDD will be located in supervisor of elections, for the election of an unincorporated area; the filing fee and board members. a copy of the petition goes to the municipality if the CDD will be located within an o Provide a process to address a situation incorporated area. where there is no qualified elector for a seat on the board of a CDD. o Require a CDD located within multiple local governments’ jurisdictions to pay a o Eliminate a conflict of interest, effective $15,000 filing fee to each jurisdiction. October 1, 2007, for a board member, district manager, or other employee of the o Require a CDD located across county district who is employed by an entity affili- boundaries to maintain records, hold meet- ated with a landowner. ings and hearings, and publish notices only in the county where the majority of o Move the CDD budget process up one the district’s acreage lies. month, to June 15, and require that the budget reflect not only taxes and assess- o Allow public hearings on a petition for a ments, but also other revenues to the dis- new CDD only in counties and munici- trict. palities in which the proposed CDD will be located and municipalities that are o Require a CDD to record its disclosure contiguous to the proposed boundaries of documents and amendments to those the CDD. documents in the property records of each county in which the district is lo- o Limit those issues that may be addressed cated. in an ordinance establishing a CDD to those matters that would be contained in o Expand the special powers of a CDD to a rule adopted by the Florida Land and allow for the financing or construction Water Adjudicatory Commission of: districts roads and improvements to (FLWAC) to establish a CDD, except for roads owned by or which will be con- certain optional powers consented to by veyed to a local general-purpose govern- the commission. ment, or the state or federal government; street lights, alleys, landscaping and o Require a petition to establish a CDD that hardscaping (i.e., entry feature); the un- will be located within 2 municipalities to dergrounding of electric utility lines; and, be filed with FLWAC regardless of the any other project, facility, or service re- size of the CDD. quired by a governmental authority with jurisdiction in the district for the issuance o Require that platted lots be counted indi- of a development approval, zoning con- vidually, with each lot rounded up to the dition, or a permit within the CDD. nearest whole acre, for purposes of determining the number of voting units held o Provide that a CDD can finance, con- by a landowner or a landowner’s proxy struct and maintain projects, facilities or in a CDD. services required by a development approval, interlocal agreement; zoning o Require at least 2 weeks notice of the condition or permit issued by a govern- qualifying period, as established by the mental authority with jurisdiction in the

90 CARLTON FIELDS, P.A.

district. foreclose a lien in favor of the district. o Authorize a CDD to request the under- o Authorize a CDD board to use competi- ground placement of utility lines by the tive solicitation, including a request for local retail electric utility provider in ac- proposals or qualifications, when pur- cordance with the utility’s tariff on file chasing goods, supplies, materials, or with the Public Service Commission. construction services in certain instances and, if no response is received, to pro- o Authorize a CDD with the consent of the ceed with the purchase in the manner the local government to construct and maintain board deems in the best interest of the site improvements related to school build- district. ings which will be leased, sold, or do- nated to the school district. o Require a CDD wholly located in an unincorporated area and which meets the o Allow a CDD to enforce deed restrictions population standards for incorporation, pertaining to property outside the district as determined by the Department of pursuant to an interlocal agreement un- Community Affairs, and satisfies the der ch. 163, F.S. other requirements for incorporation in s. 165.061, F.S., to hold a referendum at a o Clarify that before a CDD board may general election on whether to incorpo- adopt rules regarding the enforcement of rate. certain deed restrictions, the majority of the board for residential districts must If approved by the Governor, these provisions have been elected by qualified electors. take effect July 1, 2007, except as otherwise expressly provided. o Provide that non-ad valorem assessments levied to pay interest on bond anticipation z SB 1824 notes are not assessments for purposes Mortgages of the 30-year limitation on district as- The bill provides greater consumer protections sessments in s. 190.022, F.S. related to the mortgage loan application process and provides greater compliance and o Allow the notice of the proposed amount enforcement authority for the regulator, the of special assessments and maintenance Office of Financial Regulation (OFR). The bill: special assessments, including the date and time of the hearing, prepared and o Requires mortgage brokers and lenders delivered by the property appraiser to be offering adjustable rate mortgages to used in lieu of the notice provisions in s. provide borrowers with a copy of the 197.3632(4)(b), F.S. Consumer Handbook on Adjustable-Rate Mortgages, which explains the different o Provide that special assessments author- loan products and the potential risks as- ized under ch. 170, F.S., relating to local sociated with these products. municipal improvements, shall constitute a lien against real property which is co- o Requires that brokers disclose to borrow- equal with ad valorem taxes until paid. ers the amount of payment that the brokers will receive from lenders no later than o Allow a CDD to use ch. 170, F.S., to three business days after brokers become

91 2007 LEGISLATIVE REPORT

aware of the exact amount, and no later mits mortgage fraud if, with the intent to de- than three business days prior to closing. fraud, the person knowingly: o Requires the good faith estimate to be o Makes any material misstatement, misrep- signed and dated by the mortgage broker resentation, or omission during the mort- or lender and borrower. gage lending process with the intent that such information will be relied upon by a o Requires borrowers to be notified of any party to the mortgage lending process; material changes to the terms of a previously offered loan within three days of be- o Uses or facilitates the use of any material ing made aware of the change and no misstatement, misrepresentation, or omis- later than three business days before clos- sion, with the intention that the misstate- ing. The licensee bears the burden of prov- ment, misrepresentation, or omission will ing that the notice was provided and that be relied on by a party to the mortgage the borrower accepted the new terms. lending process; o Permits a borrower to waive the right to o Receives any proceeds or other funds in notice if the borrower determines that the connection with a mortgage lending extension of credit is needed to meet a process that the person knew resulted bona fide personal financial emergency from such a misstatement, misrepresenta- and provides a written statement meeting tion, or omission; or certain criteria to the broker regarding the emergency. Permits imminent foreclosure o Files with the clerk of the court for any to be a basis for a personal financial county in Florida a document related to a emergency for which a waiver of notice mortgage lending process which contains is sought. a material misstatement, misrepresentation, or omission. o Authorizes the OFR to pursue an enforcement action against mortgage brokers and Finally, the bill provides that any mortgage mortgage lenders who violate the federal fraud violation is considered to have been Real Estate Settlement Procedures Act committed in the county in which the real (RESPA) or the federal Truth-in-Lending property is located or in any county in which Act. a material act was performed in furtherance of the violation. The provision will allow flexi- o Authorizes the OFR to impose an adminis- bility for the venue for prosecution and inves- trative fine of up to $5,000 for each sepa- tigation. rate violation of ch. 494, part I, F.S. If approved by the Governor, these provisions o Allows the OFR to charge a fee, not to take effect October 1, 2007. exceed $50, for mortgage brokerage applicants to review their mortgage bro- z SB 1844 kerage test results. Homeowner's Associations The bill provides for lien foreclosures by The bill also makes mortgage fraud a third- homeowner’s associations. It provides that degree felony. Under the bill, a person com- a homeowner may recover from the previous owner any amount that the present owner

92 CARLTON FIELDS, P.A.

has paid on an assessment. It provides for the foreclosure action for the amount in the the assessment of interest and late fees for qualifying offer plus any amounts accruing delinquent assessments. It provides that un- after the date of the qualifying offer. paid assessments earn interest at the rate provided in the declaration of covenants or If approved by the Governor, these provi- the bylaws of the association, but that rate sions take effect July 1, 2007. may not exceed 18 percent. This provision is identical to the provisions interest accru- z SB 1972 ing on unpaid assessments for condomini- Leases/Private Property/ ums under ch. 718, F. S. State Agency This bill provides for state agency use of invi- The bill requires that the homeowner’s asso- tations to negotiate when soliciting for leased ciation must give the homeowner a written space in privately owned buildings, and notice or demand for the past due amounts designates requirements for the use of invi- at least 45 days before bringing an action tations to bid, requests for proposals, and to foreclose on the lien. It specifies the ad- invitations to negotiate. An invitation to nego- dresses to which the written notice must be tiate may be used only when an invitation to sent, including the parcel address and the bid or a request for proposal will not result in last known address of the homeowner if it is the best value to the state. not at the parcel address. The bill would permit the homeowner’s association to recover The bill makes permanent four provisions that reasonable attorney’s fees in a lien foreclo- would otherwise expire: sure action or in an action to recover a o A requirement that the Department of money judgment. Management Services (DMS) annually The bill provides that, if unit owner files with publish a master leasing report concern- the court a written “qualifying offer” to pay all ing agency leases. amounts due plus interest, the foreclosure ac- o A requirement that lease terms include tion is stayed for a period not to exceed 60 certain specified clauses. days in order to permit the homeowner to pay the delinquent amount. The bill specifies o A requirement that the DMS may not ap- requirements for the written qualifying offer, prove agency amendment of standard including prohibiting the homeowner’s asso- lease terms unless a comprehensive fi- ciation from adding any legal fees incurred nancial analysis demonstrates that the by the association during the period of amendment is in the state’s long-term the stay. The bill permits the association to best interest. add costs to defend in a mortgage foreclosure action, in a bankruptcy proceeding in o A requirement that the DMS annually up- which the owner is a debtor, or in response to date its plan for implementing stated leg- a filing by another party in the lien foreclo- islative policy of using state-owned build- sure action. ings before leasing privately-owned buildings. The bill provides that if the parcel owner breaches the qualifying offer, the stay is va- The bill requires the DMS to implement a cated and the association may proceed with strategic leasing plan for state agencies, and

93 2007 LEGISLATIVE REPORT

allows the DMS to use the services of a ten- maintain official records exists in a county ant broker in implementing the plan. The bill office other than the clerk of court or comptrol- allows agencies to use the services of a ten- ler; two members appointed by the Florida ant broker in procuring leased space if the Land Title Association; one member appointed tenant broker is an awarded vendor on a by the Florida Bankers Association; and one term contract that contains specified provi- attorney appointed by the Real Property, sions. Agencies may use the services of the Probate, and Trust Law Section of The Florida current tenant broker until October 15, 2007, Bar. The bill provides that the Committee shall with the prior approval of the DMS. Payments terminate on July 1, 2010, and that the Flor- made to a tenant broker must be made by the ida Association of Court Clerks and Comp- state, not a lessor, subject to appropriation by trollers shall provide administrative and tech- the Legislature. nical support to the Department of State and the Committee. If approved by the Governor, these provisions take effect July 1, 2007. Lastly, the bill provides that certain electronic documents are subject to the same excise tax z SB 2038 as paper documents, and that the return that Real Property Electronic Recording states the actual consideration paid for an This bill adopts the Uniform Real Property interest in real property, which must be filed Electronic Recording Act, which begins the prior to the recordation of any deed transfer- process of electronic recording of real prop- ring an interest in real property, may be filed erty documents with county recorders. The electronically. bill provides county recorders the legal authority to prepare for electronic recording of If approved by the Governor, these provi- real property instruments, and authorizes sions take effect upon becoming law. county recorders to begin accepting records in electronic form, storing electronic z SB 2052 records, and setting up systems for search- Environmental Protection ing for and retrieving these records. The bill This bill amends various provisions relating to equates electronic documents and electronic solid and hazardous waste management. signatures to original paper documents and Specifically the bill: manual signatures, so that any requirement for originality (paper document or manual o Deletes the provisions relating to Keep signature) is satisfied by an electronic docu- Florida Beautiful, Inc. ment and signature. o Abolishes the Wildflower Advisory This bill creates an Electronic Recording Advi- Council that was created within Keep sory Committee (Committee), with which the Florida Beautiful, Inc. This council Department of State consults when adopting administered the wildflower grant and standards to implement electronic recording. education programs that are funded The Committee shall consist of nine members: by the use fees from the Wildflower five members appointed by the Florida Asso- License Plate. These use fees will now ciation of Court Clerks and Comptrollers, be distributed to the Florida Wildflower one of whom must be an official from a Foundation, an IRS 501(c)(3) corporation large urban charter county where the duty to to administer the wildflower grant and education programs.

94 CARLTON FIELDS, P.A.

o Transfers the Adopt-a-Shore Program to allow more projects to qualify. that was created within Keep Florida Beautiful to the Department of Environ- o Deletes the provisions relating to the train- mental Protection (DEP). ing of operators for waste-to-energy facilities, biomedical waste incinerators, and o Alphabetizes the definitions used in the mobile soil thermal treatment units or fa- Solid Waste Management Act. Defini- cilities. These operators are subject to the tions that are not used were deleted and DEP’s rules relating to air permits. The definitions found elsewhere in the act DEP has never had a separate solid were moved to the definitions section. waste training program for these operators. o Deletes obsolete language relating to Class II landfills and biomedical incin- o Amends the definition of “waste tire” to erators from the Solid Waste Manage- exclude solid rubber tires and those ment Act. There are no Class II landfills that cannot be separated from the rim. being permitted and biomedical incinerators are regulated by the DEP under its o Reduces the local match requirements for air program. local governments to receive hazardous waste collection grants. The match re- o Allows the DEP to exempt, by rule, certain quirement may be waived under certain solid waste management facilities from circumstances. the permit requirements if that facility is not expected to pose any significant o Repeals the Statewide Multipurpose Haz- threat to the environment or to public ardous Waste Facility Siting Act. This act health. An example would be yard trash has never been used. processing facilities. If approved by the Governor, these provisions o Clarifies that a permit to operate a take effect July 1, 2007. solid waste management facility may not be transferred by the permittee z HB 7123 without the consent of the DEP. To Energy transfer a permit, the permittee must The bill creates the Energy Policy Govern- show proof of any financial assurance ance Task Force to recommend a unified ap- required by the department. The new proach to state energy policy including permittee must agree to accept responsi- energy conservation and research, de- bility for any corrective actions required velopment, and the deployment of alterna- as a result of a department enforcement tive and renewable energy technology. The order or a consent order. task force is to consist of: two members appointed by the President of the Senate; two o Provides for the management of hurricane members appointed by the Speaker of the vegetative debris. To the greatest extent House of Representatives; two members practicable, recycling and reuse of storm- appointed by the Governor; the Commis- generated vegetative debris is encour- sioner of Agriculture or a designee; the Sec- aged. retary of the Department of Environmental Pro- tection or a designee; a vice-president for re- o Broadens the innovative grant program

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search designated by the Council of Vice- identify business and investment opportuni- Presidents for State University Research; the ties in the area of alternative energy devel- Chair of the Florida Energy Commission or a opment and aerospace industry expansion. designee; the Chair of the Florida Public Ser- vice Commission or a designee; and the Pub- The bill amends statutes on energy effi- lic Counsel. Task force members must be ap- ciency and conservation in state-owned pointed no later than August 1, 2007. The task buildings. It revises criteria for energy con- force must submit its report to the Governor, servation and sustainability of state-owned President of the Senate, and Speaker of the buildings; requires buildings constructed and House of Representatives no later than Febru- financed by the state to meet an approved rat- ary 1, 2008. ing system; requires state agencies to identify state-owned buildings that are suitable for a The bill provides a renewable energy source guaranteed energy performance savings con- exemption on real property in which solar tract; requires the Department of Management energy devices are installed and operated. Services (DMS) to evaluate identified facilities Such exemption shall only apply on devices and develop an energy efficiency project installed after July 1, 2007. schedule; and revises provisions relating to guaranteed energy performance savings con- The bill creates a new Farm-to-Fuel Grants Pro- tracts to allow DMS and the Chief Financial gram within the Department of Agriculture and Officer greater authority to review and ap- Consumer Services (DACS). In reviewing prove contracts for state agencies that pro- grant applications, DACS is required to: con- duce an energy related cost savings. sult with and solicit input from the Department of Environmental Protection; consult with per- The bill provides for transfer of the corporate sons having expertise in renewable energy income tax credit based upon investment in technologies, and for the economic feasibility, renewable energy technology. The bill pro- consult with the Office of Tourism, Trade and vides for a renewable energy production credit Economic Development. Subject to appropria- for the producer of electricity when such use tion, the bill creates new incentives for the of the electricity decreases the amount of elec- production and retail sale of biofuels begin- tricity that would otherwise be purchased by ning after January 1, 2008, the Biofuel Retail the producer. It provides that the taxpayer’s Sales Incentive Program and the Florida Bio- use of the renewable energy production fuel Production Incentive Program. credit shall not reduce the amount of alternative minimum tax credit pursuant to s. The bill establishes a Green Schools Pilot 220.186, F.S. Project to meet specified energy ratings; requires that all newly constructed county, The bill provides for reservation of solar re- municipal, and public community college bates and revises the rebate eligibility and ap- buildings meet a specified energy-efficiency plication requirements for solar photovoltaic rating; establishes minimum standards (sub- systems. ject to availability) for total diesel fuel purchases for use by state-owned diesel vehicles The bill requires the Department of Environ- and equipment and (subject to availability) for mental Protection to develop greenhouse gas use by school districts. The bill creates, sub- inventories that account for annual green- ject to specific appropriation, the Florida En- house gases emitted to and removed from ergy, Aerospace, and Technology Fund to

96 CARLTON FIELDS, P.A.

the atmosphere, and forecast gases emitted 4. the Department of Agriculture and Con- and removed. The inventory must also include sumer Services in conjunction with the emissions which are considered carbon neu- Department of Environmental Protection is tral. required to recommend an appropriate Florida Loan Guarantee Program for cellu- The bill provides for the construction of a re- losic ethanol facilities; search and demonstration cellulosic ethanol plant to be operated as a satellite facility by 5. the Department of Community Affairs is the Institute of Food and Agricultural Services required to convene a work group to iden- (IFAS) at the University of Florida. tify, review, and report on new or updated energy conservation standards for The bill directs the Florida Building Commis- certain products that consume electricity. sion to convene a workgroup to: develop a model residential energy efficiency ordinance; Finally, the bill revises provisions under the review the cost-effectiveness of energy- Power Plant Siting Act and the Transmission efficiency measures in the construction of Line Siting Ac that are considered technical residential, commercial, and government corrections for administrative purposes. buildings; and, by January 1, 2008, develop and implement a public awareness campaign If approved by the Governor, these provi- that promotes energy efficiency and the sions take effect July 1, 2007. benefits of building green. z HB 7203 The bill requires several studies and reports: Growth Management The bill makes a number of changes relating 1. the Public Service Commission, in con- to growth management, including the areas junction with the Florida Energy Commis- of financial feasibility, transportation concur- sion, the Department of Environmental rency, school concurrency, port master plans, Protection, and the Department of Agricul- developments of regional impact (DRIs), ture and Consumer Services, is required transportation concurrency backlog areas, tax to recommend a Renewable Portfolio increment financing, and an alternative [to] Standard; state review process pilot program.

2. the Public Service Commission, in conjunc- Comprehensive Plans tion with the Florida Energy Commission, and Financial Feasibility the Department of Environmental Protec- The definition of “financial feasibility” is re- tion, and the Department of Agriculture vised to provide that a local comprehensive and Consumer Services, is required to plan is financially feasible for purposes of recommend an energy efficiency and transportation and school concurrency if the solar energy incentive, including a public adopted level-ofservice standards are benefits fund and net metering; achieved and maintained by the end of the appropriate planning period. The deadline for 3. the Public Service Commission is required local governments to adopt and transmit an to report the methods it uses to evaluate update of the capital improvements schedule utilities’ conservation programs; which meets financial feasibility requirements is extended by one year, to December 1, 2008. Also, penalties for failing to update

97 2007 LEGISLATIVE REPORT

the capital improvements schedule do not multiuse DRIs in s. 163.3 180(12), F.S., is take effect until December 1, 2008. broadened to include DRIs, Florida Quality Developments, and certain optional sector This bill also provides that, at a local govern- plans. Proportionate fair-share mitigation un- ment’s discretion and notwithstanding s. der s. 163.3 180(16), F.S., which applies to 163.3 180, F.S., a comprehensive plan is sub-DRIs may be used for “pipelining” or deemed financially feasible with respect to multiple transportation improvements rea- transportation facilities, as revised by a plan sonably related to the development and those amendment, if the amendment is supported improvements may address one or more by a DRI development order condition or modes of travel. This bill expressly limits pro- binding agreement that satisfies the require- portionate share mitigation and proportionate ments of s. 163.3180(12), F. S. Similarly, the fair-share mitigation to the impacts a develop- comprehensive plan will be deemed finan- ment has on a transportation system and this cially feasible for transportation concurrency does not include reducing or eliminating if a plan amendment is supported by a backlogs. binding agreement that is consistent with s. 163.3 180(16), F.S., and the property sub- School Concurrency ject to the amendment is located in an area The bill allows a development to move for- designated for certain types of urban devel- ward even if there is inadequate school ca- opment and the binding agreement is pacity as long as “accelerated facilities” are based on the maximum amount of devel- included in years 4 or later of the capital opment allowed under the map amendment. improvements schedule, or will be included in the next update of the capital improve- Transportation Concurrency ments schedule, or there is a binding Under this bill, local governments are author- agreement with the school district to con- ized to waive transportation concurrency in an struct these facilities. The cost of the accel- urban service area that has been designated erated facility must be equal to or greater than as a transportation concurrency exception the development’s proportionate share. The area (TCEA) and includes lands appropriate developer shall receive impact fee credits for compact urban development. The land usable within the attendance zone where included in the TCEA may not exceed the the accelerated facility is constructed or in a amount of land needed to accommodate contiguous attendance zone once the devel- the projected population growth at densities oper conveys the school district to the school consistent with the comprehensive plan for a district. 10-year period. The TCEA must also be served or planned to be served with public Plan Amendments to Integrate facilities. Port Master Plans The bill allows the appropriate local gov- The roles of the Department of Community ernment to adopt a plan amendment in order Affairs (DCA or the state land planning to integrate a port comprehensive master agency) and the Florida Department of Trans- plan with the coastal management element portation (FDOT) are revised, relating to the of the local comprehensive plan, notwith- assessment and mitigation of impacts to Stra- standing the prohibition on the adoption of tegic Intermodal System (SIS) facilities. The plan amendments until the evaluation and proportionate-sharecontribution language for appraisal report update amendments have

98 CARLTON FIELDS, P.A.

been adopted and transmitted to DCA. The ment, the local government shall transmit the port comprehensive master plan or the pro- amendment with supporting data and analy- posed plan amendment cannot have caused ses to DCA and any other state agency or or contributed to the failure of the local gov- local government that provided timely com- ernment to comply with the requirements of ments. An affected person, as defined in s. the evaluation and appraisal report. 163.3 184(1)(a), F.S., or DCA may challenge a plan amendment adopted by a pilot Developments of Regional Impact community within 30 days after adoption of (DRI) the amendment. DCA’s challenge is limited to The bill provides that all phase, buildout, and those issues raised in the comments by the expiration dates for DRI projects that are un- reviewing agencies. The bill explicitly states der active construction on July 1, 2007, the Legislature strongly encourages DCA to are extended for three years regardless of focus any challenge on issues of regional or any prior extension. The 3-year extension is statewide importance. State agencies are not a substantial deviation, is not subject to prohibited from promulgating rules to im- further review, and must not be considered plement the pilot program. when determining if a subsequent extension is a substantial deviation requiring review as a The Office of Program Policy Analysis and development of regional impact. Government Accountability (OPPAGA) is required to submit a report to the Legislature Alternative [to] State Review Process and the Governor by December 1, 2008, Pilot Program regarding reduced state oversight of local The bill designates Pinellas and Broward comprehensive planning in urban areas. Counties, the municipalities within those two The report and its recommendations must counties, and the Cities of Jacksonville, Mi- address specific, identified issues. OPPAGA ami, Tampa, and Hialeah as pilot communi- shall consult with specified entities while ties. Municipalities within the pilot counties preparing the report and recommendations. may elect, by a super majority vote, not to Four full-time positions are established in the participate in the pilot program. These pilot Division of Community Planning in DCA to communities will follow an alternate, expe- provide technical assistance and advice to dited process for plan amendments that state and local governments regarding provides for limited state agency review. The growth-related issues and compliance with pilot communities will transmit plan amend- ch. 163, F.S. ments, along with supporting data and analyses to specified state agencies and local gov- Transportation Concurrency Backlog ernmental entities after the first public hearing Areas on the plan amendment. Comments from state This bill allows local governments to create, agencies may include technical guidance on through an interlocal agreement, a transporta- issues of agency jurisdiction as it relates to ch. tion concurrency backlog area for the pur- 163, part II, F.S., the Growth Management pose of using tax increment financing to Act. Comments are due back to the local fund the construction and maintenance of government proposing the plan amendment transportation improvements to resolve back- within 30 days of receipt of the amendment. log and deficiency issues. The governing board of the county or municipality would Following a second public hearing that shall comprise the authority’s membership and de- be an adoption hearing on the plan amend-

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velop and implement a plan to eliminate all sufficient to provide additional recreational backlogs within its jurisdiction. The plan must and ecotourism opportunities for residents in identify all roads designated as failing to the tax increment area. meet concurrency requirements and include a schedule for financing and construction to The tax increment shall be determined annu- eliminate the backlog within 10 years of ally, but may not exceed 95 percent of the plan adoption. The plan is not subject to the difference in ad valorem taxes as provided in twice-per-year limitation on comprehensive s. 163.3 87(1)(a), F.S. Tax increment reve- plan amendments. nues are to be paid into a separate reserve account. These tax increment revenues may To fund the plan’s implementation, each au- be spent to purchase the identified conserva- thority must collect and earmark, in a trust tion lands only if all parties to the interlocal fund, tax increment funds equal to 25 percent agreement approve the purchase price. There of the difference between the ad valorem is an interest penalty for failure to pay the tax taxes collected in a given year and the ad increment revenues into the separate reserve valorem taxes which would have been col- account as required by the interlocal agree- lected using the same rate in effect when ment. The tax increment revenues may be the authority is created. Upon adoption of bonded, but revenue bonds are payable the transportation concurrency backlog plan, solely out of revenues pledged to and depos- all backlogs within the jurisdiction are ited in the separate reserve account. deemed financially feasible for purposes of calculating concurrency. The authority is Miscellaneous dissolved upon completion of all backlogs. The bill extends the duration of certain development agreements between a local gov- Tax Increment Financing ernment and a developer from 10 to 20 The bill authorizes 2 or more counties, or at years to coincide with longer-term concur- least one county and one or more municipali- rency management systems that, under exist- ties, to enter into an interlocal agreement es- ing law, range from 10-15 years. tablishing a tax increment area that will generate revenue for the purchase of conserva- This bill provides conservation easements tion lands. It also allows a water management shall survive the issuance of a tax deed. district in which the conservation lands are located to enter into the interlocal agreement Also, the bill provides DCA with rulemaking if the district contributes ad valorem revenues authority to implement a provision in the Gen- for the purchase. eral Appropriations Act relating to the distribution of Local Update Census Addresses The bill provides minimum requirements for (LUCA) technical assistance grants. the interlocal agreement. DCA is required to review the boundary of a tax increment This bill includes airport passenger terminals area to determine whether the proposed and concourses, air cargo facilities, and han- purchase of conservation lands will benefit gars for the maintenance or storage of aircraft property owners within the boundary and in the list of public transit facilities that are ex- serve a public purpose. Before any of the iden- empt from concurrency requirements. tified conservation lands are purchased, the If approved by the Governor, these provi- DEP must determine whether the purchase is sions take effect July 1, 2007.

100

2007 Florida Legislature Post-Session Report

Health Care & Health Insurance

HEALTH CARE & HEALTH INSURANCE z HB 97 Medicare Supplement Policies The bill redefines the term “Medicare supplement policy” for purposes of the Florida Medicare Supplement Reform Act (ss. 627.671-627.675, F.S.), to exclude from regulation under this act, a policy or plan of one or more employers that have at least 50 employees at issue, or trustees of a fund established by one or more employers for employees or former employees, if, upon termi- Vice Chair Ed Hooper, center, R-Clearwater, helps guide the nation of eligibility, group members age 65 Committee on Healthy Families during an opening day meet- or older are offered continuation of coverage ing. (House Photo by Mark Foley) under the group plan or a conversion policy that has the same benefits as a Medicare the applicable laws of the state where the Supplement policy. master group policy is issued.

By excluding policies or plans for Medicare If approved by the Governor, these provi- supplement insurance provided to employers sions take effect July 1, 2007. from the definition of “Medicare supplement policy” (whether the policy was issued in z SB 246 Florida or issued to an out-of-state group) the Certificates of Need/ state Medicare supplement requirements of Level I/Cardiology Services part VIII of chapter 627, F.S., would not ap- The bill allows the holder of a certificate of ply to such policies or plans. However, if the need for a newly licensed hospital to apply Medicare supplement policy is issued to an for and be granted certification for Level I employer in Florida, the provisions of the adult interventional cardiology services re- Insurance Code that apply to insurance poli- gardless of whether rules relating to Level I cies in general and to “health insurance” programs have been adopted by the Agency policies in particular, other than those in ch. for Health Care Administration, as long as 627, part VIII, F.S., would continue to apply. the following criteria are met: the hospital For example, rates and policy forms for must be a newly licensed hospital with a cer- health insurance are subject to filing and tificate of need and located in a former hospi- approval by the OIR pursuant to ss. tal; the former hospital must have provided a 627.410 and 627.411, F.S. If the policy is minimum of 300 adult inpatient and outpa- issued to an employer outside of Florida, the tient diagnostic cardiac catheterizations for department would not have regulatory au- the most recent 12-month period; and the thority to assist Florida insureds who have newly licensed hospital must have a for- problems or complaints with the insurer. malized, written transfer agreement with a However, any policy issued to such an em- hospital that has a Level II program, including ployer would still be required to comply with written transport protocols to ensure transfer within 60 minutes. A hospital that meets the

103 2007 LEGISLATIVE REPORT

requirements may apply for certification be- The bill designates the organ and tissue do- fore taking possession of the former hospital. nor registry required to be maintained by the The effective date of the Level I program status coalition as the “Joshua Abbott Organ and will be concurrent with the effective date of Tissue Donor Registry.” The bill provides the newly issued hospital license. specific duties for the coalition including operating and maintaining the donor registry If approved by the Governor, these provi- and developing and implementing, with the sions take effect July 1, 2007 Department of Highway Safety and Motor Vehicles, a coordinated program to allow z SB 248 individuals to make anatomical gifts. The bill Clinical Nursing Specialties requires the coalition to comply with Florida’s The bill defines “clinical nurse specialist prac- Open Government laws. tice” and defines “clinical nurse specialist” as any person licensed in Florida to prac- The bill clarifies the criteria under which per- tice professional nursing and certified in sons may make anatomical gifts and provides clinical nurse specialist practice. Proce- technical revisions to the Uniform Donor dures are specified for a nurse to be certi- Card. The bill requires the agency to continue fied as a clinical nurse specialist. The bill to maintain oversight and certification re- revises the restrictions on the use of protected sponsibilities regarding organ procurement nursing titles and abbreviations to include organizations and to assess fees for this pur- “Clinical Nurse Specialist,” “Certified Regis- pose. The bill renames the Florida Organ and tered Nurse Anesthetist,” and “Certified Tissue Donor Education and Procurement Nurse Midwife.” Trust Fund as the Florida Organ and Tissue Procurement Trust Fund. If approved by the Governor, these provisions take effect July 1, 2007. The bill appropriates $607,000 in nonrecurring funds from the Florida Organ and Tissue z HB 455 Procurement Trust Fund to the Agency for Organ & Tissue Donation Health Care Administration to contract with the The bill transfers responsibility for maintain- Florida Coalition on Donation for the orderly ing the organ and tissue donor registry from transition of the organ donor registry. the Agency for Health Care Administration to the Florida Coalition on Donation, Inc., an If approved by the Governor, these provi- existing private non-profit corporation es- sions take effect July 1, 2007. tablished by Florida’s certified organ procurement organizations. Costs to maintain the z HB 543 registry and for educational purposes aimed at Pharmacist Kevin Coit Memorial Act increasing the number of organ and tissue The bill creates the Pharmacist Kevin Coit Me- donors are paid for by funds from the volun- morial Act. The bill authorizes a Florida- tary contribution of $1 from driver’s license licensed pharmacist to administer influenza applicants and operators of motor vehicles, virus immunizations to adults under a pro- mopeds, motorized bicycles, and mobile tocol with a supervisory Florida-licensed homes, collected by the Department of osteopathic or medical physician. The pro- Highway Safety and Motor Vehicles. tocol must contain specific procedures for addressing any unforeseen allergic reaction to

104 CARLTON FIELDS, P.A. the immunization. The bill establishes re- z SB 590 quirements for a pharmacist seeking to im- HMO Contract/ munize patients, including: New Subscriber's Rights This bill amends subsection (25) of section o Maintenance of at least $200,000 of 641.31, F.S., to expand the right of a sub- professional liability insurance; scriber covered under a HMO contract who o Maintenance of patient records using the is a resident of a continuing care facility or a same standards for confidentiality as for retirement facility, to be referred to that facil- other patient records; ity’s skilled nursing unit or assisted living facility. The bill deletes the current requirement o Entering into a protocol with a supervising that the HMO primary care physician make a physician which specifies certain terms determination that such care is in the best in- and conditions; terests of the subscriber. Instead, the bill requires that such referral be requested by the o Written approval to administer vaccina- subscriber and agreed to by the facility, if the tions from the pharmacy owner; primary care physician finds that such care is medically necessary. The bill retains the re- o Obtaining training and immunization cer- quirements that the facility agree to be reim- tification approved by the Board of bursed at the HMOs contract rate negotiated Pharmacy in consultation with the Board with similar providers for the same services of Medicine and the Board of Osteo- and supplies; and that the facility meet all pathic Medicine; and guidelines established by the HMO related to quality of care, utilization, referral au- Completion of 20 hours of continuing o thorization, risk assumption, use of the HMOs education classes approved by the Board network, and other criteria applicable to proof Pharmacy, including instruction in safe viders under contract for the same services and effective administration of influenza vi- and supplies. The bill further requires that rus immunizations and potential allergic HMOs provide in writing a disclosure of reactions to influenza virus immuniza- such rights to new subscribers who reside at tions. a continuing care facility or retirement facility, including the right to use a specified The bill creates a task force for the study of grievance process in the event their request biotech competitiveness within the Gover- to be referred to the skilled nursing unit or nor’s Office of Tourism, Trade, and Eco- assisted living facility at their place of resi- nomic Development and provides its duties dence is not honored. and responsibilities. The task force is required to report its findings to the Governor If approved by the Governor, these provi- and Legislature by January 1, 2009. sions take effect July 1, 2007. If approved by the Governor, these provi- z SB 650 sions take effect July 1, 2007. Osteopathic Physicians The bill combines existing language for obtaining a license by examination and a license by endorsement to practice osteopathic medicine in Florida into the general licensure

105 2007 LEGISLATIVE REPORT

requirements for osteopathic physicians. In funds received from an HMO and held by addition to the current licensure requirements these entities, which have an obligation to for persons to practice osteopathic medicine, distribute those funds to health care provid- the bill requires applicants to not have re- ers who contract with the HMO. ceived less than a satisfactory evaluation from an internship, residency, or fellowship-training The bill revises the definition of entities that program. The evaluation must be provided by must be registered as a FISO by deleting the the director of medical education from the exemption for entities that are owned, op- medical training facility. erated, or controlled by certain licensed entities. Generally, under the provisions of the The bill revises requirements for the registra- bill, only the licensed entities themselves tion of persons wishing to practice osteo- would be exempt, including hospitals, au- pathic medicine as residents, interns, or thorized insurers, third party administra- fellows in training programs in Florida so tors, prepaid limited health service organi- that they must register before commencing zations, and HMOs. The current exemption the training program. The registrants must pay for physician group practices would be lim- a fee, upon annual renewal of the registra- ited to group practices providing services tion, of no greater than $300 as set by the under the scope of licenses of the members Board of Osteopathic Medicine. The bill re- of that group practice. The bill exempts from vises the penalty for certain criminal offenses the FISO registration and regulatory provi- applicable to the registration of residents em- sions not-for-profit corporations that pro- ployed to practice osteopathic medicine. Un- vide health care services directly to pa- der the revised criminal offense, the hospital or tients through employed, salaried physicians administrator must willfully fail to register a and that are affiliated with an accredited resident or furnish the required information to hospital licensed in Florida from the FISO be liable for the offense and is subject to im- registration and regulatory provisions. The position of penalties applicable to a first- bill exempts FISOs owned by third-party degree misdemeanor rather than a second- administrators (TPAs) from the surety bond degree misdemeanor. requirements; however, the FISO would be subject to the other FISO requirements in the The bill repeals s. 459.006, F.S., relating to bill. licensure by examination, and s. 459.007, F.S., relating to licensure by endorsement. The bill further requires FISOs to comply with certain statutory requirements that ap- If approved by the Governor, these provi- ply to HMOs relating to payment of claims, sions take effect July 1, 2007. including the prompt payment of claims; paying claims for which treatment authorization z SB 666 procedures have been followed; and re- Fiscal Intermediary Services quirements for adverse determinations of Organizations/Health Care claims. In addition, the Office of Insurance The laws regulating health maintenance or- Regulation would be required to periodically ganizations (HMOs) also provide for the regu- examine their operations and to take reme- lation of fiscal intermediary services organi- dial action when necessary. zations (FISOs) by the Office of Insurance Regulation. The law is designed to protect

106 CARLTON FIELDS, P.A.

If approved by the Governor, these provisions The bill requires the Department of Health take effect October 1, 2007. (DOH) to serve as a coordinating and strategic planning body to actively assess Flor- z SB 682 ida’s current and future physician work- Nursing Facilities force needs and work with multiple stake- The bill changes the frequency of visits to holders to develop strategies and alternatives nursing facilities by quality-of-care monitors to address current and projected physician from quarterly to annually, however, if a nurs- workforce needs. The DOH must maximize ing facility requests quarterly visits by quality- the use of existing programs under the DOH of-care monitors the Agency for Health Care and other state agencies and coordinate gov- Administration must continue to provide quar- ernmental and nongovernmental stakeholders terly visits. It requires quarterly visits by qual- and resources in order to develop a state ity-of-care monitors for conditionally licensed strategic plan and assess the implementa- nursing facilities and visits for other nursing tion of the strategic plan. The bill specifies a facilities as directed by the agency. The variety of functions the DOH must undertake bill authorizes nursing facilities having a as part of developing the strategic plan. The standard license to develop a plan to provide DOH must maintain a database to serve as a training for certified nursing assistants. The statewide source of data concerning the phy- bill deletes the requirement for nursing facili- sician workforce. ties to submit an adverse incident report to the agency within one day after an adverse The bill requires each Florida-licensed allo- incident is reported to the facility’s risk man- pathic or osteopathic physician, in conjunc- ager. The risk manager for the facility will tion with the renewal of his or her license un- determine whether an incident is an adverse der procedures adopted by the DOH, to fur- incident. The bill provides that the most nish specified information to the DOH in a recent survey is considered a licensure physician survey. The bill lists the information survey for purposes of future survey schedul- for inclusion in the physician survey to be de- ing. The bill clarifies that compliance with veloped by the DOH. The DOH is granted federal posting standards satisfies state post- rulemaking authority to develop the physician ing standards relating to staff on duty. survey.

If approved by the Governor, these provi- The DOH must issue a nondisciplinary citation sions take effect July 1, 2007. to any Florida-licensed allopathic or osteopathic physician who fails to complete the z SB 770 survey within 90 days after the renewal of Physician Workforce Assessment his or her license to practice as a physician. & Development The citation must notify a physician who fails The bill expresses legislative intent, which to complete the required survey that his or her recognizes that physician workforce planning license will not be renewed for any subsequent is an essential component of ensuring that licensure renewal unless the physician com- there is an adequate and appropriate supply pletes the survey. In conjunction with issuing of well-trained physicians to meet Florida’s the license-renewal notice, the DO11 must no- future health care service needs. tify each allopathic or osteopathic physician who has failed to complete the survey at the licensee’s last known address of record with

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the DO11, of the requirement that the physi- now covered under ch. 408, part II, F.S. cian survey be completed prior to the subse- Some of the areas affected by the changes quent license renewal. At any subsequent are license fees; the license application proc- license renewal, the DO11 may not renew ess; payment of late fees; inspections; the es- the license of any allopathic or osteopathic tablishment of procedures and rules for the physician, until the required survey is com- electronic transmission of required informa- pleted by the licensee. tion; procedures for the change in ownership; background screening; unlicensed Each year, the DO11 must analyze the results activity; administrative fines; moratoriums of the required physician survey and determine and emergency suspensions; license denial or by geographic area and specialty the num- revocation; injunctive proceedings; fees and ber of physicians who: fines to be deposited in the Health Care Trust Fund; and license duration. The bill speci- o Perform deliveries of children in Florida; fies in the various specific licensure statutes that the provisions of ch. 408, part II, o Read mammograms and perform breast- F.S., apply. imaging-guiding procedures in Florida; The bill also makes numerous changes to o Perform emergency care on an on-call statutory cross-references to reflect the move- basis for a hospital emergency department of ch. 400, parts III, VII, and V, F.S., to ment; ch. 429, parts I, II, and III, F.S., and the resulting renumbering of the parts in ch. 400, o Plan to reduce or increase emergency on-call hours in a hospital emergency F.S. department; or The bill expands an exemption from clinic licensure for entities that provide health care o Plan to relocate their allopathic practice or osteopathic practice outside of Flor- services by licensed practitioners solely within ida. a hospital. The bill provides an exemption from clinic licensure under the Health Care The DO11 must report its findings to the Gov- Clinic Act for orthotic and prosthetic clinical ernor and the Legislature by November 1 of facilities that are wholly owned, directly or each year. indirectly, by a publicly traded corporation. The bill defines a publicly traded corporation If approved by the Governor, these provisions to mean one that issues securities traded on take effect upon becoming law. an exchange registered with the United States Securities and Exchange Commission as a z SB 992 national securities exchange. Health Care Providers Licensure The bill conforms the Florida Statutes to legis- If approved by the Governor, these provi- lation enacted during the 2006 Regular Ses- sions take effect July 1, 2007. sion relating to health care providers regulated by the Agency for Health Care Ad- z HB 1007 ministration. The bill amends and repeals Physician Assistants/Prescriptions those portions of the specific licensure statutes The bill allows a supervisory physician to dele- for health care facilities and services that are gate the authority to dispense drugs to a phy-

108 CARLTON FIELDS, P.A. sician assistant. The authority to dispense may a reimbursement level no less than 80 be delegated only by a supervising physician percent of the reimbursement that would who is registered as a dispensing practitioner be paid to a physician providing the as required by Florida law. The physician as- same service. sistant is not required to register as a dispensing practitioner. The physician assistant o Repeals the authorization of a statewide must note the dispensing of medication in the laboratory services contract for Medicaid appropriate medical record. recipients.

If approved by the Governor, these provi- o Eliminates the requirement that a nurs- sions take effect July 1, 2007 ing home provider receive a reimbursement rate that is equivalent to the z SB 1116 previous owner’s rate after a change of Health Care ownership; to eliminate a requirement The bill provides statutory changes to conform that Medicaid will not pay coinsurance to the FY 2007-2008 General Appropriations and deductibles for services that are not Act. Specifically, the bill: provided by Medicaid; and to limit Medicaid payments for nursing home o Allows dentists to qualify for loan repay- Medicare Part A coinsurance to the ment assistance, travel, and relocation Medicaid per diem rate less any amount reimbursement during their last two years paid by Medicare, but only up to the of residency training or upon completion Medicare coinsurance amount. of residency training, in return for an agreement to serve a minimum of two o Updates the years of audited data used in years in the Florida Health Services determining Medicaid and charity care Corps. days for each hospital in the Dispropor- tionate Share program from 2000, 2001 o Repeals references to the Florida Health and 2002 to 2001, 2002, and 2003; Services Corps Trust Fund and replace with and updates the state fiscal year dates the Administrative Trust Fund. from FY 2006-2007 to FY 2007- 2008 to allow for payments under the Dispro- o Requires a hospital to meet specific criteria portionate Share program. to qualify for a reimbursement rate adjustment. o Updates the state fiscal year dates from FY 2005-2006 to FY 2007-2008, continuing o Allows the Agency for Health Care Ad- the prohibition on distributing funds ministration to pay for all-inclusive psychi- through the Regional Perinatal Intensive atric inpatient hospital care for Medicaid Care Disproportionate Share program. recipients age 65 and older in qualified private freestanding specialty hospitals. o Updates the state fiscal year dates from FY 2006-2007 to FY 2007-2008, to allow for o Allows the Agency for Health Care Ad- disproportionate share payments to ministration to pay for all services provided teaching hospitals. to a Medicaid recipient by an anesthe- siologist assistant licensed under s. o Updates the state fiscal year dates from FY 458.3475, F.S. or s. 459.023, F. S. at 2006-2007 to FY 2007-2008, continuing

109 2007 LEGISLATIVE REPORT

the prohibition on distributing funds o Prohibits a pharmacist from dispensing a through the Primary Care Disproportion- drug for immunosuppressive therapy fol- ate Share program. lowing transplant unless the drug is the specific formulation and manufactured by o Requires capitated prepaid behavioral the specific manufacturer as prescribed by health managed care companies to pro- the physician; and allows a pharmacist to vide an annual report to the Agency for substitute a drug product that is generi- Health Care Administration that includes cally equivalent for immunosuppres- the annual percentage of the capitation sive therapy following transplant only if expended for behavioral health care ser- the pharmacist obtains a signed authori- vices; and eliminates the requirement that zation from the prescribing physician. 80 percent of the capitation paid to a prepaid behavioral health managed care o Requires the Agency for Health Care Ad- plan be expended for behavioral health ministration to notify the Legislature before services and that the difference be re- implementing programs authorized under turned to the agency if expenditures fall the federal Deficit Reduction Act of 2005. below 80 percent. o Requires the Agency for Health Care Ad- o Repeals obsolete language that required ministration to give priority consideration the Agency for Health Care Administra- in medicaid managed care enrollment to tion to modify contracts by January 1, certain managed care plans until the pro- 2001 with entities providing comprehen- viders reach 15,000 members per month; sive inpatient and outpatient mental and to prohibit enrollment assignment to a health care services to Medicaid recipi- managed care plan that has an enroll- ents in Hillsborough, Highlands, Hardee, ment of 25,000 or more members state- Manatee, and Polk Counties. wide. o Exempts Medicaid-eligible children whose o Eliminates the requirement that managed cases are open for child welfare services care per-member per-month rate aver- in the HomeSafeNet system and who re- ages do not exceed the amount in the side in Area 10, from having to participate General Appropriations Act for the fiscal in the separate specialty prepaid plan year in which the rates are in effect; in- operated by the community-based lead creases the percentage payment limit agencies. used in the methodology for reimbursing managed care providers by 0.5 per- o Allows the Agency for Health Care Ad- cent on January 1, 2008 and an addi- ministration to calculate prepaid behav- tional 1.5 percent on January 1, 2009; ioral health plan capitation rates using and requires that the payment limit for an encounter data system methodology managed care per-member per-month based on 90 percent fee-for-service data rates do not exceed 100 percent for any and 10 percent encounter data in the first area or eligibility category. year of payments; and, 75 percent fee- for-service data and 25 percent encoun- o Excludes independent laboratory services ter data in the second and third years of from the Medicaid explanation of bene- payments. fits.

110 CARLTON FIELDS, P.A. o Requires long-term care community diver- o Limit the dispensing of a Schedule II drug sion pilot projects to include hospice care in an emergency upon an oral prescrip- provided by a licensed hospice provider. tion to a 72-hour supply; o Waives the biennial license renewal o Limit the dispensing of a Schedule III fee for up to 10,000 allopathic or os- drug upon an oral prescription to a 30- teopathic physicians, who have a day supply; valid, active license to practice under chapters 458 and 459; whose pri- o Preclude a pharmacist from dispensing mary practice address, as reported un- a controlled substance listed in Sched- der s. 456.041, is located within the ules II, III, and IV to any patient or pa- state; and who submit to the department, tient’s agent without first determining, in prior to the applicable license renewal the exercise of her or his professional date, a sworn affidavit that the physi- judgment, that the order is valid, however, cian is prescribing medications exclu- a pharmacist may dispense the controlled sively through the use of electronic pre- substance, in the exercise of her or his scribing software at the physician’s pri- professional judgment, when the phar- mary practice address. The term “elec- macist or pharmacist’s agent has ob- tronic prescribing software” is defined tained satisfactory patient information to mean, at a minimum, software that from the patient or the patient’s agent; electronically generates and securely transmits, in real-time, a patient prescrip- o Exempt any pharmacist who dispenses tion to a pharmacy; to allow the depart- by mail a controlled substance listed in ment to adopt rules; and to provide an o Schedules II, III, and IV from the require- expiration date of the section of law on ment to obtain suitable identification for July 1, 2008. the prescription dispensed by mail if the If approved by the Governor, these provi- pharmacist has obtained the patient’s sions take effect July 1, 2007. identification through the patient’s prescription benefit plan; z HB 1155

Drugs & Pharmacies o Authorize a pharmacist to record a pre- The bill creates a third-degree felony offense scription electronically if permitted by for any person who, with the intent to injure or federal law for certain controlled sub- defraud any person or to facilitate any viola- stances; and tion of specified prohibited acts under the Flor- o Impose additional requirements on pre- ida Comprehensive Drug Abuse Prevention scriptions for controlled substances in and Control Act, sells, manufactures, alters, Schedule II, Schedule III, or Schedule IV delivers, utters, or possesses any counterfeit to prevent diversion. resistant prescription blanks for controlled substances. The bill requires the Agency for Health Care Administration to develop an electronic pre- The bill amends existing law relating to the scribing clearinghouse and provide informa- dispensing of controlled substances by a tion regarding electronic prescribing on the pharmacist to: agency’s website. The bill requires the

111 2007 LEGISLATIVE REPORT

agency to monitor public and private sector or she were advised in accordance with initiatives on the subject and report to the the Florida Medical Consent Law. Governor and the Legislature by January 31 of each year on the progress of imple- The bill amends the Florida Medical Consent mentation of electronic prescribing. Law to add advanced registered nurse practitioners and physician assistants to the list of The bill also creates s. 893.065, F. S., to re- health care providers from whom no recov- quire the Department of Health to develop ery is allowed in an action brought for treat- counterfeit-resistant prescription blanks for ing, examining, or operating on a patient Schedule II through IV drugs. without the patient’s informed consent when the elements of informed consent are satis- The bill specifies that, if a person dies of an fied. apparent drug overdose, the law enforcement agency and medical examiner must respec- If approved by the Governor, these provi- tively prepare reports identifying the Schedule sions take effect July 1, 2007. II, III, or IV controlled substances on or near the deceased. The law enforcement report z SB 1700 must identify the person who prescribed the Physician Assistants/ controlled substance. Paramedic Certification The bill adds physician assistants to the list of If approved by the Governor, these provi- health care practitioners who may be certified sions take effect July 1, 2007. as a paramedic. A physician assistant may be certified if he or she is certified in Florida z SB 1508 as an emergency medical technician (EMT), Informed Consent/Medical has passed the required EMT curriculum, has The bill adds Florida-certified advanced regis- successfully completed an advanced cardiac tered nurse practitioners and Florida-licensed life support course, has passed the examina- physician assistants to the list of health care tion for certification as a paramedic, and providers who are granted immunity in actions has met other certification requirements brought for examining or treating a patient specified by rule of the Department of without his or her informed consent if: Health. Any physician assistant so certified must be recertified under the regulations for o The patient at the time of the examination paramedic certification. or treatment is intoxicated, under the influence of drugs, or otherwise incapable If approved by the Governor, these provi- of providing informed consent as re- sions take effect July 1, 2007. quired under the Florida Medical Con- sent Law; z SB 1758 Hospitals/ o The patient at the time of the examination Off-premises Emergency Department or treatment is experiencing an emergency The bill provides that additional hospital off- medical condition; and premises emergency departments may not be authorized by the Agency for Health Care o The patient would reasonably undergo the Administration until January 1, 2009. How- examination, treatment, or procedure if he ever, the bill allows for the licensure of an off- premises emergency department if initial li-

112 CARLTON FIELDS, P.A. censure application documents were filed as an educator or trainer for an ALF or before April 30, 2007, and stage 2 architec- other long-term care facility employees; tural plans are submitted as of July 1, 2007, or stage 2 architectural plans are approved o Possess experience as a trainer of core by July 15, 2007, as long as the hospital requirements for the DOEA; or complies with requirements imposed on off- premises emergency departments licensed o Meet other qualification criteria as de- prior to July 1, 2007. fined in rule.

If approved by the Governor, these provi- The bill requires the DOEA to adopt rules to sions take effect July 1, 2007. establish trainer registration requirements. z SB 1916 The bill amends s. 429.907, F.S., to provide Assisted Living Facilities/ an exception to the separate license require- Adult Day Care ment for separate premises of adult day care The bill amends s. 429.52, F.S., to require centers in the case of disaster or emergency the Department of Elderly Affairs (DOEA) to that renders the current facility unusable. Un- adopt, or contract for the development of, a der these circumstances, the licensee may curriculum for training staff at Assisted Living continue operation at one or more premises Facilities (ALFs). The bill authorizes the de- under their current license for up to 180 partment to consult with stakeholder agencies days. The premises must be included in the and associations in the development of the licensee’s comprehensive emergency man- curriculum. agement plan and approved by the county emergency management authority. The licen- The bill requires that the training under s. see of the adult day care center must notify 429.52(1), F.S., be conducted by a person Agency for Health Care Administration and registered with the DOEA and requires the county emergency management authorities DOEA to adopt rules establishing require- within 24 hours of beginning operation in a ments for trainer registration. The bill provides separate premise. that a person seeking the DOEA registration as a trainer must have completed the minimum If approved by the Governor, these provisions core training education requirements, and take effect July 1, 2007. must have passed the core competency test. z SB 2114 The person must maintain continuing educa- Independent Living Transition tion, and must also: Services o Possess a four-year degree from an ac- Adolescence is a time of growth, learning, credited school and must have worked and developing independence, and most in a management position in an ALF for youth, with the support of their family, make three years since completing the core edu- a successful transition to adulthood. How- cation requirements and being certified; ever, youth in the foster care system often lack the guidance, support, and training to learn o Possess five years experience with an ALF the skills necessary to function independently in a management position subsequent to when they leave the system. Independent liv- completion of the core requirements and ing transition services are designed to help certification and one year of experience foster youth and young adults formerly in fos-

113 2007 LEGISLATIVE REPORT

ter care obtain life skills and education so o Mandates that youth between the ages of that they can live independently. 16 and 18 be formally evaluated for subsidized independent living services under This bill makes a number of changes to the certain circumstances; laws pertaining to independent living transition services. Specifically, the bill: o Allows certain foster children to contract for financial services despite being mi- o Permits a caseworker at an agency at nors; and which a minor has been placed in foster care to sign the minor’s application for a o Extends Medicaid eligibility from age 20 learner’s driver’s license without assum- to age 21. ing liability for damages caused by the minor driver (this exemption is already The bill appropriates $420,358 from the available to foster parents and group General Revenue Fund to DCF, and appro- home representatives); priates $519,479 from the General Revenue Fund and $686,089 from the Medical Care o Permits a caseworker at an agency at Trust Fund to the Agency for Health Care which a minor has been placed in foster Administration to implement the act. care to sign and verify the minor’s application for a driver’s license pursuant to a If approved by the Governor, these provisions court-approved transition plan without take effect July 1, 2007. assuming personal liability for damages caused by the minor driver; z SB 2260 Department of Health/ o Provides that foster parents or caregivers State Surgeon General who develop a written plan of goals for a The bill designates the head of the Depart- transitioning child will not be held re- ment of Health as the State Surgeon General. sponsible under administrative rules or The bill deletes references to the Secretary laws pertaining to state licensure as a re- of Health, replacing them with the title sult of any actions of the child pursuant to “State Surgeon General.” The State Surgeon the plan; General must serve as the leading voice on wellness and disease prevention efforts, in- o Makes young adults who finish high cluding the promotion of healthful lifestyles, school before they age out of foster immunization practices, health literacy, and care eligible for the Road to Independ- the assessment and promotion of the physi- ence Program; cian and health care workforce in order to meet the health care needs of the state. The o Makes young adults who are placed State Surgeon General must focus on advo- with a court-approved dependency cating healthful lifestyles, developing public guardian or adopted from foster care af- health policy, and building collaborative part- ter reaching age 16 eligible for inde- nerships with schools, businesses, health care pendent living transition services, specifi- practitioners, community-based organizations, cally for the Road to Independence Pro- and public and private institutions in order gram; to promote health literacy and optimum quality of life for all Floridians.

114 CARLTON FIELDS, P.A.

If approved by the Governor, these provi- plicants who must sit for the SPEX examina- sions take effect July 1, 2007. tion. z SB 2634 The bill revises requirements for chiropractic Hospice Facility Construction physician licensure to allow a student, in his The bill authorizes the Agency for Health or her final year of an accredited chiropractic Care Administration (agency), at the request school or college, to apply for licensure, take of the prospective licensee of an inpatient all of the required examinations for licensure, hospice facility, to provide an informal review submit a set of fingerprints, and pay all fees for of the facility plans prior to construction to licensure. A chiropractic student who takes assist the facility in complying with the Florida and successfully passes the licensure exami- Building Code requirements. It further author- nations and who otherwise meets all re- izes the agency to charge a nonrefundable quirements for licensure as a chiropractic fee commensurate with the cost of providing physician during the student’s final year must this consultation. have graduated before being certified for licensure by the Board of Chiropractic Medi- If approved by the Governor, these provisions cine. take effect upon becoming a law. The bill revises requirements for the issuance of z SB 2858 a chiropractic medicine faculty certificate, to Chiropractic Medicine authorize the certificate to be issued to an The bill revises requirements for chiropractic individual who has accepted a full-time faculty physician licensure to delete a requirement appointment at a college of chiropractic in that applicants must have successfully com- Florida that has been accredited by the pleted specified parts of the National Council of Chiropractic Education. The faculty Board of Chiropractic Examiners certification position is no longer required to be at a pub- examination within 10 years immediately licly funded university or college. preceding application to the Department of Health. The bill corrects the references to the The bill restricts the indirect supervision of a examination to state that applicants must certified chiropractic physician’s assistant to pass part III of the certification examination, the address of record or place of practice of which is the portion that tests clinical compe- the supervising chiropractic physician as re- tency. The Florida Board of Chiropractic quired by s. 456.03 5, F.S., other than at a Medicine is authorized to require an applicant clinic licensed under ch. 400, part X, F.S. who has graduated from an institution ac- Any certified chiropractic physician’s assistant credited by the Council on Chiropractic Edu- who is certified by the Board of Chiropractic cation more than 10 years before the date Medicine to perform services at a licensed of application to take the National Board clinic may only perform those services under of Chiropractic Examiners Special Pur- the direct supervision of the chiropractic phy- poses Examination for Chiropractic sician to whom the assistant is assigned. (SPEX), or its equivalent, as determined by the Florida Board of Chiropractic Medicine. Effective July 1, 2008, the bill prohibits any The Florida Board of Chiropractic Medicine person other than a sole proprietorship, group must establish by rule a passing score for ap- practice, partnership, or corporation that is wholly owned by one or more chiropractic

115 2007 LEGISLATIVE REPORT

physicians, or chiropractic physicians and care organizations to make payment to their relatives, from employing a chiropractic nursing homes that bill electronically and physician or engaging a chiropractic physi- provides for an alternative capitated cian as an independent contractor to provide payment to prospectively pay nursing chiropractic services, with certain exceptions. homes at the beginning of each month. A violation of this prohibition is a third- degree felony. o Provides that OPPAGA is to evaluate the pilot for 24 months after enrollment The bill requires chiropractic continuing edu- of recipients into the pilot program and cation to be continuing education that is pro- submit the report to the Legislature, no later vided in the form of contact classroom hours, than December 31, 2009. which requires face-to-face classroom interaction. o Requires AHCA to provide a report to the Governor and Legislature that contains an If approved by the Governor, except as oth- analysis of the merits and challenges of erwise provided, these provisions take effect seeking a federal waiver to implement July 1, 2007. a voluntary program that integrates Medicare and Medicaid payments for z HB 7065 persons 65 years of age or older, no Medicaid later than December 31, 2007. The bill amends s. 409.9 12, F.S., to require the Agency for Health Care Administration o Clarifies county participation in Medi- (AHCA) to implement Florida Senior Care, an caid nursing home payments for both integrated fixed-payment delivery program for health maintenance members and fee-for- Medicaid recipients 60 years of age or older service beneficiaries. or persons dually eligible for Medicare and Medicaid. Specifically, the bill: If approved by the Governor, these provisions take effect July 1, 2007. o Requires implementation of the program on a pilot basis in Area 7 (Orange, Os- z HB 7165 ceola, Seminole, and Brevard counties) Hospitals and Area 11 (Dade and Monroe counties) The bill revises the definition of the types of on a voluntary basis. specialty hospitals that may not be licensed or relicensed by the Agency for Health Care o Allows any qualified managed care entity Administration. Instead of defining these pro- to participate and offer services to enrol- hibited specialty hospitals by enumerating lees in the pilot areas. specific diagnosis-related groups (DRGs), the bill defines them by major diagnostic catego- o Provides enrollees with access to the Sub- ries (a higher level of classification than scriber Assistance Panel grievance process DRGs) or by the principal diagnosis or rea- as well as requires AHCA to maintain an son for admission. The bill creates an ex- informal and formal provider grievance emption from this prohibition for any hospi- system. tal classified as an exempt cancer center hospital pursuant to 42 C.F.R. s. 412.23(f) o Adds a 10-business-day prompt payment as of December 31, 2005. requirement for participating managed

116 CARLTON FIELDS, P.A.

The bill changes the terms cardiology and interventional cardiology services to cardiovascular services throughout s. 408.0361, F.S., which relates to licensure of hospital cardiology services and burn units. The grandfathered licensure status of certain hospitals with adult interventional cardiology services or burn units is changed from a period specified in rule to until July 1, 2008.

The bill deletes the inclusion in rules of a standard data set for measuring outcomes of hospital adult cardiovascular services consisting of data elements reported to the agency in accordance with s. 408.061, F.S. It also requires Level I and Level II hospitals to participate in clinical outcome-reporting systems operated by the American College of Cardiology and the Society for Thoracic Surgeons.

If approved by the Governor, these provisions take effect July 1, 2007.

117

2007 Florida Legislature Post-Session Report

Insurance & Financial Services Please see Health Care & Health Insurance for bills regarding health insurance.

INSURANCE & FINANCIAL SERVICES z 1-A (Special Session) Hurricane Preparedness and Insurance This act (Chapter 2007-1, L.O.F.) is the result of a Special Session called specifically to address the affordability and availability of property insurance in the State of Florida, and to revise the Florida Building Code.

Florida Hurricane Catastrophe Fund

The act substantially increases the amount of hurricane losses covered by the Florida Hurri- House Domestic Security Committee member Rep. Priscilla Taylor, R-Riviera Beach, gestures as she offers a question to a cane Catastrophe Fund (Cat Fund), which is presenter before the committee. Left shows Rep. Ari Porth, D- a tax-exempt state fund administered by the Coral Springs. (House photo by Mark Foley) State Board of Administration (SBA). The Cat billion, in $1 billion increments, above the Fund reimburses insurers for a portion of their current Cat Fund annual limit of $16 billion residential hurricane losses in exchange for estimated for 2007 (i.e., up to a total of $28 a premium that is much lower than what billion). The SBA may further increase the limits private reinsurers charge. This results in by an additional $4 billion (i.e., up to $32 lower premiums to policyholders and en- billion). The TICL coverage will reimburse ables a greater number of policies to be writ- the insurer for 90 percent, 75 percent, or 45 ten. The Cat Fund helps stabilize the property percent of the insurer’s losses above its reten- insurance market, particularly after an active tion, at the same percentage selected by the hurricane period, as Florida experienced in insurer for its mandatory Cat Fund cover- 2004 and 2005, that is followed by in- age. Insurers must pay a premium estab- creased costs and lower availability of pri- lished by the SBA under the same method vate reinsurance. for determining “actuarially indicated” premiums for the mandatory Cat Fund cover- Currently, Cat Fund coverage is mandatory, age, which generally establishes a premium but the additional coverage authorized by equal to the estimated average annual loss for this act would be optional to insurers, as fol- the coverage purchased. Based on current lows: loss models, this is expected to be a pre- o Allows residential property insurers to mium equal to about 3 percent of the cover- purchase additional coverage above age amount (commonly referred to as a 3 the current maximum limits of the Cat percent “rate-online.”) These premiums are Fund, referred to as Temporary Increase significantly lower than charged by private in Coverage Limit options (“TICL”), for reinsurers and are the primary source of the 2007, 2008, and 2009 contract premium savings under this act. years. The TICL options allow an in- o Allows residential property insurers to pur- surer to purchase additional reinsur- chase additional coverage below each in- ance for its share of up to $12 surer’s market share of the Cat Fund reten-

121 2007 LEGISLATIVE REPORT

tion, referred to as Temporary Emergency coverage amount is above a retention Additional Coverage Options equal to 30 percent of the insurer’s sur- (“TEACO”), for the 2007, 2008, and plus, as of December 21, 2006. The 2009 contract years. For 2007, the Cat premium is set at 50 percent of the Fund retention is estimated to be $6 bil- coverage amount (i.e., $5 million for lion. Currently, each insurer is responsi- $10 million coverage). The coverage ble for paying all hurricane losses up to applies to two hurricanes and is of- its share of the retention for each hurri- fered only for the 2007 contract cane, except that the retention drops to year. This is similar to the $10 mil- one-third of the full retention for a third lion coverage that was offered in 2006 hurricane or more in one year. The to “limited apportionment companies,” TEACO options allow an insurer to se- which are generally insurers with $25 lect its share of a retention level of $3 million in surplus or less. The act will billion, $4 billion, or $5 billion, to cover again make this coverage available, 90 percent, 75 percent, or 45 percent of this time to insurers who participated in its losses up to the normal retention for 2006, limited apportionment companies the mandatory Cat Fund coverage. that began writing property insurance in The act establishes the premiums that 2007, and insurers approved to par- insurers must pay for the TEACO op- ticipate in either 2006 or 2007 for tions. For the $3 billion retention, the the Insurance Capital Build-Up Incen- premium is an 85 percent rate-on-line; tive Program pursuant to s. 215.5595, for the $4 billion retention, the premium F.S. is an 80 percent rate-on-line; and for the $5 billion retention, the premium is a 75 Other changes made to the Cat Fund, are as percent rate-on-line. The TEACO coverage follows: applies to two hurricanes for each contract year. The TEACO premiums estab- o Repeals the 25 percent rapid cash lished by the act are priced at near- buildup factor required to be charged for market levels. Therefore, these cover- Cat Fund premiums. This was a re- age options primarily benefit insurers quirement added in 2006 to increase which are unable to obtain reinsurance Cat Fund premiums by 25 percent in or- at these low levels, but are not ex- der to build up cash reserves in the Cat pected to generate premium savings for Fund. However, this act repeals that re- most insurers. The relatively high pre- quirement, in order to lower Cat Fund miums also serve to significantly reduce premiums to insurers, resulting in an esti- the risk to the state for the TEACO cover- mated 3 percent average reduction to age. residential policyholder premiums. o Allows eligible residential property in- o Deletes the additional Cat Fund cover- surers to purchase up to $10 million in age provided to Citizens Property In- additional Cat Fund coverage at a level surance Corporation (“Citizens”) above significantly below the normal Cat Fund their (market share) maximum limits, to retention and likely to be lower than the extent coverage is available after the lowest retention ($3 billion) under all other insurers have been reimbursed the TEACO options. The $10 million up to their maximum limits. This is re-

122 CARLTON FIELDS, P.A.

pealed in order to reduce Citizens’ crease due to the election of coverage op- Cat Fund premium by about 10 per- tions from the Cat Fund. cent, resulting in an estimated 1 percent premium savings for the average Citi- The sum of $250,000 in nonrecurring funds is zens’ policy. appropriated from the Insurance Regulatory Trust Fund in the Department of Financial o Authorizes the SBA to purchase capital Services (DFS) to the OIR for the 2006-2007 market instruments to cover Cat Fund ob- fiscal year for the purpose of implementing ligations, similar to its current authority to these requirements. purchase reinsurance. Rates for Coverage from Citizens o Provides that premium income from the The requirements, standards, and procedures optional Cat Fund coverage provisions for establishing rates for Citizens’ policies are of the act are not included in the cash substantially revised, in an attempt to provide balance of the Cat Fund for determining immediate rate relief to Citizens’ policyholders the annual growth in the maximum Cat while establishing a long term standard based Fund limits. on actuarial soundness, rather than non- competitiveness or collecting sufficient premium Mandatory Rate Filings to Reflect to have reserves and reinsurance to cover a Savings Due to Expanded Cat Fund specified probable maximum loss. Specifi- Coverage cally, these changes are as follows: All residential property insurers are required by the act to make a rate filing with the Office o Deletes the requirement added in 2006 of Insurance Regulation (OIR) reflecting the that Citizens charge rates sufficient to pur- savings or reduction in loss exposure to the chase reinsurance to cover specified levels insurer due to the expanded Cat Fund cover- of probable maximum loss for each of its age. The OIR must calculate a presumed factor three accounts. This has the effect of avoid- to be used in the required rate filings to re- ing the 56.5 percent average premium in- flect the impact to rates of the changes, crease for Citizens’ High-Risk-Account using generally accepted actuarial tech- (HRA) that was under consideration by niques and standards. The OIR may contract Citizens. with an appropriate vendor to advise the office in determining the presumed factor or o Deletes the requirement that Citizens’ factors. rates be non-competitive and no lower than the top 20 insurers. In certain areas, Each insurer’s rate filing must take into ac- this requirement resulted in rates that are count the presumed factor for any policy writ- higher than the actuarially sound rate. ten or renewed on or after June 1, 2007, to reflect all expanded Cat Fund coverage op- o Requires that Citizens’ rates be actuarially tions available to the insurer, whether or not sound and subject to s. 627.062, F.S., the insurer purchases the coverage. Additional which prohibits rates that are excessive, costs to the insurer for private reinsurance or inadequate, or unfairly discriminatory, loss exposure that duplicates the expanded and specifies factors for OIR to consider Cat Fund options may not be factored in the in making this determination. The act re- rate. An insurer may not obtain a rate in- tains the current requirement that after the public hurricane loss model has been

123 2007 LEGISLATIVE REPORT

found to be accurate and reliable by the loss for a specified period, such as a 50 Florida Commission on Hurricane Loss or 100 year storm. (Even though Citizens Projection Methodology, that model would be subject to a rate standard sub- shall serve as the minimum benchmark for stantially the same as for voluntary market determining Citizens’ windstorm rates. property insurers, Citizens is not subject to the same solvency requirements such as o Rescinds the approved, actuarially sound minimum surplus, restrictions on premium rate increase that took effect January 1, writings, or having surplus and reinsur- 2007, and requires Citizens to provide ance to cover a 100-year probable refunds to persons who have paid this maximum loss.) The “actuarial” rate fil- rate. This has the effect of avoiding an ing approved by OIR that is being re- average 23.1 percent rate increase in the scinded by this act did not add such fac- HRA for homeowners’ policies. tors to the average annual loss (for which the public hurricane model was used), o Freezes rates at the December 31, 2006 but did add a 10 percent factor to reflect level for the remainder of 2007, except the higher risk of the property insured by for any rate decreases implemented under Citizens compared to the voluntary mar- the January 1, 2007 rate filing and any ket (beyond that reflected in hurricane further rate decreases that may be ap- loss models), due to more restrictive un- proved during 2007 (such as a rate de- derwriting by the voluntary market. crease for a policy change like the sinkhole exclusion pending before OIR). o • Requires the OIR to annually establish Citizens’ rates within 45 days after Citi- o Requires a new rate filing, under the zens files recommended rates, and pro- standard to be actuarially sound, effec- hibits Citizens from legally challenging tive January 1, 2008. The term “actuari- the OIR determination. ally sound” does not have a precise definition, particularly when applied to a re- Assessments for Citizens’ Deficits sidual market insurer that depends on as- The act substantially expands the types of in- sessments for financing, which will depend surance policies and premiums that are sub- upon the interpretation given by OIR. ject to assessments to fund deficits of Citizens, However, the term generally means a currently limited to property insurance premi- rate that will cover expected losses. ums. As expanded, the assessment base When applied to windstorm losses, this would be substantially the same as that of the means a rate sufficient to cover average Cat Fund, which includes all lines of property annual expected losses, based on hurri- and casualty insurance, including auto insur- cane loss projection models. It is less ance, but not workers’ compensation or acci- clear whether any additional amount be- dent and health. The act also exempts medi- yond average annual loss should be col- cal malpractice premiums (but the same ex- lected to cover an imputed “cost of capi- emption from Cat Fund assessments is tal” that would reduce the reliance on as- scheduled for repeal in 2007). This ex- sessments. It is also not clear if the term pands the assessment base four-fold, from encompasses charging an amount in ex- about $8.2 billion to $35 billion, based on cess of annual average loss to build to- 2006 premiums. This reduces the percent- wards financing a probable maximum age assessment that may be imposed in the

124 CARLTON FIELDS, P.A. future by about one-fourth, by spreading it to market insurer. This will allow a policyholder additional types of insurance, notably auto to choose to stay in Citizens and to reject policies. It will also support a much larger any “take-out” offers from the voluntary mar- bond issue, if necessary, and is expected to ket. But, the voluntary market may continue improve the bond rating and lower the cost of to “keep out” policies from Citizens, pro- borrowing. vided the premium is no more than 25 percent greater than Citizens’ premium. To- The act delays, until 2008, the requirement gether with the rating law changes described added in 2006 (SB 1980) that Citizens im- above, Citizens will be placed in a more pose up to a 10 percent of premium assess- competitive role with the private market, mak- ment on its nonhomestead policyholders if a ing it likely to increase its policy growth at an deficit occurs in any account, and if that as- even greater pace, at least for the near fu- sessment is insufficient, that Citizens impose ture. an additional 10 percent renewal surcharge on all Citizens’ policyholders, including non- However, the act makes an additional homestead policyholders. change that restricts eligibility for coverage, by providing that as of January 1, 2009, to Expanded Eligibility for Residential qualify for Citizens, properties within 2,500 Coverage from Citizens feet landward of the Coastal Construction The act expands eligibility for residential Control Line must be built to “Code-Plus” coverage in Citizens in two primary ways. building standards developed by the Florida First, it deletes the provision added in 2006 Building Commission. (SB 1980) that nonhomestead property, as defined, is ineligible for coverage from The act also: Citizens, effective March 1, 2007, unless the property owner submits certification from o Requires the Florida Market Assistance an agent that coverage has been rejected by Plan to develop an electronic database for at least three surplus lines insurers and one the purpose of confirming eligibility for authorized insurer. coverage in Citizens.

Second, the act places Citizens in more di- o Requires Citizens to exempt applications rect competition with the voluntary market by from the 10-day waiting period require- substantially revising the current law that ment before coverage is effective, if the makes a property ineligible for coverage application is in conjunction with a real from Citizens if an offer of coverage is made estate closing. by an authorized insurer at its approved rates. As revised, if a new applicant to Citizens is Expanded Eligibility for Commercial offered coverage from an insurer at its ap- Coverage in Citizens proved rate, the property is not eligible for a The act authorizes Citizens to provide com- Citizens’ policy, unless the insurer’s premium mercial nonresidential (i.e., business) cover- is more than 25 percent greater than the age, by including such coverage within the premium for comparable coverage from Commercial Lines Account (CLA), currently Citizens. However, a policyholder of Citi- limited to commercial residential coverage. zens remains eligible for coverage regard- This authorizes multiperil coverage for com- less of any offer of coverage from a private mercial property in all areas of the state, except that non-wind coverage would be pro-

125 2007 LEGISLATIVE REPORT

vided under the CLA for commercial property coverage and wind-only coverage, or both, obtaining wind-only coverage in the HRA. The for risks located in areas eligible for cover- act is silent on the limits of coverage that age in the HRA. would be offered. The act specifies that the plan of operation may establish limits of Other Changes to Citizens coverage (for all policies and accounts), which The act makes the following additional would be determined by the Citizens board changes to Citizens: and subject to approval by the Financial Ser- Clarifies that the plan of operation may vices Commission. The act also provides that o establish maximum limits of coverage. the plan of operation may require commercial property to meet specified hurricane mitiga- o Specifies that policies taken out, as- tion construction features as a condition of sumed, or removed from Citizens are eligibility for coverage. considered to be the sole obligation and direct insurance of the take-out Citizens must adopt a plan, subject to ap- company (so that Citizens does not re- proval by OIR, for the transition of commer- tain liability for such policies). cial coverage from the Property and Casualty Joint Underwriting Association (PCJUA) to o Requires Citizens to be subject to assess- Citizens. The PCJUA is permitted to continue ments levied by the Florida Insurance to provide commercial coverage pending the Guaranty Association. transition. o Allows the SBA to invest and manage the Multiperil Coverage in High-Risk assets of Citizens. Account of Citizens Currently, Citizens issues wind-only coverage o Clarifies that the appointing officers may in coastal areas eligible for coverage in the recall members of the Citizens Board of HRA. These are the only areas where insurers Directors at will. in the voluntary market are allowed to write non-wind policies (except as allowed by this Creates the Task Force on Citizens Property act, if elected by a policyholder). As required Insurance Claims Handling and Resolution. by the act, effective March 1, 2007, Citi- The task force has seven members, and is to zens must submit for approval by the Fi- conduct research and hearings and make nancial Services Commission and the Legis- recommendations as to issues regarding lative Budget Commission a business plan Citizens, including improving customer ser- for issuing multiperil policies in its HRA, in- vice and claims handling, and make recom- cluding the impact on Citizen’s financial re- mendations as it deems appropriate for legis- sources, its tax-exempt status, its customer lative action during the 2006-2008 legis- service and claims procedures, its agents, its lative biennium. The task force expires policyholders, and its rates and premiums. after the 2006-2008 legislative biennium. The expressed goal is to reduce average premiums by 10 percent or more for a Coverage Exclusions; Deductibles Citizens’ wind-only policyholder who obtains The act includes three provisions that would a multiperil policy from Citizens. If the busi- allow policyholders to significantly reduce ness plan is approved, but no earlier than their windstorm coverage and to assume the March 31, 2007, Citizens may offer multiperil

126 CARLTON FIELDS, P.A. risk of loss, in exchange for a lower pre- the claim, unless the failure to pay the mium, as follows: claim is caused by factors beyond the control of the insurer that reasonably prevent o Requires insurers to make available to payment. policyholders the option to exclude windstorm coverage, if the policyholder per- o Prohibits property insurers from denying sonally writes a statement that he/she does coverage based solely on the age of the not want such coverage and provides structure and requires consideration of documentation of approval by any mort- wind resistance of the structure. gage or lien holder. o Requires insurers to allow personal lines o Eliminates maximum allowable deducti- residential and commercial policyholders bles, but requires a written statement by to pay premiums on a quarterly or semi- the policyholder and approval by a annual installment plan. mortgage or lien holder if the deductible is in excess of 10 percent for a o Requires an insurer to provide the policy- home valued at less than $500,000. In- holder the option of selecting an appro- surers are still required to offer annual priate reduction in the policy’s hurricane hurricane deductibles of 2 percent, 5 per- deductible or selecting the appropriate cent, and 10 percent of policy limits, with discount credit or other rate differential. certain exceptions. The act allows, but does not require, the offer of a higher Insurance Rating Law; Premium No- tice deductible. The act makes various changes to the property o Requires insurers to make available to and casualty insurance rating law that gener- policyholders the option to exclude cover- ally strengthen the authority of the OIR to age for contents, if the policyholder per- approve or disapprove rates, as follows: sonally writes a statement that he/she does o Prohibits, through January 1, 2009, the not want such coverage. allowance for property and casualty in- Nonrenewal Restrictions; surers to implement a rate change prior to Timely Payment of Claims; filing for approval with OIR (the current Other Requirements “use and file” option), unless the insurer The act imposes the following requirements files for a rate that is less than the insurer’s on property insurers: most recent rate approved by the OIR. All filings that do not seek a lower rate o Requires 100 days written notice of non- must be made under the “file and use” renewal of a residential property policy, procedures that require filing at least rather than 90 days. However, notice is 90 days prior to the proposed effective required by June 1, or at least 100 days date. notice, whichever is earlier, for a nonrenewal effective between June 1 and No- o Prohibits the allowance for property vember 30 (hurricane season). and casualty insurers to submit a rate filing disapproved by the OIR to an o Requires property insurers to pay or deny arbitration panel for final resolution a claim within 90 days of the receipt of for all filings made after the act’s effec-

127 2007 LEGISLATIVE REPORT

tive date until January 1, 2009. Rate Corporation, and the Florida In- appeals would go to the Division of surance Guaranty Association; Administrative Hearings. and the full name of the assessing authority. o Deletes the “rate-flex” provision that allows residential property insurers to in- Amount of premium change due to a crease or decrease rates by up to 5 per- change in rate or coverage. cent on a statewide average, or 10 percent for any territory, without being sub- Combinations of discounts, cred- ject to a determination by the OIR that the its, rate differentials, or reduc- rate is excessive or unfairly discrimina- tions in deductibles, for windstorm tory, in areas where OIR determines a mitigation. reasonable degree of competition exists. Insurer Affiliates and Subsidiaries o Requires the chief executive officer or The act increases the minimum surplus re- chief financial officer and the chief actu- quirement from $5 million to $50 million ary of a property insurer to sign a for a domestic residential property insurer sworn certification, subject to perjury that is a wholly owned subsidiary of an in- and administrative penalties, that the surer authorized to do business in another information in the rate filing does not state. contain any untrue statements of a ma- Auto Insurers or Affiliates Must Write terial fact or omit material facts and re- Homeowners Insurance flects premium savings that are rea- Effective January 1, 2008, the act requires sonably expected to result from legis- insurers writing private passenger automobile lative enactments and are in accor- insurance in Florida and that write homeown- dance with accepted actuarial tech- ers’ policies in other states, to write homeown- niques. ers’ coverage in Florida, unless an affiliate writes homeowners insurance in Florida. o Prohibits excess profits by property insurers and requires refunds to consum- Hurricane Mitigation ers of any excess profits collected by an The act requires the Financial Services Com- insurer over a ten-year period, if certain mission to take the following actions related to thresholds are met. mitigation measures to strengthen homes against hurricane damage: o Allows a property and casualty insurer to provide a discount on a policy based o Adopt by rule a uniform home grading on the fact that the insured purchased scale to grade a home’s ability to with- another policy or type of insurance from stand the wind load from a hurricane. the insurer. o Develop by rule a uniform mitigation o Requires insurers to specify on the pre- verification inspection form that must be mium renewal notice the: used by all insurers to factor discounts for wind insurance. Amount of any assessment by the Florida Hurricane Catastrophe Fund, Citizens Property Insurance

128 CARLTON FIELDS, P.A.

The act makes the following changes to inspec- The committee will have eight members, with tions and grants provided under the Florida the Governor, President of the Senate, Speaker Comprehensive Hurricane Damage Mitigation of the House, and Chief Financial Officer Program (for which $250 million was appro- each selecting two members. The committee priated in 2006 to the DFS): expires May 15, 2007. o Exempts low-income homeowners, as de- Florida Building Code fined, from the requirement to have a The act requires that the Florida Building dwelling with an “insured value” of Code be revised as follows, in order to re- $500,000 or less (i.e., the home does peal the so-called “Panhandle exemption” not have to be insured). and other changes to strengthen the windstorm resistance requirements of the code: o Allows grants on a “rebuild,” defined as a site-built, single-family dwelling that is un- o Requires the Florida Building Com- der construction to replace a homestead mission to amend the Florida Build- significantly damaged or destroyed by a ing Code by July 1, 2007, to adopt the hurricane. wind-borne-debris protection requirements of the International Building Code o Allows up to 20 percent of a grant to be (2006) and the International Residential used by low-income homeowners for re- Code (2006) within the windborne- pairs to existing structures leading to debris region (120 mph+) as defined mitigation improvements. by those codes. This does not apply to the High Velocity Hurricane Zone. This o Authorizes the DFS to contract with a also has the effect of deleting the inter- not-for-profit corporation to conduct all nal pressurization option for buildings in or parts of the Florida Comprehensive the wind-borne-debris region. Hurricane Damage Mitigation Program. o Prohibits amendments or modifications o Requires wind inspectors to have a level 2 that diminish provisions related to background check, which includes finger- wind resistance or water intrusion. How- printing. ever, the commission may amend such provisions to enhance those requirements. o Requires the DFS to develop and maintain as a public record, a statewide list o Requires local jurisdictions to immediately of authorized wind certification and hur- enforce these wind-borne debris protec- ricane mitigation inspectors. tion requirements upon the effective date of the act (i.e. for building permits issued The act requires appointment of the Wind- on or after that date) pending adoption storm Mitigation Study Committee, to re- by the Florida Building Commission. port by March 6, 2007. The committee must analyze solutions for mitigating the o Requires the Florida Building Commis- effects of windstorms on structures and make sion to develop voluntary “Code-Plus” recommendations for mitigating windstorm guidelines for increasing the hurricane damage, including proposals that provide resistance of buildings that may be for the full actuarial value to be reflected in modeled on the Miami-Dade building premium credits for windstorm mitigation. code.

129 2007 LEGISLATIVE REPORT

Self-Insurance Funds; o Results in structural damage to the build- Bonding Authority ing and its foundation; and The act authorizes various types of self- insurance funds to be formed as follows: o Results in the insured structure being con- demned and ordered to be vacated by the o Allows two or more hospitals licensed appropriate governmental agency. and located in Florida to form an alliance for pooling liabilities relative to Contents coverage shall apply if there is a property exposure, under certain condi- loss resulting from a catastrophic ground tions, and allows an alliance of hospitals cover collapse. Structural damage consisting in special districts, county hospitals, or merely from the settling or cracking of a foun- municipal hospitals to borrow and bond dation, structure, or building does not consti- to finance property coverage and claims. tute a loss resulting from a catastrophic ground cover collapse. o Allows two or more local governments to enter into interlocal agreements to insure Insurers must continue to make sinkhole cover- or self-insure for property insurance and al- age as currently defined in statute available for lows governmental entities to bond to fi- an appropriate additional premium. Insurers nance property coverage and claims. offering policies that exclude coverage for sinkhole losses must provide written notice to o Allows one or more community associa- the policyholder in 14-point type. tions operating at least 50 residential parcels or units created and operating as Other Changes condominiums, cooperatives, homeown- The act makes the following additional ers associations, vacation and timeshare changes: plans, or mobile home park lot tenant associations to apply to OIR to form a o Authorizes the OIR to waive or lower the commercial self-insurance fund for prop- deposit requirement for reinsurers li- erty and casualty insurance, under the censed in other countries, based on crite- requirements that otherwise currently ap- ria related to the financial strength of the ply to such funds. insurer and the quality of the regulatory jurisdiction. Modifies insurance provi- o Allows two or more not-for-profit corpora- sions in the Condominium Act to limit tions to create a self-insurance fund for insurance requirements to “residential” property or casualty insurance, under condominiums, as defined, and to specify certain conditions. what constitutes “adequate insurance.”

Catastrophic Ground Cover Collapse o Requires the Insurance Consumer Advo- Coverage; Sinkholes cate to provide an annual report card on The act requires property insurers to provide insurance companies, using a letter grade coverage for catastrophic ground cover col- scale established by the Financial Ser- lapse, defined as geological activity that: vices Commission. o Results in the abrupt collapse of the o Authorizes OIR to require property insur- ground cover that is clearly visible to the ers to report additional data on hurricane naked eye; claims.

130 CARLTON FIELDS, P.A. o For fiscal year 2006-2007, provides an z HB 111 appropriation of $100,066,518 from Nonresident Title Insurance Agents the Florida Small Cities Community De- The bill provides for the following changes to velopment Block Grant program fund to the title insurance law: the Department of Community Affairs. The funding must be used to harden single- o Requires nonresident title insurance family and multi-family affordable hous- agents to qualify for licensure by passing ing, to mitigate against hurricane damage an examination and completing continu- and increasing costs of property insuring education requirements in the same ance. manner as Florida resident title insurance agents; o Clarifies the Legislature’s intent of a 2006 law that the Florida Insurance o Allows for the rebating of an attorney’s Guaranty Association has the authority fee charged for professional services, the to use an emergency assessment of up title agent’s portion of the insurance pre- to 2 percent of premium either to directly mium, or any other agent charge or fee, pay the covered claims of insolvent insur- to the person responsible for paying the ers or to utilize such emergency assess- premium, charge, or fee; ment proceeds to retire the indebtedness of bonds. o Clarifies that no portion of the attorney’s fee, the title agent’s portion of premium, o States the Legislature intends to create any agent charge or fee, or any other during the 2007 Legislative Session a monetary consideration or inducement, grant program to facilitate the purchase may be paid directly or indirectly for the of property insurance by low-income per- referral of title insurance business; sons as defined in s. 420.602(8), F.S., to protect their homestead property. o Clarifies definitions within the title insurance law and provides that “primary title o Revises the Insurance Capital Build-Up services” do not include closing services Incentive Program to allow an insurer or title searches, for which a separate writing only manufactured housing charge may be made; residential property insurance to qualify for a surplus note of up to $7 mil- o Repeals the authority for the Financial lion, if the insurer’s surplus, new capi- Services Commission to establish limita- tal, and the surplus note total at least tions on related title services charges by $14 million. Such an insurer is given rule; priority to receive a surplus note under o Provides that a title insurer may not issue the program and must meet the premium a title policy until the insurer has made a to surplus ratio provisions of s. determination of insurability based upon 624.4095, F.S. the evaluation of a reasonable title These provisions were approved by the Gov- search; ernor (Chapter 2007-1, L.O.F.) and took effect o Repeals the provision that the title insurer January 25, 2007, except as otherwise ex- or agency must maintain a record of the pressly provided in this act.

131 2007 LEGISLATIVE REPORT

related title service charges made for the a bond or furnishing a certificate of deposit issuance of a policy; of not less than $350,000. The bill provides such higher limits must be carried for o Clarifies the definition of an “estoppel a period of three years. If the person has letter” relating to mortgage certificates of not been found guilty of a DUI or a felony release; traffic offense during the three year period, then the person is allowed to return to the o Clarifies the provisions to clear liens that standard coverage limits. have been paid off from the public records; and, The bill amends. s. 3 16.646, F.S., pertaining to security requirements, to provide o Removes the requirement that the Finan- persons required to maintain the increased BI cial Services Commission adopt rules to and PD liability coverages under s. 324.023, establish a premium charged by a title F.S. (Section agent for preparing and recording of an affidavit of release of a mortgage. 1 of the bill) must maintain in their possession at all times while driving proper proof of the If approved by the Governor, these provi- required insurance coverages. Such proof sions take effect October 1, 2007. may be an insurance card, policy, binder, certificate of insurance or such other proof z HB 359 prescribed by the Department of Highway Motor Vehicle Financial Safety and Motor Vehicles (DHSMV). Per- Responsibility sons who violate this provision commit a The bill creates s. 324.023, F.S., under the nonmoving traffic infraction under ch. 318, Financial Responsibility (FR) law which pro- F.S. Failure to furnish proof of liability insur- vides for an additional financial responsibility ance results in suspension of the person’s requirement based on a vehicle owner or op- registration and driver’s license and re- erator who, regardless of adjudication of instatement of same is provided for under guilt, has been found guilty of or entered a s. 627.733, F.S. plea of guilty or nolo contentere to the charge of driving under the influence (DUI). Specifi- The bill also amends s. 320.02, F.S., per- cally, the bill requires after October 1, 2007, taining to motor vehicle licenses. The bill re- every owner or operator of a motor vehicle quires county tax collector’s to verify the in- that is required to be registered or located in creased BI and PD insurance coverages Florida, and who, regardless of adjudication mandated under s. 324.023, F.S., have been of guilt, has been found guilty of or entered purchased by the motorist at the time he or she a plea of guilty or nolo contentere to the applies for a vehicle registration or registra- charge of DUI, under s. 3 16.193, F.S., tion renewal. If such proof is not provided, the must have and maintain $ 100,00 in Bodily vehicle registration or renewal will not be Injury (BI) liability coverage for injury to, or issued. death of, one person in any one crash; $300,000 in BI coverage for injury to, or This bill amends s. 627.73 3, F.S., relating to death of, two or more persons in any one required motor vehicle security. Under current crash; and, $50,000 in Property Damage law, any operator or owner whose driver’s (PD) liability coverage in any one crash. The license or registration has been suspended bill provides motorists the option of posting

132 CARLTON FIELDS, P.A. under s. 3 16.646, F.S., may apply for rein- bill states this provision does not prohibit an statement upon compliance with specified fi- insurer from refusing to renew, imposing a nancial insurance requirements and payment surcharge on, or otherwise increasing premi- to DHSMV of a nonrefundable fee of $150 ums for a motor vehicle liability policy based for a first reinstatement; $250 for a second on factors other than the volunteer status of reinstatement and $500 for each subse- the person. quent reinstatement during the three years following the first reinstatement. The effect Under current law, an insurer may not deny of this provision is that drivers who are an application for automobile liability insur- required to maintain the increased liability ance “solely” on the ground that renewal of insurance coverages under the bill, and who similar coverage has been denied by another seek reinstatement of their license or registra- insurer or on the ground of an applicant’s tion, will have to pay the fees outlined failure to disclose that such denial has oc- herein. curred.

The bill also adds ss. 324.021(8) and If approved by the Governor, these provi- 324.023, F.S., to the requirements of s. sions take effect upon becoming law. 627.733, F.S., to clarify persons present proof to the DHSMV of securing the increased z HB 411 liability coverage required under the bill. Cur- Limited Insurance Licenses rent law requires persons seeking reinstate- The bill provides changes to two limited ment of their license or registration to also insurance licenses issued by the Depart- secure noncancelable insurance coverage ment of Financial Services (department). It described under s. 627.7275, F.S., 2and changes the license for personal accident in- present to the DHSMV proof the coverage is surance to “travel insurance,” and changes in force and such proof is noncancelable for the license for baggage and motor vehicle 2 years. excess liability insurance to “motor vehicle rental insurance.” In addition, the bill amends s. 627.7261, F.S., pertaining to refusal to issue automobile liabil- The “travel insurance” license is expanded to ity insurance. The bill prohibits insurers from cover accidental death and dismemberment denying an application for motor vehicle li- of a traveler; trip cancellation, interruption, or ability insurance, imposing a surcharge or delay; loss of or damage to personal effects otherwise increasing the premium for a pol- or travel documents; baggage delay; emer- icy “solely” on the basis the applicant, a gency medical travel or evacuation of a trav- named insured, a member of the insured’s eler; or medical, surgical, and hospital ex- household, or a person who operates the penses related to illness or emergency of a insured’s vehicle, is a “volunteer driver.” traveler. The bill authorizes timeshare devel- The bill defines the term “volunteer driver” opers, sellers of travel, and their subsidiar- as a person who provides services, including ies or affiliates to obtain a limited agent’s transporting individuals or goods, without license to sell travel insurance. Such insurance compensation in excess of expenses to a pri- policies or certificates may be issued for vate nonprofit agency as defined in s. 273 terms longer than 60 days, but each policy .01(3), F.S., or a charitable organization or certificate, other than a policy or certifi- defined in s. 737.501(2), F.S. 3 Finally, the cate providing coverage for air ambulatory

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services only, must be limited to coverage for ing. The servicemember’s dependent travel or use of accommodations of no spouse must reside at the servicemember’ s longer than 60 days. Employee training is place of posting in order to also qualify for required and fingerprinting is mandated for the exemption. The exemption applies only as specified officers of the licensed entity. long as the servicemember is on active duty outside the state and the owner complies with The “motor vehicle rental insurance” license the security requirements of the state or any is expanded to include accidental personal possession or territory of the United States injury or death of the lessee and passen- where the member is posted. gers in a leased or rented motor vehicle. The bill authorizes licensure of only the If approved by the Governor, these provi- “business entity” for a motor vehicle rental sions take effect July 1, 2007. insurance license, rather than licensing each entity’s branch office, as under current law. z SB 562 The method used for calculating licensing Ownership or Transfer of Securities fees is revised so the bill’s effect is revenue This bill modifies the procedures for acquir- neutral. License applicants must furnish to the ing a controlling interest in a specialty in- department specified information about each surer, domestic stock insurer or controlling business entity’s branch office that is to be company. The person acquiring stock must covered by the license. The bill expands the now send to the insurer and controlling com- maximum time period for which insurance pany a letter of notification that contains in- may be issued under a limited license leases formation necessary to understand the trans- or rental agreements from 30 to 60 days. action and identify all purchaser and owners involved. The notice must be filed no later The bill also clarifies that limited insurance poli- than 5 days after a tender offer or exchange cies or certificates may only be sold by an au- offer is proposed or no later than 5 days after thorized insurer or an eligible surplus lines the acquisition of the securities if not tender insurer. offer or exchange offer is involved. Previ- ously, a different notice requiring more ex- If approved by the Governor, these provisions pansive information had been required to be take effect January 1, 2008. filed with the insurer and the Office of Insur- ance Regulation. The more expansive notice z HB 517 now need only be filed with the office within Financial Responsibility for 30 days after a definitive acquisition agree- Motor Vehicles ment is entered; a form of tender offer or ex- The bill amends s. 324.02 1, F.S., to provide change offer is proposed; or the acquisition for an exemption, for United States Armed of the securities if no definitive acquisition Forces members and their dependent agreement, tender offer, or exchange offer is spouses, from providing proof of financial involved. A person may request and the Of- responsibility relating to ownership or opera- fice of Insurance Regulation may waive the tion of a motor vehicle. To qualify for the ex- expanded notice to the office if there is no emption, the servicemember must be serving change in the ultimate controlling share- on active duty outside the state or outside holder or ownership percentages, and no the United States and the vehicle must be unaffiliated parties acquire a direct or indi- primarily maintained at the place of post- rect interest in the insurer.

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The bill modernizes Florida law by expanding z SB 672 the scope of permissible custodians to allow Credit Balances/Unclaimed Property licensed securities brokers and dealers to The bill exempts credit balances held by a also serve as custodians of securities bought financial institution, credit union, or “partici- and sold by domestic insurance companies. pant” as defined in 12 USC s. 4001(19), that The bill itself does not contain a definition of are the result of check-clearing functions from “broker or dealer.” However, the term is de- the unclaimed property requirements of s. fined elsewhere in Chapter 678, F.S., as 717.117, F.S. The bill states that this provi- well as in the NAIC Model Regulation on sion is clarifying and remedial in nature. It Custodial Agreements and the Use of Clearing will apply retroactively to credit balances Corporations (#298). Model rule 298 re- held before July 1, 2007, as well as to credit quires a “broker/dealer” to be “registered balances held on or after that date. The with and subject to jurisdiction of the Securi- cited federal regulation defines “participant” ties and Exchange Commission, “maintain as a depository institution which (a) is lo- membership in the Securities Investor Pro- cated in the same geographic area as that tection Corporation” and have “a tangible served by a check clearinghouse association; net worth equal to or greater than two hun- and (b) exchanges checks through the check dred fifty million dollars ($250,000,000).” clearinghouse association either directly or The Office of Insurance Regulation has indi- through an intermediary. A “check clearing- cated that it intends to conform the Florida house association” is defined as “any ar- Administrative Code to the NAIC Model rangement by which participant depository Regulation, which would incorporate the institutions exchange deposited checks on a model rule’s safeguards on brokers/dealers. local basis, including an entire metropolitan area, without using the check processing facili- The definition of a “clearing corporation” ties of the Federal Reserve System.” upon adding broker/dealers to the list of permissible custodians. The bill simplifies the The provisions of the bill have been the sub- Florida Statutes to include the various book- ject matter of ongoing litigation in Bank of entry systems in which a Treasury security America, N.A. v. McCann, 444 Fed. Supp. may be maintained in the definition of a clos- 2d 1227 (USDC ND Fla. 2006). However, ing corporation. The amendments are in con- on February 15, 2007, the plaintiffs in the formity with the National Association of In- case filed for a voluntary dismissal with surance Commissioners Model Act on Cus- prejudice, effectively ending the legal action. todial Agreements and the Use of Clearing Corporations (#295). If approved by the Governor, these provisions take effect July 1, 2007 The bill changes the reference date of the In- surance Holding Company System Regulatory z SB 746 Act and Insurance Holding Company System Workers' Compensation/ Model Regulation of the National Association First Responders of Insurance Commissioners from January 1, The bill provides standards for determining 1997, to November 30, 2001. benefits for employment-related accidents and injuries of “first responders,” which gen- If approved by the Governor, these provisions erally increase the amount and likelihood of take effect upon becoming law. eligibility for workers’ compensation benefits.

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Many of these provisions have the effect of If approved by the Governor, these provi- reversing the application to first responders of sions take effect upon becoming law. benefit changes to the workers’ compensation law enacted in 2003. z SB 1100 Securities Transactions Regulation The bill defines “first responder” to include a The bill increases the annual licensing fee for law enforcement officer, a firefighter, an security agents from $30 to $50. The bill pro- emergency medical technician or paramedic, vides that this increased revenue will be dis- and a volunteer firefighter. The bill provides tributed to the Regulatory Trust Fund within the the following changes in workers’ compensa- Office of Financial Regulation to support tion for first responders: program operations. o Lowers the standard of proof and other If approved by the Governor, these provi- requirements for compensability for toxic sions take effect July 1, 2007. substance exposure, occupational disease, and mental or nervous injury. z SB 1206 Warranty Responsibility/MV Dealers o Authorizes payment for medical benefits in The bill amends s. 320.696, F.S., to clarify cases involving a mental or nervous injury “labor and parts’’ are included in warranty without an accompanying physical injury work, repairs, and service and to require requiring medical treatment. manufacturers to compensate dealers for work, “including labor and parts,” to rec- o Eliminates the six-month limitation on tify warranty defects. In addition, the bill temporary total disability benefits for specifies reasonable compensation to deal- compensable mental or nervous injuries af- ers by manufacturers for warranty work equal ter a first responder reaches maximum to the amount charged by the dealer for simi- medical improvement and the 1 per- lar work for non-warranty repairs or service, cent limitation for permanent impair- “including labor and parts.” ment benefits for psychiatric impair- ment. Also, if a dispute on warranty compensation is taken to an administrative proceeding before o Provides that any adverse result or compli- the Department of Highway Safety and Mo- cation caused by a smallpox vaccination is tor Vehicles, the manufacturer is required to deemed to be an injury arising out of demonstrate that the dealer’s retail charges work performed in the course and scope for labor “and parts” are improper. of employment. The bill also prohibits a manufacturer from o Extends the payment of permanent total recovering any of its costs for compensating a disability supplemental benefits beyond dealer for warranty work, including labor age 62 for first responders that were and parts, by imposing a charge or sur- employed by a public employer that did charge to the wholesale price paid by the not participate in the social security pro- dealer for any product, such as the vehicle gram whether or not the employer pro- and vehicle parts. vided an alternative retirement program. If approved by the Governor, these provisions take effect July 1, 2007.

136 CARLTON FIELDS, P.A. z HB 1381 licensing adjuster course provider. Per- Insurance, Agencies, Agents sons who take a course which is ap- & Adjusters proved by DFS are exempt from tak- The bill makes the following changes pertaining the adjuster license examination, ing to the regulation of insurance agencies, except for public adjusters who must take agents and adjusters under the authority of the exam as provided for under the bill; the Department of Financial Services (DFS or department): o Allows correspondence courses to be approved by the DFS for satisfying the pre- o Requires the DFS and the Financial Ser- licensing education requirements for ob- vices Commission (FSC) to adopt rules to taining a life or health insurance agent li- protect service members of the United cense; States Armed Forces from dishonest and predatory insurance sales prac- o Allows an insurance agent to be in tices by insurers and agents involving charge of more than one agency branch the offer of life insurance products. location so long as insurance activities do The rules must be based upon model not occur at the location when the agent is rules or model laws adopted by the not physically present (effective January National Association of Insurance 1, 2008); Commissioners. This is in response to a 2006 federal law that expresses the o Clarifies that the surety bond required for a intent of Congress that every state adopt public adjuster must be maintained con- rules or laws to protect members of the tinuously and for one year after termina- military from deceptive and improper in- tion of the license; surance sales practices; o Allows the DFS to extend the deadline for o Allows a branch location of a securities up to one year for an insurance adjuster dealer to register as an insurance to meet continuing education require- agency rather than obtain an insurance ments, for good cause; agency license; o Clarifies that the agent manual of the Flor- o Provides that the current exemptions ida Surplus Lines Service Office must be from taking the written examination approved by the DFS; for an adjuster’s license for persons o Requires that “risk bearing entities” (i.e., who complete certain educational reciprocal insurers; commercial, group, programs apply to persons who are local government, public utility or inde- applying for an independent adjuster pendent educational self insurance or company employee adjuster license. funds) clearly indicate on advertising Therefore, the exemptions would no materials that they are offering insur- longer apply to applicants for a public ance products. The bill provides that adjuster licensee; there is no liability to the insured on the o Adds an entity (“ALL-LINES Training”) part of, and no cause of action of any to the list of entities that may apply to nature shall be brought against any li- the DFS for approval to be a pre- censed or appointed insurance agent for the insolvency of any risk bearing entity

137 2007 LEGISLATIVE REPORT

when such entity has been authorized or investment specialists and information tech- approved by the Office of Insurance nology specialists. Regulation to do business in Florida. However, if the agent was a “control- The bill allows the OIR to unilaterally select the ling producer” (i.e., controlling the independent examining firm by removing the management and policies of an entity) requirement that the insurer and the OIR must of the risk bearing entity within 2 years agree to an independent examination, the preceding the insolvency, the agent is rates and terms of the examination, and the subject to a penalty under s. 626.7491, selection of such an independent examiner. F.S. (i.e., OIR can order the agent to The bill also provides additional criteria for cease placing business with the con- the selection of an independent examiner. trolled insurer or the OIR may bring a Rates charged by such firms must be consis- civil action for recovery of damages); tent with rates charged by other firms in simi- and lar professions, and the firm selected by the OIR to conduct an examination may not have o Provides an appropriation of $132,000 to a conflict of interest that would preclude an the DFS from the Insurance Regulatory independent examination. The bill also pro- Trust fund to make necessary computer vides that if the OIR contracts with an outside system changes as required under the examiner for an examination of an insurer, the bill. insurer must pay the OIR, rather than the contract examiner, for the cost of the exam. If approved by the Governor, these provisions Then, the office would reimburse the exam- take effect July 1, 2007, except as otherwise iner pursuant to a legislative appropriation. expressly provided in this act. The bill eliminates the $25,000 cap on the fee for the annual examination of a domestic z HB 1549 insurer that has held a certificate of authority Examination of Insurers for less than 3 years. Currently, an insurer is generally subject to a financial examination by the Office of Insur- If approved by the Governor, these provi- ance Regulation (OIR) of its affairs, transac- sions take effect July 1, 2007. tions, accounts, records, and assets, no less frequently than once every 3 years. This bill z SB 1624 changes the frequency of the required exami- Insurance/Workers’ Compensation/ nation to at least once every 5 years, with the Public Construction Projects exception of domestic insurers that have held The bill provides the following changes to the a certificate of authority for less than 3 years. current statutory provisions regulating the use These domestic insurers would continue to be of an owner-controlled-insurance program subject to an examination on an annual ba- (OCIP) by a public agency: sis. o Provides that a “specified contracted The bill expands the specialists that qualify to work site” for purposes of an OCIP ap- conduct independent examinations. The cur- plies to a single continuous system. rent list comprised of independent certified public accountants, actuaries, and reinsur- o Clarifies when a capital infrastructure ance specialists is expanded to also include improvement program at multiple work sites meets the $75 million threshold re-

138 CARLTON FIELDS, P.A.

quirement in order for the construction with a workers’ compensation carrier rated project to be eligible to use an OCIP. A not less than an “A” by a nationally recog- capital infrastructure improvement pro- nized rating agency as a condition of being gram must be for a single public service, a vendor or receiving payment. In Florida, system, or facility that cannot be com- workers’ compensation insurance is offered bined with another project unless certain by insurance companies and commercial self- conditions are met. The term “capital insurance funds whose claims are protected infrastructure improvement program” is by the Florida Workers’ Compensation In- also defined. surance Guaranty Association in the event of insolvency. There is no current law requir- o Specifies that, under an OCIP with a ing workers’ compensation insurers or self- large deductible workers’ compensation insurance funds to be rated by a rating ser- rating plan, the individual contractors vice as a condition of being authorized to and subcontractors are not required to write workers’ compensation insurance. individually satisfy eligibility requirements and may combine their payroll if the de- If approved by the Governor, these provi- ductible is $100,000 or more and the sions take effect July 1, 2007. standard premium is $500,000 or more. z SB 1894 o Requires an OCIP to provide completed Joint Underwriting Plan/ operations coverage, which insures Workers' Compensation against construction defections after the The bill amends laws governing the Florida completion of the project, for at least 10 Workers Compensation Joint Underwriting years rather than 5 years. Association, Inc., (JUA) to provide greater accountability and oversight, to assist the JUA in If approved by the Governor, these provi- achieving tax-exempt status, and to authorize sions take effect October 1, 2007. additional funding mechanisms. z SB 1748 JUA Board Oversight; Insurance Contracts/ Tax-Exempt Status Workers' Compensation The bill revises the JUA board appointment The bill prohibits a person, such as a contrac- process by requiring the Financial Services tor, from rejecting workers’ compensation Commission (FSC) to appoint eight of the coverage from a self-insurance fund that is nine members instead of three members. subject to ch. 631, part V, F.S., based upon The insurance industry will have five repre- the self-insurance fund not being rated by a sentatives, as currently provided by law; nationally recognized insurance rating however, the FSC will select and appoint agency. Such coverage is required pursuant each respective representative from a list of to a construction project. Chapter 631, part five nominees for each vacancy, which V, F.S., establishes the Florida Workers’ would be submitted by the industry. The Compensation Insurance Guaranty Associa- number of state governmental appointees tion to pay claims for insolvent insurers and (including the Consumer Advocate of the De- self-insurance funds. Presently, some builders, partment of Financial Services) would remain notably national companies, require contrac- at four members. tors or subcontractors to secure coverage

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Upon dissolution of the JUA, the bill requires such person or entity, that has a contractual that all assets of the JUA first be used to pay relationship with the plan or who is under all debts and obligations of the plan and that consideration for a contract. Employees or any remaining assets would revert to the state. board members that fail to comply with this This provision will also assist the JUA in its provision are subject to penalties, such as effort to obtain tax-exempt status. fines. The executive and legislative branches of government are subject to a To avoid significant future federal tax liabili- similar prohibition as that applied to lobby- ties, the bill requires that, on or before January ists. 1, 2008, the JUA must seek a letter ruling or determination from the IRS regarding the Deficit Funding JUA’s eligibility as a tax-exempt organization. The JUA is required to use any policyholder Since its inception in 1994, the JUA has in- surplus attributable to former subplan C prior curred an estimated $33 million in federal to assessing policyholders in the voluntary income tax expenses, including $16 million market for funding subplan D deficits on a in 2006. cash flow basis. The surplus in subplan C is approximately $39 million and the esti- Code of Ethics mated additional funding needed is less than and Financial Disclosure $5 million. The deadline for levying “below- Senior managers, officers, and board mem- the-line” assessments to fund deficits in sub- bers are subject to certain provisions of ch. plan D, and Tiers One and Two is ex- 112, part III, F.S., including, but not limited tended from July 1, 2007, to July 1, 2012. to, standards of conduct, public disclosure requirements, and reporting of financial inter- Regulatory Oversight ests to the Commission on Ethics on an annual The JUA is required to refund premiums to basis. The bill authorizes an employee, direc- their policyholders if the OIR subsequently tor, etc., of an insurance entity to be a board disapproves the rate. Also, the OIR is re- member unless the insurance entity provides quired to conduct periodic market conduct certain services to the JUA. The bill prohibits examinations of the JUA. such a board member from voting on a matter if the insurance entity would obtain a Procurement of Goods and Services special benefit that would not apply to simi- Competitive selection of goods and services larly situated entities. valued at over $25,000 is generally required. Exceptions for exempted services Current and prospective employees are re- (legal and auditing, etc.), sole sourcing quired to submit an annual statement to the and emergency purchases are authorized. JUA attesting that no conflict of interest ex- Any purchase that exceeds $100,000 re- ists. Any senior manager or officer of the quires approval by the board of governors. JUA employed as of January 1, 2008, who Guidelines and criteria are provided for retires or terminates employment, is prohibited determining whether staff attorneys or out- from representing another person before the side attorneys should be used and factors to JUA for a two-year period. Employees and be used in selecting outside firms. board members are prohibited from accepting gifts of any value from a person or en- If approved by the Governor, these provi- tity, or an employee or representative of sions take effect July 1, 2007.

140 CARLTON FIELDS, P.A. z SB 2498 in Citizens for personal lines residential Citizens Property Insurance structures that have a dwelling replace- Corporation ment cost of $1 million or more (except This bill makes changes to the Citizens Prop- for dwellings insured by Citizens on De- erty Insurance Corporation (“Citizens”) law, cember 31, 2008, which may reapply prohibits the formation of new Florida domestic and obtain coverage under certain con- residential property insurance subsidiaries and ditions). requires rate filings for all insurance subsidiaries to include parent company profit informa- o Clarifies that the expanded Citizens as- tion. sessment base (per HB 1-A in Special Ses- sion) applies only to deficits incurred af- Citizens Property Insurance ter January 25, 2007. Corporation (“Citizens”) [s. 627.351(6), F.S.] o Permits a policyholder whose coverage Revises the legislative findings for establishing with Citizens has been assumed by an- Citizens, in order to support its tax-exempt other insurer to continue to be eligible for status, finding that the absence of affordable Citizens coverage through the end of the property insurance threatens the public health, assumption period regardless of any of- safety, and welfare and that the state has a fer of coverage by the insurer. compelling public interest in assuring that property is insured at affordable rates. o Deletes the requirement that by July 1, 2007, an application for new coverage o Prohibits any rate increase in Citizens with Citizens is subject to a 10-day wait- until January 1, 2009. This extends for ing period before coverage is effective. an additional year, the current prohibition against a rate increase until January o Limits the post-employment restrictions on 1, 2008. The rates in effect on December employees of Citizens to senior managers 31, 2006 shall remain in effect for 2007 of Citizens. and 2008 except for any rate change that results in a lower rate. o Provides that Citizens may be liable for attorney’s fees in an action for breach of o Provides that if a new applicant to Citizens contract for benefits. is offered coverage from an insurer at its approved rate, the applicant is not eligi- o Requires a Citizens employee to notify the ble for a Citizens policy unless the in- Citizens’ Office of the Internal Auditor surer’s premium is more than 15 percent and the Division of Insurance Fraud of greater than the premium for comparable suspected fraud by a Citizens employee. Citizens’ coverage. (Current law has a 25 o Authorizes OIR to establish a pilot pro- percent limitation.). Also provides criteria gram in one or more counties, to allow for determining when “comparable cov- Citizens to exclude sinkhole coverage erage” has been offered and allows an (and offer sinkhole coverage as an op- insurance agent to make this initial de- tion) pursuant to the sinkhole coverage termination. changes enacted in HB 1-A, without be- o Extends until January 1, 2009 (rather than ing required to give the policyholder a July 1, 2008) the ineligibility of coverage notice of non-renewal.

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o Deletes the requirement that an insurer Insurance Regulatory Trust Fund that writes the ex-wind coverage must con- of the Department of Financial tract with Citizens to adjust the windstorm Services (DFS) to the Task Force, claims on behalf of Citizens. which may employ consultants. DFS must provide administrative o Allows for cross-collateralization of support. assets of the Personal Lines Account and the Commerical Lines Account for Prohibition on New Florida any bonds or other debt for new financ- Subsidiaries; Profits of Parent ing by Citizens, as current law allows for Company debt that Citizens inherited in the merger Prohibits a new certificate of authority with the old Residential Property and o for the transaction of residential prop- Casualty Joint Underwriting Association. erty insurance to any insurer domiciled in o Creates the “Citizens Property Insurance Florida which is a wholly owned subsidi- Corporation Mission Review Task Force” ary of an insurer authorized to do busi- to analyze and compile data for devel- ness in any other state. Effective Decem- opment of a report specifying the statu- ber 31, 2008. tory and operational changes needed to Requires the rate filings of an insurer return Citizens to its former role as a o domiciled in Florida that is a wholly state created, noncompetitive residual owned subsidiary of an insurer au- market. thorized to do business in any other The Task Force consists of 19 state to include information relating to members: the Governor appoints the profits of the parent company. Effec- 4 members, of which 2 must be tive December 31, 2008. consumer representatives, the Payment of Claims President of the Senate appoints [s. 627.70131, F.S.] 3 members, and the Speaker of the House of Representatives ap- o Revises the requirement for a property points 3 members. An additional 6 insurer to pay or deny a claim within 90 members are appointed as repre- days of receiving notice of a claim to: sentatives of private insurance companies, of which 3 are ap- Apply this requirement to residen- pointed by the Governor, Presi- tial property insurance claims and dent, and Speaker, respectively. to commercial property claims for The Chief Financial Officer appoints structural or contents coverage if 3 members representing insurance the structure is 10,000 sq. ft. or agents. less. However, this would not apply to a policy covering commercial The Task Force must submit its re- nonresidential structures or contents port to the Governor, President of in more than one state. the Senate, and Speaker of the House by January 31, 2008. Alternatively requires the insurer to pay a “portion of the claim” within Appropriates $600,000 from the

142 CARLTON FIELDS, P.A.

the 90-day period. property insurers (commercial and residential) offer this coverage. Require an insurer to pay interest pursuant to s. 55.03, F.S. (as required for o Excludes a tenant’s policy from the re- legal judgments) to a policyholder if quirement for an insurer to offer an exclu- the insurer fails to timely pay a claim sion of contents coverage. within 90 days of receipt, or 15 days after circumstances that have rea- o Specifies that the policy exclusions for sonably prevented payment no longer windstorm or contents coverage may only exist, whichever is later. be implemented as of the date of a policy’s renewal. Florida Hurricane Catastrophe Fund (FHCF) [s. 215.555, F.S.] o Specifies that a new deductible for residential property insurance may only be im- o Allows any insurer that qualifies as a plemented as of the date of the policy’s limited apportionment company ($25 renewal. million in surplus or less) to purchase up to $10 million of additional coverage from Rating Law the FHCF (at a premium of 50 percent of [ss. 62 7.062 and 627.0655, F.S.] the coverage amount, above a retention of 30 percent of the insurer’s surplus). o Specifies that the temporary prohibition against making a “use and file” rate filing o Exempts medical malpractice insurance applies to property insurance (but not from FHCF assessments through May 31, casualty insurance) rate filings and clari- 2010. fies that it applies to a rate filing submitted after January 25, 2007 (the effective o Clarifies the method of determining cov- date of HB 1-A). erage and premium for insurers purchas- ing optional (“TEACO”) coverage below o Prohibits an insurer from recouping in its the insurer’s retention for the mandatory rates the interest payments the insurer FHCF coverage. makes for failure to pay or deny a property insurance claim within 90 days as o Deletes the June 1, 2007 expiration date required by statute. of the provision that allows Citizens to mu- tually agree with the State Board of Ad- o Clarifies that a multi-line discount may ministration on how to structure FHCF only be offered by an insurer to a con- coverage for policies that Citizens as- sumer that has purchased another policy sumes from an insolvent insurer. from the same insurer or insurer group.

Policy Exclusions and Deductibles Insurance Capital Build-Up Incentive [ss. 627.701 and s. 627.712, F.S.] Program [s. 215.5595, F.S.] o Requires an insurer to make available a o Allows an insurer that exclusively policy that excludes coverage for wind- writes manufactured housing to obtain storm coverage (rather than hurricane or a surplus note of up to $7 million from windstorm coverage), and requires that all the Insurance Capital Build-Up Incentive Program. (Current law allows such an

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insurer to have a total amount of sur- holder that coverage may be available plus, new capital, and surplus note and less expensive from Citizens before equal to $14 million, rather than $50 export to the surplus lines insurance million.) market. The notice must also include information that Citizens assessments are o Provides that an insurer is considered higher and that Citizens coverage may to be “writing only manufactured hous- be less than the property’s existing cov- ing” if it is: 1) a Florida domiciled in- erage. surer that began writing policies after March 1, 2007, removes at least o Requires only one rejection from an 50,000 policies from Citizens without a authorized insurer, rather than three re- bonus, and at least 25 percent of its jections, in order for coverage for a $1 policies cover manufactured housing; million residential structure to be exported or 2) a Florida domiciled insurer that to the surplus lines market. writes at least 40 percent of its policies covering manufactured housing in Flor- o If a policyholder pays for a surplus lines ida. insurance policy with a bad check, or fails to maintain membership in an or- o Between insurers writing manufactured ganization necessary to obtain insur- housing policies, priority shall be given to ance coverage, the policy may be the insurer writing the highest percentage cancelled for nonpayment of pre- of manufactured housing policies. mium. If a bad check is the initial premium payment, the policy is retroac- Florida Insurance Guaranty tively void unless payment is tendered Association (FIGA) [ss. 631.52, within the earlier of 5 days after actual 631.57, and 631.695, F.S.] notice by certified mail is received by the applicant, or 15 days after notice is o Specifies that any kind of self-insurance sent to the applicant by certified or regis- fund, liability pool, or risk management tered mail. fund is not covered by FIGA. Florida Building Code; o Clarifies that FIGA‘s authority to levy Internal Pressure Option emergency assessments of 2 percent of premium is for payment of covered o Retains the internal design (pressure) op- claims (not just homeowners claims) tions in the Florida Building Code (as an of insurers rendered insolvent by the option to opening protections in the effects of a hurricane. wind-borne debris region) until June 1, 2007, for a building permit application Permits all municipalities and counties in o made prior to that date. This applies ret- the state to issue bonds to assist FIGA in roactively to January 25, 2007, the ef- expediting the handling and payment of fective date of HB 1-A that repealed this covered claims of insolvent insurers. option, and applies to any action taken on a building permit affected by that act. Surplus Lines Policies [ss. 626.914, 626.916, and 626.9201, F.S.] o Requires a retail agent to inform a policy-

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Other Provisions increase which is intended to not require identification of a rate increase o Applies the $50 million surplus require- that is due, for example, to the home be- ment to a domestic residential property ing one year older or such other rating insurer if it is a subsidiary of an insurer change that was in a rate schedule that domiciled (rather than “doing business”) was not affected by a rate filing ap- in another state. proved since the prior renewal. o Provides that the annual report card for o Creates the Florida Catastrophic Storm insurers prepared by the Consumer Advo- Risk Management Center at Florida State cate regarding consumer complaints and University, to promote and disseminate the time it takes to pay claims applies to research on issues related to hurricane personal residential property insurers, catastrophe loss and to assist in develop- rather than all property insurers, and re- ing education and research grant funding quires the report to include the number of opportunities. (The General Appropria- consumer complaints “as a market share tions Act appropriates $1 million for this ratio.” center.) o Provides that 100 days’ notice of non- If approved by the Governor, these provisions renewal is required, rather than June 1, take effect upon becoming law, except as oth- if earlier, for a nonrenewal effective dur- erwise provided. ing hurricane season, if the policy is being non-renewed for the sole purpose of z HB 7031 revising the coverage for sinkhole losses; Community Associations/Insurance or if the policy is non-renewed by Citi- This bill increases the options of condominium, zens for a policy assumed by an in- cooperative, and homeowners’ associations, surer that offers replacement or renewal with regard to insuring association property coverage. and participating in self insurance programs. Specifically, this bill amends laws relating to o Transfers and amends s. 627.7277(4), insurance and other issues for community F.S., to s. 627.4133(7), F.S., to place in associations to: the proper section the requirement of HB 1-A that each residential property insur- o Provide that the language relating to ance renewal premium specify the windstorm and self insurance (s. amounts recouped for assessments, the 718.111(11 )(a), F.S.) that was added dollar amount of a premium increase that to the Condominium Act in HB 1-A dur- is due to an approved rate increase, and ing the 2007 special session on insur- the total dollar amount of increase due to ance applies to all residential condo- coverage changes. The bill applies this miniums in the state, regardless of the to residential property policies and date of its declaration of condominium; specifies that the amount of the increase o Provide implementing provisions for con- for coverage changes need only specify dominium associations, cooperative as- the total dollar amount due to all cover- sociations, and homeowners’ associations age changes. It also is limited to identi- to participate in self-insurance funds au- fying the amount of an “approved” rate thorized by the 2007 special session;

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o Provide authorizing legislation for the ies to the engineer and/or architect’s re- homeowners’ associations and coopera- port. tive associations to participate in the “pooled” insurance option for obtaining The bill includes a self-insurance fund under the windstorm insurance coverage; definition of covered insurance policy for residential properties for the Florida Hurricane o Establish new budget disclosure require- Catastrophe Fund. ments for condominium and cooperative prospectuses relating to budget changes If approved by the Governor, these provi- due to increases in insurance premiums; sions take effect upon becoming law. o Establish “good faith” estimates to be the z HB 7057 basis for the budget; Hurricane Damage Mitigation During the 2006 Regular Session, the Legisla- o Preserve the developer assessment guar- ture created the Florida Comprehensive Hurri- antees in the prospectuses and provide cane Damage Mitigation Program and ap- that unforeseen increases are not mate- propriated $250 million to provide financial rial changes to the offering circular; and incentives to encourage residential property owners in Florida to retrofit their properties, o Require new budgets to be given to pur- making them less vulnerable to hurricane chasers at closing. damage and helping decrease the cost of residential property and casualty insurance. This bill also amends or creates provisions in The program provides free home inspections Part VI of the Condominium Act relating to and matching grants of up to $5,000 for condominium conversions to: home mitigation and is administered by the Department of Financial Services (DFS). The o Expand the disclosure requirements for bill makes changes to the program and the the improvements located on the prop- Florida Building Code, and contains other erty; issues related to hurricane damage mitiga- o Provide developers with additional re- tion. quirements for warranties and reserve My Safe Florida Home Program accounts; [s. 215.5586, F.S.] o Conform the law by adding the terms “con- o The name of the program is changed from verter” and “as provided in this section” to the Florida Comprehensive Hurricane modify reserve accounts in order to better Damage Mitigation Program to the My differentiate between converter reserve Safe Florida Home Program (MSFH). accounts and regular reserve accounts; o Legislative intent is provided that the MSFH o Require updated inspection reports when program provide at least 400,000 inspec- components are renovated or repaired; tions and at least 35,000 grants by June and 30, 2009. o Provide that the condominium owner and o The bill clarifies that free home inspections the association are third-party beneficiar- are available statewide, but limits the in-

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spections to site-built, single-family resi- submitted only a single application for dential property. that home. o The amount of matching grants (and non- o The DFS is authorized to contract with third matching grants for low-income home- parties for grants management, inspection owners) are maintained at a maximum of services, educational outreach, and audit- $5,000, but grants are limited as fol- ing services. Contracts valued at lows: $500,000 or more shall be subject to review and approval by the Legislative Grants may only be used for open- Budget Commission. ing protections (such as shutters); exterior doors, and to brace gable o DFS shall transfer $40 million from funds ends (and are no longer available for appropriated to the MSFH program, in- roof upgrades). The DFS may require cluding up to 5 percent for administrative that all openings be protected as a costs, to Volunteer Florida Foundation, condition of approving a grant, Inc. (VFF), for provision of inspections under certain conditions. and grants to low-income homeowners. VFF must report its activities and account The property must be homestead prop- for state funds on a quarterly and annual erty with an insured value of basis. $300,000 or less (rather than $500,000), located in the “wind- o In making matching fund grants avail- borne debris region,” and built prior able to local governments and nonprofit to March 1, 2002. The “wind-borne entities for projects that will reduce hurri- debris” region is the where the Flor- cane damage to single-family residential ida Building Code requires new property, the DFS must liberally construe homes to have opening protections such requirements in favor of availing (shutters, etc.) and is where sustained the state of the opportunity to leverage winds of 120 mph or greater are program funding with other sources of likely to occur. funding. o The DFS must establish objective, rea- o The DFS may use up to $10 million from sonable criteria for prioritizing grant ap- the funds appropriated for the MSFH to plications. develop a no interest loan program by December 31, 2007, to encourage the o The bill allows hurricane mitigation inspec- private sector to provide loans for mitiga- tor training to be on line or in person and tion measures. The DFS shall pay the in- allows a hurricane mitigation inspector to terest on the loans which may be for a also be the mitigation contractor if the in- term of up to 3 years and cover up to spector is otherwise qualified and certi- $5,000 in mitigation measures. fied. o The DFS is directed to make an annual o The bill requires that an application for an report by February 1 of each year on the inspection must contain a signed or elec- activities of the program that shall ac- tronically verified statement made under count for the use of state funds. penalty of perjury that the applicant has

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o The DFS must transfer $1 million from the an insured value of $750,000 or more and is funds appropriated to the MSFH program located in the wind-borne debris region. to the Low-income Emergency Home Re- pair Program. Administrative expenses Eligibility for Coverage in Citizens may not exceed 5 percent ($50,000) of Property Insurance Corporation the funds appropriated. [s. 627.351(6), F.S.] Effective January 1, 2009, a home (personal Florida Building Code: Roof lines residential structure) with an insured Replacements and Adding Opening value of $750,000 or more that is located in Protections [s. 553.844, F.S.] the wind-borne debris region is not eligible for The bill requires the Florida Building Com- coverage from Citizens Property Insurance mission to develop and adopt within the Flor- Corporation unless it has opening protections ida Building Code standards for mitigation as required for new construction. A home techniques for site-built, single-family- complies with this requirement if it has residential structures constructed prior to the opening protections on all openings and implementation of the Florida Building Code, complied with the Florida Building Code at including gable-end bracing, secondary wa- the time they were installed. ter barriers for roofs, roof-to-wall connections, roof-decking attachments, and opening Contractor Continuing Education protections. [s. 489.115, F.S.] The bill adds, for applicable licensure catego- The Florida Building Commission must adopt ries, wind mitigation methodologies to contrac- rules by October 1, 2007, to take immediate tor continuing education requirements. effect (to apply to building permits applied for on or after that date) to require that a roof re- Wind-loss Mitigation Study placement incorporate a secondary water The bill provides that it is the intent of the Leg- barrier and strengthening the roof decking islature that scientifically valid and actuarially attachments. For single-family residential sound windstorm mitigation rate factors, pre- structures located in the wind-borne debris mium discounts, and differentials be provided region that have an insured value of to residential and commercial property insur- $300,000 or more, a roof replacement ance policyholders. In order to ensure the va- must also incorporate cost-effective im- lidity of such factors, the Office of Insurance provements of roof-to-wall connections as de- Regulation, in consultation with the De- termined by the Florida Building Commission, partment of Community Affairs and the Flor- under the standard that such improvements ida Building Commission, is directed to con- add no more than 15 percent to the cost of duct one or more wind-loss mitigation studies the reroofing. These rules shall be incorpo- for both residential property (including mobile rated into the next edition of the Florida homes and condominiums) and commercial Building Code. non-residential property. The studies related to residential property shall be completed by Any construction activity that requires a build- January 1, 2008 and the studies related to ing permit after July 1 2008, and for which commercial nonresidential property shall be the estimated cost is $50,000 or more must completed by March 1, 2008. include opening protections (shutters, etc.) as required for new buildings if the building has

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The General Appropriations Act contains an o Eliminates the $50,000 limit on insur- appropriation of $1.5 million to the Office of ance that may be procured on the life Insurance Regulation to conduct these stud- of a debtor under a debtor group con- ies. tract, or pursuant to a credit life insurance policy. Instead, the limit is the If approved by the Governor, these provisions amount of the person’s indebtedness to take effect upon becoming law. the creditor. The bill also allows the term of credit disability insurance to z HB 7087 extend for the term of the indebted- Financial Services ness, rather than the current 10-year The bill: time limitation. o Authorizes the sale of optional guar- o Specifies that a deposit or account anteed asset protection (GAP) prod- made in the name of two persons who ucts by motor vehicle installment sellers, are husband and wife is considered a sales finance companies, retail lessors tenancy by the entirety unless otherwise and their assignees, and establishes re- specified in writing. quirements for the sale of such products. The seller of GAP coverage may o Provides that an agreement to operate not require its purchase as a condition or share an ATM may not “prohibit, for making a loan. In order to offer a limit, or restrict” the right of the owner GAP product, the seller of the GAP or operator to charge an access fee product must comply with specified statu- or surcharge not otherwise prohibited tory consumer protection requirements. under state or federal law to a customer conducting a transaction using o Defines “debt cancellation product,” an account from a financial institution specifies that such products may be sold that is located outside of the United by financial institutions and their sub- States. The bill also provides that noth- sidiaries and other business entities au- ing in the act is intended to restrict the thorized by law, and states that it is owner or operator from entering into not insurance for purposes of the Flor- agreements regarding access free fee ida Insurance Code. Financial institu- arrangements. The bill requires an tions are required to manage risks as- owner or operator of an ATM to disclose sociated with debt cancellation prod- such fees or surcharges in compliance ucts prudently, and to establish and with federal Regulation E,1 addressing maintain effective risk management and electronic fund transfers, which was is- control programs regarding such prod- sued by the Board of Governors of the ucts. Insurance purchased by a creditor Federal Reserve System, pursuant to the for debt cancellation products is de- federal Electronic Fund Transfer Act. fined as a form of casualty insurance. o Allows state-funded endowments that are o Increases the maximum delinquency funded by a general appropriation act charge from $10 to $25 for a default of prior to 1990 to maintain funds in state payment pursuant to a revolving account or federal financial institutions. provision in a retail installment contract.

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o Raises the minimum capitalization for a o Clarifies who can assert dissenter’s proposed bank to $8 million and deletes rights pursuant to the approval of the the differing capitalization for banks in sale of stock by a state bank or trust a metropolitan area and those in other company. The fair value of the shares of counties. The bill also raises the mini- stock will be determined using the proce- mum total capital accounts at opening for dures in s. 607.1326, F.S., and s. a trust company from $2 million to $3 607.1331, F.S., rather than by a panel of million and sets differing capitalization three appraisers. The new procedure standards for banks owned by a single- would be the same as is applied to cor- bank holding company and banks porations. owned by multibank holding companies. If approved by the Governor, these provi- o Eliminates the need for a bank or trust sions take effect October 1, 2007. company to obtain approval from the Of- fice of Financial Regulation (OFR) in order to increase its capital. However, a state bank or trust company must notify the OFR in writing 15 days before increasing its capital stock. The bill deletes the prohibition against a bank or trust company issuing capital stock with over a $100 par value. It states a financial institution may not issue or sell stock of the same class which creates different rights, options, warrants, or benefits among the purchasers or stockholders of that class of stock. However, the financial institution may create uniform restrictions on the transfer of stock as permitted in s. 607.0627, F.S.

150

2007 Florida Legislature Post-Session Report

Legal & The Judiciary Including legislation relating to criminal justice and law enforcement.

LEGAL & THE JUDICIARY z SB 2 Unattended Child in Motor Vehicle In Florida, from 1990 to the present, at least 102 children under the age of 15 died in vehicles in non-traffic incidents. In 2004, ten children died due to hyperthermia after being left in cars or entering vehicles that were unlocked. In addition to heat related injuries, children left unattended in vehicles have been injured and died from strangulation by a power window, from accidentally setting Rep. Trey Traviesa, R-Tampa, signals approval on the House the car in motion, from carbon monoxide floor during closing debate of the Regulation of Communica- poisoning, from falling out of the vehicle and tion Media Technology Services bill, which he sponsored. being run over, from choking and from ab- (House photo by Meredith Hill) duction. z HB 25 Adam Arnold Act/DUI Current law prohibits a parent, legal guard- The bill requires the imposition of a two-year ian, or other person responsible for a child minimum mandatory sentence for the offense under the age of six years from leaving the of leaving the scene of an accident involving child unattended or unsupervised in a motor death where the offender was driving under vehicle for a period in excess of 15 minutes the influence. The bill also requires a judge or for any period of time if the motor vehicle to order an offender to make restitution to the is running or the health of the child is in victim upon conviction for the offenses of danger. Violation of the section is a non- leaving the scene of an accident involving criminal traffic infraction, punishable by a injury or death. fine of not more than $100, or by a fine of between $50 and $500 if the motor is run- The bill provides for the imposition of “victim ning or the health of child is in danger. injury points” for these offenses. This will have the effect of significantly increasing the This bill makes it a second degree misde- lowest permissible sentence a judge can im- meanor to leave a child under the age of six pose for the offense of leaving the scene of unattended or unsupervised in a vehicle for an accident involving death. longer than 15 minutes. In addition, the bill makes it a third degree felony to violate the In addition, the bill requires the imposition of section and thereby cause great bodily a four-year minimum mandatory sentence for harm, permanent disability or disfigurement. the offense of DUI manslaughter.

If approved by the Governor, these provi- If approved by the Governor, these provisions take effect July 1, 2007. sions take effect July 1, 2007.

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The bill requires employees to provide ad- z HB 55 vance notice of the leave (except in cases of Domestic Violence/Employee Leave imminent danger) and use all annual or va- Any person who is either the victim of do- cation leave, personal leave, and sick leave mestic violence or has reasonable cause to available to the employee prior to using the believe he or she is in imminent danger of leave provided for in this bill (unless this re- becoming the victim of any act of domestic quirement is waived by the employer). violence may file a sworn petition for an injunction for protection against domestic vio- The bill authorizes employers to require lence. Florida law currently prohibits dismiss- documentation of the act of domestic vio- ing from employment any person who testi- lence, requires employers to keep informa- fies in a judicial proceeding in response to a tion relating to the employee’s leave confi- subpoena, but does not address other pro- dential, and prohibits employers from taking tections enumerated in this bill to victims of any disciplinary action against the employee domestic violence. for exercising rights under the bill. The bill is tied to HB 63, which provides the The bill specifies that the remedy for dam- public records exemption for records in pub- ages to an employee aggrieved under the lic employee personnel files related to do- bill is limited to a civil suit for damages or mestic violence. equitable relief in the circuit court. The bill requires employers with 50 or more If approved by the Governor, these provi- employees to allow employees who have sions take effect July 1, 2007. been employed for at least three months to request and take up to three working days of z HB 77 leave with or without pay within a 12-month Child Visitation period if the employee is the victim of domes- Pursuant to s. 753.001, F.S., supervised visi- tic violence and the leave is sought to: tation programs provide for “contact between a noncustodial parent and one or o Seek an injunction for protection against more children in the presence of a third per- domestic violence; son responsible for observing and ensuring the safety of those involved.” Supervised visi- o Obtain medical care or mental health tation programs may also be used to super- counseling; vise the “movement of a child from the cus- o Obtain services from a victim-services todial to the noncustodial parent at the start organization; of the visit and back to the custodial parent at the end of the visit.” o Make the employee’s home secure or to seek new housing; or The Florida Supreme Court has, by administrative order, adopted the Minimum Stan- o Seek legal assistance to address issues dards for Supervised Visitation Program arising from the act of domestic violence Agreements. The standards contained in the and to attend and prepare for court- order provide that the chief judge of each related proceedings arising from the act judicial circuit has the responsibility for the of domestic violence. oversight of court-ordered, supervised visita-

154 CARLTON FIELDS, P.A. tion and for agreements with service provid- directs the supervised visitation program to ers who meet the minimum standards. suspend visits if the child appears trauma- tized or if the visitor engages in inappropri- This bill creates the “Keeping Children Safe ate behavior. Act” which limits visitation of a child by a parent, caregiver, or grandparent who has If approved by the Governor, these provi- been reported to the child abuse hotline for sions take effect July 1, 2007. sexual abuse of a child or has been convicted of certain crimes involving minors. z SB 122 Specifically, the bill creates a rebuttable pre- Child Custody/ sumption that visitation with a parent or Not Modifying Child Custody caregiver will be detrimental to the child if This bill prohibits a court from permanently the parent or caregiver has been reported to modifying a child custody order after a par- the child abuse hotline for sexual abuse of a ent who is the primary caretaker of a minor child or has been convicted of certain crimes child has been activated, deployed, or tem- involving children. If the presumption is not porarily assigned to military service. In ef- rebutted, visitation must be prohibited or al- fect, the bill provides that a parent’s military lowed only through a supervised visitation activation, deployment, or temporary service program. is not a sufficient change in circumstances permitting a court to permanently modify a The Clearinghouse on Supervised Visitation custody award. (Clearinghouse) is located within the College of Social Work at Florida State University. The bill, however, permits a court to change The Clearinghouse was created to provide custody temporarily, if clear and convincing statewide technical assistance on issues re- evidence shows that the change is in the best lated to supervised visitation programs. The interest of the child. If custody is changed, bill directs the Clearinghouse to recommend the prior custody order must be reinstated to the Legislature standards that will ensure when the parent returns from military service. the quality and safety of supervised visitation The bill also directs courts to provide for lib- programs and requires that, until permanent eral visitation between the military parent standards are implemented, supervised visi- and the child while the military parent is on tation programs are to comply with the Flor- leave from military service. ida Supreme Court’s Minimum Standards for Supervised Visitation Programs Agreement. If approved by the Governor, these provisions take effect July 1, 2007. In addition, the bill requires that a supervised visitation program that accepts referrals in- z HB 123 volving sexual abuse must satisfy not only the Law Enforcement Minimum Standards for Supervised Visitation & Correctional Officers Programs Agreement, but also several addi- The bill amends current law to require any tional requirements. Specifically, these su- political subdivision that initiates or receives pervised visitation programs must have spe- a complaint against a law enforcement or cially trained staff and protocols for obtain- correctional officer to forward that complaint ing background material on client families to the officer’s employing agency. This must before the initiation of services. The bill also be done within 5 business days.

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The term “political subdivision” is defined by who is carrying specified identification is au- the bill, for purposes of this requirement, as: thorized to carry a concealed firearm. Under a separate agency or unit of government this act, the definition of the term “qualified created or established by law or ordinance retired law enforcement officer” includes a and the officers thereof and includes, but is requirement that the person has met the not limited to, an authority, board, branch, state’s standards for training and qualifica- bureau, city, commission, consolidated gov- tion for active law enforcement officers to ernment, county, department, district, institu- carry firearms. tion, metropolitan government, municipality, office, officer, public corporation, town, or This bill requires the Criminal Justice Stan- village. dards and Training Commission within the Florida Department of Law Enforcement to The bill also amends s. 112.532, F.S., re- adopt rules establishing the manner in which garding the rights of a law enforcement and the federal Law Enforcement Officers Safety correctional officer while under investigation Act of 2004 will be implemented in the state. or under interrogation by his or her own The bill requires the commission to develop agency. and authorize a uniform proficiency verification card to be issued to persons who The bill requires the investigating agency to achieve a passing score on the firing range interview all identifiable witnesses, whenever testing component of the minimum firearms possible, and provide the officer with all wit- proficiency course for active law enforce- ness statements and the complaint, before ment officers. The card will indicate the interviewing the accused officer. There is a person’s name and the date on which he or provision for a tolling of the limitation of time she achieved the passing score. Such a card on investigations when the Governor has will be issued only by firearms instructors declared a state of emergency. Also, the of- certified by the commission. ficer under investigation can waive the right to review the complaint and witness state- The bill allows facilities operating firing ments prior to his or her interview. ranges which use certified firearms instructors to open the firing range to other persons This bill substantially amends ss. 112.532 who wish to demonstrate their ability to and 112.533, F.S. achieve a passing score on the firing range proficiency course. All costs associated with If approved by the Governor, these provi- the demonstration by any such person that sions take effect July 1, 2007. he or she meets the requirements of the firing range testing component of the minimum z HB 143 firearms proficiency course will be at the Criminal Justice Commission expense of the person being tested. In 2004, Congress passed the “Law En- forcement Officers Safety Act of 2004,” If approved by the Governor, these provi- commonly known as HR 218. According to sions take effect July 1, 2007. the act, notwithstanding any other provision of the law of any state or political subdivision, an individual who is a “qualified law enforcement officer” or “qualified retired law enforcement officer” as defined by the act and

156 CARLTON FIELDS, P.A.

mal breathing or circulation of the blood of a z SB 146 family or household member or of a person Anti-Murder Act/Violent Offenders with whom he or she is in a dating relation- The bill (Chapter 2007-2, L.O.F.) addresses ship, so as to create a risk of or cause great felony probation and community control vio- bodily harm by applying pressure on the lations by designating certain alleged pro- throat or neck of the other person or by bation or community control violators as blocking the other person’s nose or mouth. violent felony offenders of special concern. A The bill also defines “family or household violent felony offender of special concern who member” and “dating relationship,” and exis alleged to have violated felony probation or empts statutorily-authorized medical diagno- community control, other than a failure to pay sis, treatment, or prescription. costs, fines, or restitution, cannot be released from jail until the court has held a hearing to If approved by the Governor, these provi- determine whether supervision was violated. sions take effect October 1, 2007. If supervision was violated, the court must determine and enter a written finding as to z HB 311 whether the violent felony offender of special Probate concern is a danger to the community. The This bill was designed by the Real Property, court must also determine whether to revoke Probate, and Trust Law Section of The Florida or continue the probation or community con- Bar (RPPTL) to update the Florida Probate trol. If it is determined that the violator is a Code. A number of the changes made by the danger to the community, the court must re- bill are technical in nature. The effects of the voke probation or community control and sen- provisions of the bill are described below. tence the offender according to the Criminal Punishment Code, up to the statutory maximum Caveat or longer if permitted by law. The bill increases The bill integrates the language of Florida Criminal Punishment Code points for a vio- Probate Rule 5.260(f) into s. 731.110, F.S. lent felony offender of special concern to As a result, the bill may clarify that a person an additional 24 points for a new felony who files a caveat is entitled to be served with conviction and an additional 12 points for a petition for administration before a will is other violations. admitted to probate. However, this provision of the bill read in conjunction with existing s. The bill amends ss. 921.0024 and 948.06 733.2123, F.S., likely requires the caveator and creates ss. 903.0351 and 948.064, to challenge the will and the qualifications of F.S. the personal representative before a personal representative is authorized to take actions on These provisions were approved by the Gov- behalf of an estate. ernor and took effect March 12, 2007 Arbitration of Disputes z SB 184 The bill makes enforceable provisions of a will Strangulation/Domestic Battery or trust requiring arbitration to resolve disputes The bill amends s. 784.041, F.S., to provide between or among beneficiaries or benefici- that a person commits domestic battery by aries and a fiduciary. A requirement for the strangulation, a Level 6 third degree felony, if use of arbitration will be interpreted to mean the person knowingly and intentionally, binding arbitration, unless specified other- against the will of another, impedes the nor- wise.

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Elective Share Laws breach of a fiduciary duty committed in bad The bill conforms the value of property not faith or with reckless indifference to the pur- subject to a spouse’s elective share, which poses of the will or the interests of interested was given as a gift within a year of the de- persons. However, limitations on liability cedent’s death, to the current amount ex- inserted in a will at the behest of a per- cludable from taxable gifts under s. 2503 sonal representative may be enforced if the of the Internal Revenue Code. As a result, limitation is fair and was communicated to this amount will increase to $12,000 from the testator or the testator’s attorney. $10,000. Moreover, statute will track future changes in the amount excludable from tax- Definition of Descendant able gifts resulting from the cost-of-living ad- and Collateral Heir justment in s. 2503(b)(2) of the Internal Reve- The bill clarifies that the terms “descen- nue Code. dant” and “lineal descendant” are syn- onymous. Moreover, the bill changes refer- The bill makes pensions, retirement or de- ences in existing law to descendant from lin- ferred compensation plans, or similar ar- eal descendant. The bill also provides a defi- rangements that were not subject to creditor nition of collateral heir and makes other claims during a decedent’s life available to technical changes. fund a spouse’s elective share. As such, these funds, which are available under existing law Foreign Personal Representatives to pay creditor claims on the death of the The bill increases the amount of time to 90 owner, may no longer be available to pay days from 60 days that a debtor to a dece- creditor claims under the bill. dent domiciled in another state must wait, in certain circumstances, to pay the debt to an This bill revises the definition of “elective out-of-state personal representative. share trust” in s. 732.2025(2)(b), F.S., to no longer include trusts “subject to the provisions If approved by the Governor, these provi- of former s. 738.12, F. S.” According to the sions take effect July 1, 2007. RPPTL, the modification to the definition “en- z HB 339 sures that an elective share trust will qualify Federal Law Enforcement Officers for the Federal estate tax marital deduction.” The bill redefines the term “law enforce- The bill revises the description of a protected ment officer” under s. 784.07, F.S., to in- charitable interest in s. 732.2075(2), F. S. The clude federal law enforcement officers. The changed description clarifies that certain effect of this change is that provisions of s. transfers to protected charitable interests are 784.07, F.S., that reclassify the degree of not available for the payment of the elective assault or battery offenses committed upon share. law enforcement officers and others, provide for a five-year mandatory minimum term Exculpation of Personal when the offense is aggravated battery, and Representative provide for a three-year mandatory minimum The bill restricts the enforceability of a provi- term when the offense is aggravated assault, sion of a will which limits the liability of a per- will apply to assault and battery offenses sonal representative for a breach of a fiduci- upon federal law enforcement officers. Vari- ary duty. Accordingly, under the bill, a per- ous mandatory minimum terms relevant to bat- sonal representative cannot be relieved for a tery with a firearm, destructive device, semi-

158 CARLTON FIELDS, P.A. automatic firearm and its high-capacity de- This bill substantially amends ss. 775.0823, tachable box magazine, or a machine gun 921.0024, and 947.146, F.S. will also apply. If approved by the Governor, these provisions The bill also amends s. 843.08, F.S., take effect October 1, 2007. which punishes falsely personating a law enforcement officer and others, to also punish z SB 448 falsely personating a federal law enforcement County Funding/Court Personnel officer. This false personation is a third degree This bill clarifies the status of employees felony. If this false personation occurs during who are funded by the county to help with the course of the commission of a felony, it is the operation of the circuit court under an a second degree felony, except if such com- agreement created pursuant to s. 29.008 1, mission results in the death or personal injury F.S. The bill deletes existing language stating of another human being, in which case it is that county-funded personnel are employees a first degree felony. of the judicial circuit. It provides that the county shall be considered the employer for If approved by the Governor, these provi- purposes of s. 440.10, F.S., of the Workers’ sions take effect July 1, 2007. Compensation Law and for purposes of the Unemployment Compensation Law. The bill z HB 409 also permits these county-funded employees to Criminal Sentencing be aggregated with other county employees This bill adds the offense of attempted felony for purposes of a flexible benefits plan un- murder to the list of offenses committed der s. 125 of the Internal Revenue Code. against law enforcement officers or other simi- The bill clarifies that when a county provides lar officials which are subject to an increased personnel to the judicial circuit, the circuit and certain penalty. Under such circum- shall supervise the employees, shall be re- stances, a person convicted of attempted fel- sponsible for compliance with all require- ony murder is subject to a 2.5 sentencing ments of federal and state employment laws point multiplier under the Criminal Punishment (e.g., Americans with Disabilities Act and Code. The bill also increases the sentencing Family Medical Leave Act), and shall in- multiplier in the case of second-degree murder demnify the county from liability under of a law enforcement officer or other similar those laws for acts or omissions of the cir- official to 2.5, from the existing multiplier cuit. of 2.0. As a result, this bill increases the lowest permissible sentence that can be im- If approved by the Governor, these provi- posed against a person for conviction of one sions take effect July 1, 2007. of these violent offenses against a law enforcement officer or similar official. z HB 449 Criminal Offenses/ The bill also adds attempted felony murder State of Emergency committed against a law enforcement officer This bill reclassifies the felony degree of certain or other similar official to those crimes that burglary and theft offenses if any of them were render an inmate ineligible for control re- committed within a county that is subject to a lease. state of emergency declared by the Governor under ch. 252, F.S., after the declaration of

159 2007 LEGISLATIVE REPORT emergency is made, and the perpetration of spousal support, life insurance, choice of law, the offense was facilitated by conditions aris- and any other matter, including personal ing from the emergency. The term “conditions rights and obligations not in violation of arising from the emergency” means civil un- public policy or criminal laws may be gov- rest, power outages, curfews, voluntary or erned by a premarital agreement. The bill mandatory evacuations, or a reduction in further provides that child support may not be the presence of or response time for first waived by agreement. responders or homeland security personnel. However, the bill does not expressly state It also creates two new felony offenses, bur- whether one may contract away a future ob- glary of an authorized emergency vehicle ligation to pay attorney’s fees, as well as ali- and theft of law enforcement equipment val- mony and suit money, during a separation ued at more than $300 from an authorized prior to dissolution of marriage. Nevertheless, emergency vehicle. under existing case law, these contractual provisions likely will continue to be invalid as The offense severity ranking level of the bur- a violation of public policy. glary and theft offenses is increased by one level if the offenses are reclassified. Test for Validity The test for determining the validity of a pre- A person arrested for committing any of these marital agreement under the bill is similar to offenses within a county that is subject to such existing case law but with some subtle a state of emergency may not be released changes. First, the bill omits deceit and mis- until the person appears before a committing representation as potential grounds for the magistrate at a first-appearance hearing. invalidation of a premarital agreement. How- ever, these grounds may be redundant with This bill substantially amends ss. 810.02 and fraud as a potential ground for invalidity un- 8 12.014, F.S. der the bill.

If approved by the Governor, these provi- Second, existing case law provides that a pre- sions take effect July 1, 2007. marital agreement is invalid if it is “unfair or unreasonable” and there was a concealment z SB 624 of assets on the part of the defending spouse Uniform Premarital Agreement Act or a lack of knowledge of the defending This bill substantially codifies the Uniform Pre- spouse’s assets on the part of the challenging marital Agreement Act (UPAA) by the National spouse. The bill seems to subsume the ele- Conference of Commissioners on Uniform ments of unfairness and unreasonableness State Laws (NCCUSL). In effect, this bill, with into a new standard of unconscionability. some changes and additions, codifies existing Florida judicial opinions defining the Third, the bill eliminates the shifting burden permissible content and validity of premari- under existing case law. Under existing case tal agreements. law, if a spouse shows that a premarital agreement is unfair or unreasonable, an Subject Matter of Agreements evidentiary burden shifts to the defending The bill provides a nonexclusive list of matters spouse to prove that the challenging spouse that may be addressed in a premarital had adequate knowledge of a defending agreement. For example, property rights, spouse’s assets. Under the bill, the party chal-

160 CARLTON FIELDS, P.A. lenging a premarital agreement has the bur- Limitation of Actions den to prove the lack of disclosure or knowl- The bill tolls statutes of limitations that apply edge of the defending spouse’s assets. Lastly, during a marriage to claims for relief under a the bill permits a party to an agreement to premarital agreement, but certain equitable waive the right to disclosure of another party’s defenses to the claim may apply. The Com- assets and financial obligations. ment to Section 8 of the UPAA provides that this provision may “avoid the potentially dis- Notwithstanding the foregoing, a court may ruptive effect of compelling litigation be- require a party to a premarital agreement to tween spouses.” support the other party to the extent necessary to make the party ineligible for public If approved by the Governor, these provisions assistance. take effect October 1, 2007, and apply to premarital agreements executed on or after Void Marriages that date. The bill provides that if a marriage is void, a premarital agreement made in connection with z HB 743 the marriage is enforceable only to the extent Trusts necessary to prevent an inequitable result. The bill amends various sections of the Flor- ida Trust Code to: Written Agreements Required The bill departs from existing case law in that o Expand the power of a bank or trust it requires premarital agreements to be in writ- company that is acting as a trustee to in- ing and signed by the parties. Oral premari- vest in investment instruments that the tal agreements entered into after the bill takes bank or trust company owns or controls. effect will no longer be enforceable. The bill A trust company or bank that is acting further permits premarital agreements to be as a trustee of a trust may invest in an amended, abandoned, or revoked upon a investment instrument it owns or controls written agreement signed by the parties. As if the investment instrument is available for such, the same formalities for creating a pre- sale to accounts of other customers (rather marital agreement are required for amend- than “primarily” sold to other customers); ment, abandonment, and revocation. and not sold to the trust account upon less favorable terms than the terms upon Interaction with the Florida Probate which they are “normally” sold to other Code customers. The bill expressly provides that it “does not alter the construction, interpretation, or re- o Limit the power of a trustee to distrib- quired formalities of, or the rights or obliga- ute the principal of a trust when the tions under, agreements between spouses trustee has absolute power under the under s. 732.701 or s. 732.702, F.S.” This trust’s terms to invade the principal of the provision appears to require premarital trust. A trustee with absolute power to agreements determining the disposition of a invade principal may take the principal spouse’s assets upon death to be attested by of a trust (first trust) and place the two witnesses. However, the bill does not property in a second trust if the bene- appear to require other premarital agree- ficiaries of the second trust include ments to be witnessed. only beneficiaries of the first trust; the second trust does not reduce any fixed

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income, annuity, or unitrust interest in contracts if the trustee did not disclose that the assets of the first trust; and if the he or she was acting as a fiduciary. first trust qualified for a marital or Moreover, s. 736.1013(2), F.S., pro- charitable federal income tax deduc- vides that a trustee may have personal tion, the second trust does as well and liability for certain torts for which the does not reduce the deduction. When trustee is personally at fault. principal is invaded under an absolute power, it must be done in writing, o Make certain provisions of the Florida signed and acknowledged by the trus- Probate Code inapplicable to trusts. tee, and filed with the records of the first trust. The exercise of this power o Provide that a creditor of a beneficiary of may not be used to appoint in favor of a discretionary trust may not compel a the trustee or the trustee’s creditors and distribution from a trust or reach a bene- cannot be used in a manner that would ficiary’s interest in the trust. postpone the vesting of the trust estate o Make certain accounting provisions ef- beyond the rule against perpetuities. fective on the effective date of the new Sixty days advance notice must be Florida Trust Code. given to all qualified beneficiaries of the first trust prior to the exercise of the o Provide that certain anti-lapse statutes in power to invade principal. effect before the effective date of the new Florida Trust Code apply to preexisting o State that exculpatory terms caused to be trusts. drafted by a trustee are invalid unless the trustee proves that the exculpatory If approved by the Governor, these provisions term is fair under the circumstances, take effect July 1, 2007. and (if the trust is created after July 1, 2007) the term’s existence and z SB 978 contents were adequately communi- Court-ordered Nonbinding cated to the settlor or the independent at- Arbitration torney of the settlor. This bill revises procedures for court-ordered nonbinding arbitration. The bill also revises o Revise the definition of “land trust” to the threshold for the imposition of liability for apply only to trusts in which ownership an opponent’s attorney’s fees and costs after of real property is vested in the trustee the rejection of an arbitrator’s award and a and to provide that the recorded land trial of an arbitrated matter. Specifically, the trust instrument does not create an en- bill provides that arbitration must be infor- tity. mal; the presentation of evidence must be kept to a minimum; matters must be pre- o Establish under what circumstances a sented primarily through counsel; litigants trustee of a land trust may be personally must show good cause for the issuance of liable for torts committed while adminis- subpoenas; and courts may impose attor- tering a trust and for contracts made by ney’s fees and costs on a party who requests the trustee in a fiduciary capacity. By a trial if a judgment at trial varies by 25 per- operation of s. 736.1013(1), F. S., a cent or more from an arbitrator’s decision. trustee may be personally liable on

162 CARLTON FIELDS, P.A.

If approved by the Governor, these provi- districts to share the results of the background sions take effect October 1, 2007. checks. A contractor who has submitted to a fingerprint-based background check in an- z SB 988 other district must report that fact to the dis- High-risk Offenders trict where he or she intends to work. This bill amends Jessica Lunsford Act provi- School districts must use the shared system to sions that require background checks for verify the information at no charge to the contractors on school grounds. It specifies contractor. offenses that disqualify a noninstructional contractor from being on school grounds The bill requires a contractor who is arrested when students are present. The bill clarifies for a disqualifying offense to report the arrest that contractors who contract directly with to the employer or primary contractor and the schools must be screened. It provides an ex- school district within 48 hours. If a contractor emption from the screening requirement for a has been arrested for a qualifying offense, it non-instructional contractor who: (1) is under is a third-degree felony for the contractor to direct line-of-sight supervision of a person willfully fail to report the arrest or for an em- who meets the screening requirements; (2) is ployer or primary contractor to knowingly already required, and has, undergone a level authorize the contractor to be on school 2 background screening; (3) is a law en- grounds when students are present. forcement officer assigned or dispatched to school grounds, or an employee or medical If a school district determines that a contractor director of an ambulance provider; (4) works is to be denied access to school grounds, the and remains in an area separated from stu- bill requires that the contractor be notified of dents by a 6-foot chain link fence; or (5) the basis for denial. The only basis for contest- provides pick-up or delivery services to ing the denial is mistaken identity and misin- school grounds. The bill also exempts instruc- terpretation of an offense from another juris- tional personnel who work with children with diction. developmental disabilities or who are child care personnel if they have undergone a The bill provides immunity from civil and crimi- required level 2 background screening in nal liability for employees of school districts the previous five years, meet the standards, and schools who share background check and have fingerprints retained by FDLE. information in good faith. It also provides that Exempt contractors are subject to a search the new or amended portions of the School of the state and national registry of sexual Code are not intended to create a new duty predators and sexual offenders at no charge of care or basis of liability, or to create a pri- to the contractor. vate cause of action.

The fingerprint-based background check must In addition, the bill requires sexual predators be performed at least every five years and and sexual offenders to obtain a driver’s li- may be paid for by the school board, the cense or identification card that has a desig- school, or the contractor. Any fee charged nated marking on the front. Possession of a by a school board may not exceed 30 per- card on which the markings are not displayed cent of the total costs charged by FDLE and or have been altered will be unlawful after the FBI for the check. FDLE is required to im- February 1, 2008. plement an Internet-based system for school

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If approved by the Governor, these provisions $250 to $500; and take effect July 1, 2007, except as otherwise provided. o Permits a crime victim, who is a Flor- ida resident, to be compensated when z HB 989 the crime occurs outside Florida, whether Crime Victims in another state or outside the United This bill expands the rights and services for States, if such crime would otherwise be victims of sexual offenses, including sexual compensable had it occurred in Florida. battery and lewd or lascivious offenses. Several of the proposed changes to ch. This bill substantially amends ss. 960.001, 960, F.S., are necessary to receive federal 960.003, 960.03, and 960.28, F.S. grant funding for law enforcement programs, victim advocacy services, and enhanced If approved by the Governor, these provi- prosecution through the Violence Against sions take effect July 1, 2007. Women Act. The bill expands the rights and z SB 1004 services for victims of sexual offenses as fol- Cybercrimes Against Children Act of lows: 2007 o Allows a victim advocate to be present This is the Cybercrimes Against Children Act (at a sexual offense victim’s request) dur- of 2007. It enhances penalties for possession ing the forensic medical exam; of certain types of child pornography and expands the scope of s. 847.0135, F. S., o Provides that a criminal justice official concerning use of the Internet to influence a (law enforcement officer, prosecuting at- child to commit sexual acts. New felony of- torney, or other government official) fenses are created for misrepresenting age in may not ask for or require a lie detector the course of committing an offense under s. test to be taken by a victim before a law 847.0135(3), F.S., and for traveling to meet enforcement agency will investigate a a minor to engage in unlawful sexual con- sexual offense allegation; duct with a child or person thought to be a child, or to persuade the child’s guardian to o Requires the court to order prescribed consent to the child’s participation in sexual defendants to undergo an HIV test within conduct. In addition, statutes are updated to 48 hours after the court orders such test- address newer technologies that are used to ing (there is currently no required time facilitate sexual abuse of children and to limitation); transfer images of sexual abuse of children. o Requires reimbursement from the Crime As of October 1, 2007, sexual predators Victims’ Services Office for the victim’s and sexual offenders will be required to reg- initial forensic medical exam, regard- ister any email address and instant message less of whether the sexual offense vic- name with the Florida Department of Law tim reported the offense or cooperated Enforcement (FDLE) prior to use and to update with the investigation (which is currently any changes. FDLE must establish a method required); for online registration and is authorized to provide the information to social networking o Increases the forensic medical exam websites, which can use the information to reimbursement maximum amount from screen for those users.

164 CARLTON FIELDS, P.A.

The legislation also expands the investiga- Criminal Justice Standards and Training Trust tive and prosecutorial authority of the Of- Fund. fice of Statewide Prosecution (OSP) and the subject matter jurisdiction of the statewide The bill also requires a person seeking seal- grand jury to include violations of ch. 827, ing or expunction of his or her criminal his- F.S., (concerning abuse of children) when tory records to pay all outstanding fines and the crime is facilitated by or connected to use court costs, unless the court makes a finding of the Internet or an electronic data storage or otherwise. transmission device, and by deeming that crimes facilitated by or connected to use of This bill substantially amends ss. 318.18, the Internet occur simultaneously in every 327.73, 938.01, and 938.30, F.S. Florida judicial circuit. It authorizes prosecu- If approved by the Governor, these provi- tors to charge an act that violates s. sions take effect July 1, 2007. 827.071, F.S., (relating to sexual performance of a child) or s. 847.0135, F.S., (relat- z SB 1088 ing to child pornography) under any ap- Due Process plicable statute, including one with The bill revises the process whereby indigent greater penalties. It also authorizes alter- persons and certain other eligible persons native venues for trial of any crime facili- are provided criminal and civil representation tated by communication by mail, tele- at state expense. The current system uses pri- phone, newspaper, radio, television, Inter- vate attorneys for criminal cases when a public net, or other means of electronic data defender has a conflict of interest, in depend- communication. ency and termination of parental rights proceedings, as well as certain other civil This bill amends ss. 16.56, 775.21, 827.071, proceedings as authorized by law. 847.0135, 905.34, 910.15, 921.0022, 943.0435, 944.606, and 944.607 and o The bill creates five regional offices to creates ss. 775.0847 and 943.0437, F.S. handle criminal conflict and dependency cases. If approved by the Governor, these provisions take effect October 1, 2007. o The Supreme Court Judicial Nominating Commission is to provide to the Governor z SB 1030 three candidates for each of the five re- Court Costs gional counsels for appointment. The bill increases court costs in the amount of one dollar ($1) assessed against a person o The regional offices are administratively who is found to have violated a criminal housed in the Justice Administrative Com- law or committed certain civil infractions. mission. The bill also increases, by the same amount, the assessment to be remitted to the Depart- o When the regional counsel has a conflict ment of Revenue from every bond estreature of interest, the court will appoint private or forfeited bail bond. counsel.

The additional dollar is earmarked for the o The bill defines the regional counsel offices Florida Department of Law Enforcement’s as an element of the state court system and

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requires the counties to provide facilities The bill redesignates the director of the Of- and technology to the regional offices. fice as the Chief Child Advocate, and authorizes the Office to establish a direct- o The local indigent services committees are support organization to support the state in eliminated. Caps for attorney fees for carrying out its purposes and responsibilities cases handled by private counsel are regarding the promotion of adoption, the continued in statute. The cap for capital support of adoptive families, and the preven- cases is raised from $3,500 to $15,000. tion of child abuse, by raising money, receiv- All rates will be set each year in the ing grants, and making expenditures on be- General Appropriations Act. half of the Office. o When private attorneys believe the state The bill also modifies the state’s subsidized fee is insufficient, the chief judge or desig- adoption program, which provides financial nee must hold a hearing to determine if aid to prospective adoptive parents to enable excess fees are needed. The court is to re- them to adopt children in foster care who, be- port to the Legislature by circuit the num- cause of their special needs, have proven ber and amount of excess fees. difficult to place in permanent homes. o The bill has various effective dates. Some This bill provides that, subject to appropria- provisions, such as those relating to rates tion, the Department of Children Family Ser- paid to private counsel become effec- vices shall pay an annual subsidy of $5000 tive upon becoming law; the regional (or another agreed upon amount) to qualified counsel is appointed July 1, 2007 and adopting families for the support and mainte- assumes the duties October 1, 2007. nance of adopted children. The bill expands eligibility for these adoption subsidies to in- If approved by the Governor, these provisions clude children in the custody of DCF who do take effect upon becoming law except as oth- not otherwise meet the definition of a “spe- erwise provided. cial needs child.” z HB 1309 The bill amends language in s. 409.166, Adoption & Child Protection F.S., to conform Florida law to federal law In 2006, the Legislature established a central- related to Title IV-E funding for maintenance ized Office of Child Abuse Prevention within adoption subsidies. These changes ensure the Executive Office of the Governor to exam- compliance with federal Title IV-E, which re- ine, oversee, and implement child abuse pre- imburses the state for the care and mainte- vention services. Recognizing that increasing nance of children in foster care as well as for the adoption rate for children who have been maintenance adoption subsidies. abused or neglected and cannot safely return to their families is an important part of the The bill appropriates $2,991,305 in recur- state’s child abuse prevention efforts, this bill ring funds from the General Revenue Fund, renames the Office of Child Abuse Preven- $2,335,445 in recurring funds from the Fed- tion as the Office of Adoption and Child eral Grants Trust Fund, and $346,772 in re- Protection (Office), and revises the purpose of curring funds from the Welfare Transition Trust the Office to include the promotion of adop- Fund to DCF for the purpose of providing tion and the support of adoptive families. adoption maintenance subsidies.

166 CARLTON FIELDS, P.A.

If approved by the Governor, these provi- five thousand dollars. The punishment sions take effect July 1, 2007. of a habitual felony offender or a habitual violent felony offender is com- z HB 1441 prised of enhanced penalties or manda- Female Genital Mutilation tory minimum prison terms. Using data from the 1990 U.S. Census, along with country-specific prevalence data The bill does not apply to a procedure per- on female genital mutilation (FGM), the Center formed by or under the direction of a licensed for Disease Control estimated that in 1990, physician, osteopathic physician, registered there were approximately 168,000 girls and nurse, practical nurse, advanced registered women living in the United States with or at nurse practitioner, midwife, or physician as- risk for FGM. sistant.

The bill creates s. 794.08, F.S., which makes it The bill creates an exception for procedures a felony to perform or contribute to the per- necessary to preserve the health of a female formance of FGM. The following felonies are younger than 18 years of age. The bill specified: eliminates consent of a female person younger than 18 or the consent of a parent, o First Degree Felony: A person who guardian, or person who is in a position of commits FGM on a female younger than familial or custodial authority to a female per- 18 years of age commits a felony of the son younger than 18 as a defense to the of- first degree. A felony of the first degree fense of FGM. is punishable by a term of imprisonment not exceeding 30 years, a term of The bill also amends s. 921.0022, F. S., to imprisonment not exceeding life when create felony classifications in the offense se- specifically provided by statute, and/or verity ranking chart of the Criminal Punish- a fine not to exceed ten thousand dollars. ment Code for the specified violations. o Second Degree Felony: A person If approved by the Governor, these provi- who removes, or causes or permits the sions take effect October 1, 2007. removal of a female younger than 18 years of age from the state for the pur- z SB 1604 pose of FGM commits a felony of the Sexual Offenders & Predators second degree. A felony of the second The bill makes changes to Florida’s laws re- degree is punishable by a term of im- garding registration of sexual predators and prisonment not exceeding 15 years sexual offenders to comply with the federal and/or a fine not to exceed ten thousand “Adam Walsh Child Protection and Safety dollars. Act of 2006” (“Adam Walsh Act”), Pub.L. No. 109-248 (2007), as well as making other o Third Degree Felony: A parent or changes necessary to effectuate implementa- guardian who consents to the FGM of tion of the registration laws. The major fea- a female younger than 18 years of age tures of the bill include: commits a felony of the third degree. A felony of the third degree is punishable o Expanding the population of offenders by a term of imprisonment not exceeding required to register to include some juve- five years and/or a fine not to exceed niles adjudicated delinquent of certain

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crimes. A juvenile who, on or after o Local law enforcement agencies, the July 1, 2007, has been adjudicated Department of Corrections, and the delinquent for committing, or attempt- Department of Juvenile Justice will be re- ing, soliciting or conspiring to commit, quired to report to the Florida Department sexual battery or some types of lewd of Law Enforcement (FDLE) the failure of a battery or lewd molestation or similar sexual predator or sexual offender to offenses in another jurisdiction when comply with registration requirements. the juvenile was 14 years of age or older at the time of the offense is re- The FDLE will be required to develop and quired to register as a sexual offender. maintain a system to provide automatic notification of registration information re- o Providing that a person who was or garding sexual predators and sexual of- will be convicted or adjudicated de- fenders to the public. Schools, public hous- linquent of a violation of s. 794.011, ing agencies, agencies responsible for F.S. (sexual battery), or s. 800.04, conducting employment related background F.S. (lewd offenses), or who has com- checks, social service entities responsible for mitted such violation for which adju- protecting minors in the child welfare sys- dication of guilt was or will be with- tem, and certain other organizations will held, may move or petition a court have access to this system. for removal of the requirement to register as a sexual predator or sexual of- If approved by the Governor, these provi- fender if other initial criteria are met and sions take effect July 1, 2007. removal of the registration requirement will not conflict with federal law. The z SB 1644 court may grant the motion or petition if Theft the person meets initial criteria and re- This bill amends the theft statute, s. 812.014, moval of the registration requirement F.S., to provide that it is a second degree fel- will not conflict with federal law. If the ony to individually, or in concert with one or person is required to register pursuant to more other persons, coordinate the activities the Adam Walsh Act, the court will of one or more persons in committing theft have to make a finding that consensual where the stolen property has a value in ex- sexual conduct occurred so that the re- cess of $3,000. moval of the registration requirement This bill amends the retail theft statute, s. does not conflict with the federal act. 812.015, F. S., to provide that it is a second o Sexual predators and certain sexual of- degree felony to individually, or in concert fenders will be required to report in per- with one or more persons, coordinate the ac- son at the sheriff’s office every three tivities of one or more persons in committing months, rather than every six months. retail theft where the stolen property has a value in excess of $3,000. o Sexual predators and certain sexual offenders will be required to maintain reg- The bill amends the Criminal Punishment istration for life without the possibility of Code offense severity ranking chart to rank petitioning for removal of the registration the second degree felonies in Level 6. requirement.

168 CARLTON FIELDS, P.A.

If approved by the Governor, these provi- out the need to prove a substantial change in sions take effect October 1, 2007. circumstances. z SB 1770 If approved by the Governor, these provi- Technology to Supplement Visitation sions take effect October 1, 2007. Pursuant to s. 61.13 (2)(b), F.S., “it is the public policy of this state to assure that each z SB 2312 minor child has frequent and continuing con- Florida False Claims Act tact with both parents after the parents sepa- The Florida False Claims Act (FFCA) authorizes rate or the marriage of the parties is dis- civil actions by individuals and the state solved and to encourage parents to share the against persons who file or conspire to file rights and responsibilities, and joys, of child- false claims for payment or approval with a rearing. . .” state agency. This bill generally amends the FFCA to bring it into closer conformity to Consistent with this policy, this bill permits the Federal False Claims Act. a court, in connection with child custody proceedings, to order electronic communica- This bill makes the following changes to the tion between a parent and a child through Florida False Claims Act: telephones, e-mail, web cams, and other technologies. The bill creates a presumption o Amends multiple sections of the FFCA that telephone communication between a which provide that the act applies to parent and a child is in a child’s best inter- claims that are “false,” to apply instead ests, and requires a court to order telephone to claims that are “false or fraudulent”; communication unless the presumption is re- o Increases the statute of limitation for butted. bringing actions against people who vio- The bill provides that electronic communica- late the FFCA; tion must be used to supplement, rather than o Increases the civil penalty for violating the replace, face-to-face contact, and that court- FFCA to between $5,500 and $11,000 ordered electronic communication may not from between $5,000 and $10,000; have any impact on the calculation of child support. The bill requires the court to allocate o Reduces to 60 days from 90 days the between the parents any additional costs time that the court can stay actions of that will be incurred by either or both of discovery by a private individual initiat- them in order to implement the electronic ing an FFCA action when the Department communication, and requires the parents to of Legal Affairs shows that the discovery timely furnish each other with access to infor- would interfere with an investigation by mation necessary to facilitate electronic the state or the prosecution of another communication. matter arising out of the same facts; and The bill does not apply to judgments or orders o Provides that the FFCA pertains to false issued before October 1, 2007, but permits a or fraudulent claims submitted electroni- person whose child custody order does not cally. prohibit electronic communication to seek court-ordered electronic communication with-

169 2007 LEGISLATIVE REPORT

The provisions of this bill seem to satisfy intent in battering or cruelly or inhumanly provisions of federal law which specify that, treating a person who is confined in a secure if a state has in effect a law relating to false facility. or fraudulent claims which meets certain requirements, the federal medical assistance This bill also requires the agency having ju- percentage with respect to any amounts recov- risdiction over an individual who is convicted ered under a state action brought under that of a sexually violent offense and who is law shall be decreased by 10 percentage being evaluated for civil commitment to points. provide any available documentation indicat- ing whether the offender’s criminal history If approved by the Governor, these provi- includes incidents involving sexual acts or sex- sions take effect July 1, 2007. ual motivation. In addition, the bill clarifies that DCF, the Agency for Persons with Disabilities, z SB 2866 and entities that contract to operate a foren- Sexually Violent Predators sic facility or secure facility are considered In 1998, the Legislature enacted the Jimmy “employing agencies” for certified correc- Ryce Involuntary Civil Commitment for Sexu- tional officers. ally Violent Predators Treatment and Care Act. The act provides that persons who are If approved by the Governor, these provi- determined to be sexually violent predators sions take effect upon becoming law. may be civilly confined upon release from custody or expiration of a prison sentence. z HB 7107 These individuals are committed to the De- Child Support Enforcement partment of Children and Families (DCF) for In 2006, the Florida Supreme Court found long-term residential treatment, care, and cus- that a legal father, i.e., a man married to a tody at the Florida Civil Commitment Center child’s mother at the time of birth, is an indis- (Commitment Center) located in Arcadia. pensable party in an action to determine paternity and to place support obligations on There is no statutory authorization for the se- another man. In some cases, the whereabouts curity personnel or other staff of the Commit- of the legal father are unknown, and he can- ment Center to use force on persons confined not be served because current law does not there. There have been several incidents at permit service of process by publication in the Commitment Center that have necessitated paternity actions. intervention and outside assistance from local law enforcement or other state agencies to The bill permits service of process by publica- regain control of the facility and assure the tion on a legal father in a paternity action in safety of residents and staff. which another man is alleged to be the bio- logical father of the child after a diligent This bill authorizes employees of the Com- search and inquiry to locate the legal father mitment Center to use non-lethal force on per- is completed. sons committed to the program under certain circumstances. The bill describes procedures Additionally, the bill codifies the federal re- for documenting the use of force and incident quirement regarding the mandatory annual reporting, and makes it a separate criminal fee for support services provided by the De- offense for an employee to act with malicious partment of Revenue (department), as well as the federal requirement that states report indi-

170 CARLTON FIELDS, P.A. viduals who owe arrearages of child support fingerprinting equipment developed for in an amount exceeding $2,500, so that public employees, the associated fee, the federal government can deny, revoke and duties of the agency operators, or limit that person’s passport. The bill per- and instead directs the Statewide Pub- mits the department to waive electronic remit- lic Guardianship Office to develop tance of child support payments in specified rules relating to acceptable methods circumstances. Finally, the bill requires the de- for completing electronic fingerprint partment to use automated administrative en- criminal history record checks; forcement when responding to a request by another state to enforce support orders. o Clarifies that only professional guardians pay the fee associated with electronic fin- If approved by the Governor, these provi- gerprinting; sions take effect July 1, 2007. o Clarifies that the requirements related to z HB 7111 the completion of level 1 and level 2 Guardianship/ background screenings apply to profes- Criminal History Record Checks sional guardians and certain employ- The bill revises the statute governing criminal ees and are tied to the date of “regis- history record checks, background checks, and tration” as a guardian not “appoint- credit history investigations for guardians, to ment”; and delineate requirements according to whether the guardian is a professional or nonprofes- o Clarifies that the requirements related sional guardian. Specifically, the bill: to the completion of a credit history investigation for professional guardians o Provides requirements for a state and na- and certain employees are tied to the tional criminal history record check for date of “registration” as a guardian not nonprofessional guardians when ordered “appointment.” by a court; If approved by the Governor, these provi- o Clarifies that the Statewide Public sions take effect July 1, 2007. Guardianship Office and the court shall accept the satisfactory completion of a criminal history record check for professional guardians, while solely the court shall accept it for nonprofessional

guardians; o Specifies that the clerk of court shall maintain results of criminal history record checks for nonprofessional and professional guardians in the guardians’ files; o Limits the use of electronic fingerprinting to professional guardians. Deletes references to the network of electronic

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Public Records ■ Public Records Act ■ New Exemptions ■ Open Government Sunset Reviews

PUBLIC RECORDS z HB 63 Domestic Violence Victim This bill is tied to HB 55, which requires the submission of documentation in order for an employee to be granted leave related to incidents of domestic violence. This bill creates a public records exemption for personal identifying information contained in records documenting an act of domestic violence and submitted to an agency by an agency employee in order to obtain leave.

The bill also creates a public records exemption for written requests for leave submitted by an agency employee who is a victim of domestic violence and any agency time House Sergeant-at-Arms Earnest Sumner. left, and Senate Sergeant-at-Arms Donald Severance, right, drop their tradi- sheet that reflects such requests. tional handkerchiefs signaling sine die before a crowd in the Capitol rotunda, ending the 2007 Legislature on May 4. This bill provides for future review and re- (House photo by Meredith Hill) peal of the exemption and provides a state- ness information held by three entities: the ment of public necessity. Florida Opportunity Fund, the Institute for the Commercialization of Public Research, and If approved by the Governor, these provi- the Florida Technology, Research, and sions take effect July 1, 2007, if CS/HB 55 Scholarship Board. The bill also creates a or other similar legislation is passed, if such public meetings exemption where certain legislation is adopted in the same legislative information is discussed. session, or an extension thereof, and becomes law. Specifically, the bill creates public records or meetings exemptions for: z HB 131 Florida Opportunity Fund o Materials related to the methods of This bill creates a public records and public manufacture or production, for potential meetings exemption for certain information trade secrets, or for patentable material relating to venture capital investment in Flor- received, generated, or discovered dur- ida businesses created by its linked bill, ing the course of research or research CS/CS/JIB 83, an act relating to venture projects funded under the new venture capital investments. capital investment programs;

CS/CS/SB 131 makes confidential and ex- o Information that would identify an inves- empt certain proprietary, confidential busi- tor or potential investor who desires to remain anonymous;

175 2007 LEGISLATIVE REPORT o Any information received from a person program for the use of anabolic steroids by from another state or nation or the fed- high school student athletes in grades 9 eral government that is confidential or through 12 who participate in football, exempt under their laws; baseball, and weightlifting competitions under the Florida High School Athletic Associa- o Proprietary confidential business information (FHSAA). Additionally, records relating tion for 10 years after the termination of to challenge or appeal proceedings are ex- the alternative investment, in the case of empt. The information may only be disclosed the Florida Opportunity Fund and the In- to the FHSAA, the student, the student’s par- stitute for the Commercialization of Public ent, the student’s school, and the administra- Research; tion of any school to which the student transfers during a suspension from interscholastic o That portion of a meeting of either of the athletics resulting from a positive finding. The three entities where confidential and ex- bill creates an exemption from the Public empt information is discussed, as well as Meetings Law for the portions of meetings at the transcript and meeting minutes of which exempt records are discussed. The ex- those closed portions of a meeting. emptions are scheduled to repeal on Octo- ber 2, 2012, in accordance with the Open At the time any of the records, materials or Government Sunset Review Act. information made exempt by this bill becomes legally available or subject to public If approved by the Governor, these provi- disclosure, then they are no longer confiden- sions take effect July 1, 2007. tial and exempt and are available for public review and copying. z SB 816 Law Enforcement Agencies The bill also establishes a process by which Section 119.07 1(2)(c)2., F.S., provides that a request to inspect or copy a record made a request of a law enforcement agency to confidential and exempt by this bill for the inspect or copy a public record that is in the Florida Opportunity Fund and the Institute for custody of another agency, the custodian’s the Commercialization of Public Research response to the request, and any information may be granted by the courts, if the proprie- that would identify the public record that was tor of the information has not verified certain requested by the law enforcement agency or information. provided by the custodian are exempt from public records requirements during the pe- The bill provides for future review and repeal riod in which the information constitutes of the exemptions on October 2, 2012, and active criminal intelligence or investigative provides statements of public necessity. information. If approved by the Governor, these provi- This bill makes some organizational changes sions take effect July 1, 2007. for clarity, including transferring existing ret- z HB 463 roactive language to a new sub-subparagraph; Drug Test/High School Athletics clarifies that any information that would iden- The bill creates an exemption from the Public tify whether a law enforcement agency has Records Law for records related to drug tests requested or received that public record is pro- pursuant to the one-year random drug testing

176 CARLTON FIELDS, P.A. tected; and deletes the repeal of the exemp- released only as provided in ss. 322.125 tion. and 322.126, F.S.

If approved by the Governor, these provisions o Emergency contact information held by take effect October 1, 2007. DHSMV may be released only to law enforcement agencies for purposes of con- z SB 830 tacting those listed in the event of an HSMV Records/Public Disclosure emergency. The bill amends s. 119.0712(2), F.S., to make personal information in a motor vehicle The bill makes the exemption subject to the record confidential and exempt. Addition- Open Government Sunset Review Act and it ally, the bill modifies the definition of “per- will repeal October 2, 2012, unless re- sonal information” by expressly including viewed and reenacted by the Legislature. identification card numbers and emergency contact information. Also, the CS provides for In addition, the bill provides a public neces- the release of personal information held by sity statement as required by s. 24(c) Art. I, the Department of Highway Safety and Mo- State Constitution, to justify the exemption tor Vehicles (DHSMV) to comply with the from public records laws. The CS is needed, federal Drivers Privacy Protection Act according to the public necessity statement, to (DPPA). make personal information in an individual’s motor vehicle record confidential and ex- In addition, the bill includes the creation empt and to conform to federal law. The of a two tiered system for personal infor- public necessity statement also states the mation contained within the records of personal information contained in the state’s DHSMV and places additional restrictions on motor vehicle records could be used to in- the availability and use of social security vade the personal privacy of the person iden- numbers, photographs and images, medical tified in the records or could be used for other disability information, and emergency contact purposes, such as solicitation, harassment, information. stalking, and intimidation. Therefore, limiting access will protect the privacy of persons Specifically, the bill provides notwithstand- who are identified in those records and ing s. 119.07 12(2)(b), F.S., without the minimize the opportunity for invading that express consent of the person to whom such privacy. information applies, the following information contained in motor vehicle records may only If approved by the Governor, these provisions be released as specified in this paragraph: take effect July 1, 2007. o Social security numbers may be released z HB 853 only as provided in subparagraphs (b)2., Historic St. Augustine 5., 7., and 10. This bill exempts from public disclosure the identity of a donor or prospective donor who o An individual’s photograph or image contributes or may contribute to a direct- may be released only as provided in s. support organization of the University of Flor- 322.142, F.S. ida for purposes of historic preservation in St. Augustine, if the donor wishes to remain o Medical disability information may be anonymous.

177 2007 LEGISLATIVE REPORT

The exemption sunsets on October 2, 2012, in of public necessity for the public records ex- accordance with the Open Government Sunset emption created in the bill. Review Act, unless reenacted by the Legisla- ture. If approved by the Governor, these provisions take effect on the same date that Sen- If approved by the Governor, these provi- ate Bill 770, or similar legislation requiring a sions take effect July 1, 2007. physician survey as a condition of licensure, takes effect if such legislation is adopted in z SB 886 the same legislative session or an extension OGSR/Building Plans & Drawings/ thereof and becomes law. Agency The bill reenacts and amends s. 119.071 z SB 1452 (3)(b), F. S. This section provides a public OGSR/Public Service Tax records disclosure exemption for building The bill repeals s. 36, ch. 2001-140, Laws of plans, blueprints, schematic drawings, and Florida, which grants the authority to audit diagrams which depict the internal layout telecommunication service providers’ records and structural elements of a building, arena, to ensure compliance with the Public Service stadium, water treatment facility or other Tax, and repeals s. 166.236, F.S., which structure owned or operated by an agency as provides an exemption for proprietary and defined in s. 119.011, F.S. The exemption confidential business information collected applies to draft, preliminary, and final formats during Public Service Tax audits. of such plans. The bill makes the exemption permanent and reorganizes the section to If approved by the Governor, these provi- clarify the exemption. sions take effect October 1, 2007.

If approved by the Governor, these provi- z SB 1510 sions take effect October 1, 2007. Sunshine State One-Call This bill creates an exemption for protection of z SB 1034 proprietary and confidential business informa- Physician Workforce Surveys tion disclosed during the filing of a ticket and The bill creates an exemption from the re- for information submitted to Sunshine State quirements of the Public Records Law to make One-Call, Inc., describing the extent of dam- all personal identifying information con- ages during an excavation of underground tained in records provided by Florida- facilities. licensed allopathic and osteopathic physicians in response to the physician workforce Confidential business information is defined as survey required by the Department of 11ealth “maps, plans, facility location diagrams, inter- (DO11) as a condition of license renewal and nal damage investigation reports or analy- held by the DO11 confidential and exempt. ses, dispatch methodologies, or trade secrets The confidential and exempt information may as defined in s. 688.002, F.S., or which de- be disclosed upon the consent of the individual scribes the exact location of an underground to whom the information pertains, by order of facility or protection, repair, or restoration of a court, and to research entities under speci- a facility by a member operator.” fied conditions. The bill provides a statement Exemptions are subject to Open Government Sunset Review Act in accordance with s.

178 CARLTON FIELDS, P.A.

119.15, F.S., and shall stand repealed on count numbers” has been interpreted by the October 2, 2012, unless reviewed and Department of Financial Services to include saved from repeal through reenactment by types of account numbers that are not directly the Legislature. related to finances (such as patient medical records). The bill removes the exemption for If approved by the Governor, these provi- financial account numbers, a term that is un- sions take effect July 1, 2007. defined by statute. Instead, a property identi- fier— the descriptor used by the property z SB 1760 holder to identify the unclaimed property—is Custodian of Public Records made exempt under the bill. The bill does not The bill amends the Public Records Act to pro- include a reference to bank account numbers, vide that a custodian of public records, or debit, charge, and credit card numbers be- other person in an agency having custody of cause an agency has authority to hold a public record, may designate another offi- such items exempt pursuant to s. 119.071 cer or employee to permit inspection and (5)(b), F. S. Because the bill expands the copying of public records. If such designation public records exemption, it is made subject is made, the custodian or person with custody to the Open Government Sunset Review Act must disclose the identity of the designee to and will repeal on October 1, 2012 unless person requesting to inspect or copy public reviewed and reenacted. records. If approved by the Governor, these provi- The bill requires a custodian or designee to sions take effect October 1, 2007 promptly acknowledge requests to inspect or copy records and to respond to such requests z SB 1852 in good faith. A good faith response includes OGSR/Consumer Complaints/ making reasonable efforts to determine from Inquiries other officers or employees within the agency This bill is the result of the Senate Interim Pro- whether the record exists and, if so, the loca- ject Report 2007-202 (Open Government tion at which the record can be accessed. Sunset Review of Section 624.23, F.S., Personal Financial and Health Information If approved by the Governor, these provisions in Consumer Complaints to Department of take effect July 1, 2007. Financial Services or Office of Insurance Regulation). This bill makes exempt from the z SB 1848 public record requirements certain personal OGSR/DFS Information/ financial and health information of a con- Unclaimed or Abandoned Property sumer held by the Department of Financial The bill amends and reenacts the public Services (department) or the Office of Insur- records exemption in s. 717.117(8), F. S., ance Regulation (OIR) relating to a con- related to reports of unclaimed property. The sumer’s complaint or inquiry regarding a mat- bill re-enacts the public records exemption for ter regulated under the Florida Insurance social security numbers and expands the ex- Code. Confidential and exempt information emption by exempting “property identifiers” includes bank account numbers, debit, contained in an unclaimed property report charge, and credit card numbers, and all per- instead of “financial account numbers.” Rep- sonal financial and health information. How- resentatives from the Bureau of Unclaimed ever, this exemption does not include the Property indicated that the term “financial ac-

179 2007 LEGISLATIVE REPORT name and address of an inquirer or com- and exempt from public disclosure the iden- plainant or the name of an insurer or other tity of a parent who leaves a newborn infant regulated entity that is the subject of the in- at a hospital, emergency medical services quiry or complaint. station, or fire station in accordance with s. 383.50, F.S. This public records exemption This section is subject to repeal on October 1, is statutorily scheduled to expire on October 2007 without legislative action to save it. This 2, 2007. This bill repeals the October 2, bill retains the exemption; however, it makes 2007 expiration date for this public records the following revisions: exemption. o The bill narrows the current exemption If approved by the Governor, these provi- by specifying what “other personal fi- sions take effect upon becoming law. nancial and health information” is confidential and exempt based the current z HB 7127 definition of such information provided OGSR/PEORP/ in rules adopted by the department and Identifying Information the OIR. Personal financial and health The bill reenacts the public records exemption information would include a consumer’s for personal identifying information of a par- personal health condition, disease, or in- ticipant in the Public Employee Optional Re- jury and certain records and information tirement Program, contained in Florida Re- relating to a consumer’s personal finances tirement System records, held by the State and insurance coverage. Board of Administration or the Department of Management Services. o The exemption is expanded to include the same personal financial If approved by the Governor, these provisions and medical information provided by take effect October 1, 2007. consumers to the Division of Workers’ Compensation of the Department of Fi- z HB 7159 nancial Services for the purpose of resolv- Lifeline Assistance Plan Participants ing disputes and complaints of employ- This bill exempts personal identifying informa- ees. tion of a participant in a telecommunications carrier’s Lifeline Assistance Plan under s. o Bank account numbers and debit, credit, 364.10, F.S., by the Public Service Commis- and charge card numbers are deleted sion. The information may be released to the from the exemption in the Florida applicable telecommunications carrier for pur- Insurance Code since the general poses directly connected with eligibility for, exemption, under s. 119.071 (5)(b), verification related to, or auditing of a Life- F. S., already exempts these identical line Assistance Plan. The exemption permits records from the Public Records Law. the release of confidential information for specific reasons. An officer or employee of a If approved by the Governor, these provi- telecommunications carrier who intentionally sions take effect October 1, 2007. discloses information in violation of the provision commits a misdemeanor of the second z SB 1950 degree. OGSR/Parental ID/Leaving Newborn Section 383.51, F.S., makes confidential

180 CARLTON FIELDS, P.A.

If approved by the Governor, these provi- Insurance Regulation (OIR) and work papers sions take effect upon becoming law. and other information received from another governmental entity or the National Associa- z HB 7169 tion of Insurance Commissioners (NAIC), for Exemptions/Workers' Compensation use by the DFS or the OIR in performance of The bill creates an exemption for certain its examination or investigation duties. records and portions of meetings of the Florida Workers’ Compensation Joint Under- The bill retains the exemption; however, it writing Association, Inc. (JUA), the insurer of narrows it by defining the term “work pa- last resort for employers who are unable to pers” to mean records of the procedures, secure workers’ compensation insurance cov- tests, information and conclusions reached in erage in the voluntary market. The bill makes an examination or investigation performed. confidential and exempt underwriting files, The term also includes planning documen- claims files until termination of litigation and tation, work programs, analyses, memo- settlement, audit records, certain proprie- randa, letters of confirmation and repre- tary information, medical records, records sentation, abstracts of company documents, relative to an employee’s participation in an schedules or commentaries prepared or ob- employee assistance program, certain infor- tained in the course of such examination or mation related to negotiations, reports re- investigation. garding fraud until the investigation is closed or ceases to be active, and payroll and client The bill further narrows the exemption by pro- lists of employee leasing companies obtained viding that after an examination report is from the Department of Revenue. The bill also filed or an investigation is completed or ceases makes confidential and exempt certain re- to be active, portions of the work papers may cords prepared by an attorney retained by remain confidential and exempt if disclosure the association to protect or represent the in- would: terests of the association. Exceptions are provided. The bill also makes exempt that portion o Jeopardize the integrity of another active of a meeting at which exempt records are investigation; discussed and the minutes of that portion of o Impair the safety and financial soundness such meetings. The exemption is subject to of the licensee, affiliated party or in- future review and repeal under the Open sured; Government Sunset Review Act in 2012. o Reveal personal financial, medical, or If approved by the Governor, these provi- health information; sions take effect July 1, 2007. o Reveal the identity of a confidential z HB 7187 source; OGSR/Work Papers/DFS or OIR This bill is the result of an Open Government o Defame or cause unwarranted damage to Sunset Review of s. 624.31 9(3)(b), F. S. the good name or reputation of an indi- which makes confidential and exempt from vidual or jeopardize the safety of an in- the public record requirements work papers dividual; and other information held by the Department of Financial Services (DFS) or the Office of

181 2007 LEGISLATIVE REPORT

card numbers. In addition, the bill transfers o Reveal investigation techniques or pro- to a new section of law those public records cedures; or exemptions related to court records and offi- o Reveal confidential and exempt informa- cial records, and extends the period of time tion received from another governmental that redaction must be requested in court and entity or the National Association of In- official records. surance Commissioners with respect to the If approved by the Governor, these provi- sharing of such information. sions take effect October 1, 2007. If approved by the Governor, these provi- z HB 7201 sions take effect October 1, 2007. Economic Development Agencies z HB 7193 This bill combines the two public records ex- U.S. Census Bureau/ emptions relating to the promotion and ad- Address Information ministration of economic development by state The bill creates a public records exemption and local governments (ss. 288.075 and for U.S. Census Bureau address information 288.1067, F.S.) into one provision. In addi- held by an agency pursuant to the Local Up- tion, it expands the exemption to require date of Census Addresses Program (LUCA that: program). Confidential and exempt address o “Proprietary business information” be pro- information may be released to another tected indefinitely or until it is otherwise agency or governmental entity in the further- publicly available or no longer treated ance of its duties and responsibilities under by the proprietor as confidential; the LUCA program. o “Trade secrets” be held confidential and The bill also authorizes agency access to any exempt indefinitely, rather than for a pe- other confidential or exempt information held riod of ten years; and by another agency if access is necessary for the receiving agency to perform its duties and o Business’ federal employment identifica- responsibilities under the LUCA program. tion numbers, unemployment compensation account numbers, and Florida The bill provides for future review and repeal sales tax registration numbers be held of the exemption and provides a statement of confidential indefinitely, rather than only public necessity. for the time period in which the business If approved by the Governor, these provisions is participating in an incentive program. take effect upon becoming law. This bill amends sections 288.075 and re- z HB 7197 peals s. 288.1067 of the Florida Statutes. OGSR/Social Security & Financial If approved by the Governor, these provi- Account Numbers sions take effect July 1, 2007. The bill reenacts the general public records exemption for social security numbers and bank account, debit, charge, and credit card numbers, held by an agency. The bill also repeals a duplicative exemption for credit

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Index

INDEX

HOUSE BILLS 851 ...... 56 853 ...... 177 1-A ...... 121 919 ...... 57 9 ...... 3 921 ...... 13 25 ...... 153 967 ...... 39 55 ...... 154 985 ...... 80 63 ...... 175 989 ...... 164 77 ...... 154 1007 ...... 108 83 ...... 3 1039 ...... 84 97 ...... 103 1047 ...... 14 99 ...... 47 1051 ...... 15 111 ...... 131 1155 ...... 111 123 ...... 155 1161 ...... 40 131 ...... 175 1177 ...... 15 143 ...... 156 1185 ...... 16 197 ...... 71 1199 ...... 16 211 ...... 6 1277 ...... 84 259 ...... 72 1283 ...... 17 275 ...... 48 1285 ...... 17 311 ...... 157 1301 ...... 42 339 ...... 158 1305 ...... 57 359 ...... 132 1309 ...... 166 405 ...... 75 1325 ...... 18 409 ...... 159 1375 ...... 85 411 ...... 133 1381 ...... 137 431 ...... 49 1427 ...... 59 449 ...... 159 1441 ...... 167 455 ...... 104 1489 ...... 19 461 ...... 37 1491 ...... 89 463 ...... 176 1549 ...... 138 511 ...... 38 7031 ...... 145 517 ...... 134 7057 ...... 146 529 ...... 9 7065 ...... 116 537 ...... 49 7087 ...... 149 543 ...... 104 7107 ...... 171 549 ...... 76 7111 ...... 171 699 ...... 55 7123 ...... 95 707 ...... 55 7127 ...... 180 721 ...... 11 7159 ...... 180 743 ...... 161 7165 ...... 116 803 ...... 55 7167 ...... 66 815 ...... 11 7169 ...... 181

185 2007 LEGISLATIVE REPORT

7173 ...... 66 746 ...... 135 7181 ...... 67 752 ...... 11 7183 ...... 68 770 ...... 107 7187 ...... 181 816 ...... 176 7193 ...... 182 830 ...... 177 7197 ...... 182 886 ...... 178 7201 ...... 182 900 ...... 56 7203 ...... 97 902 ...... 78 7205 ...... 33 920 ...... 12 978 ...... 162 SENATE BILLS 988 ...... 163 992 ...... 108 2 ...... 153 1004 ...... 164 90 ...... 5 1014 ...... 13 108 ...... 5 1026 ...... 14 122 ...... 155 1030 ...... 165 124 ...... 47 1034 ...... 178 134 ...... 5 1060 ...... 39 146 ...... 157 1088 ...... 165 166 ...... 71 1100 ...... 136 184 ...... 157 1116 ...... 109 246 ...... 103 1178 ...... 16 248 ...... 104 1206 ...... 136 252 ...... 6 1226 ...... 40 282 ...... 7 1232 ...... 41 314 ...... 72 1270 ...... 42 392 ...... 73 1372 ...... 58 400 ...... 74 1452 ...... 178 404 ...... 7 1456 ...... 19 412 ...... 37 1472 ...... 89 426 ...... 8 1508 ...... 112 448 ...... 159 1510 ...... 178 450 ...... 37 1604 ...... 167 500 ...... 9 1624 ...... 138 506 ...... 75 1638 ...... 59 562 ...... 134 1644 ...... 168 590 ...... 105 1700 ...... 112 606 ...... 77 1748 ...... 139 624 ...... 160 1758 ...... 112 640 ...... 11 1760 ...... 179 650 ...... 105 1770 ...... 169 666 ...... 106 1818 ...... 19 668 ...... 78 1822 ...... 20 672 ...... 135 1824 ...... 91 682 ...... 107 1844 ...... 92

186 CARLTON FIELDS, P.A.

1848 ...... 179 1852 ...... 179 1894 ...... 139 1916 ...... 113 1920 ...... 60 1950 ...... 180 1952 ...... 20 1972 ...... 93 1974 ...... 60 2038 ...... 94 2052 ...... 94 2114 ...... 113 2118 ...... 21 2142 ...... 23 2224 ...... 26 2234 ...... 26 2260 ...... 114 2312 ...... 169 2482 ...... 28 2484 ...... 29 2498 ...... 141 2634 ...... 115 2766 ...... 61 2800 ...... 61 2802 ...... 62 2836 ...... 30 2858 ...... 115 2866 ...... 170

187