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Feb. 4, 2022 | Legislative Reporter The fourth week of the 2022 Legislative Session ended this week and bills are moving through the committee process.

To see the status of the bills being tracked by APA Florida, click here. If you would like any bills added to this report, please contact Alex Magee at fapa@floridaplanning.org. You can also view APA Florida’s legislative priorities here.

The following bills of interest had action this week.

Note: These summaries are based on a review of the bill language and legislative staff analysis. You are encouraged to read the actual bill language of bills that interest you.

Growth Management

Business Damages Caused by Local Governments: The House Local Administration & Veterans Subcommittee amended CS/HB 569 (Rep. McClure) to be identical to CS/SB 620 E1 passed by the Senate on Jan. 27. CS/CS/HB 569 now moves to the House Judiciary Committee, its final committee of reference.

The bill, now cited as the Local Business Protection Act, creates s.70.91 F.S. to provide a mechanism for a Florida business owner to recover business damages related to government action. The bill applies to county and municipal ordinances or charter provisions enacted or amended on or after the effective date, which is identified as upon becoming law.

The bill now states that a private, for-profit business may claim business damages from a county or municipality if: 1. the county or municipality enacts or amends an ordinance or charter that has or will cause a reduction of at least 15 percent of the business’ profit as applied on a per location basis of a business operated with the jurisdiction; and 2. the business has engaged in lawful business in the jurisdiction for the 3 years preceding the enactment of or amendment to the ordinance or charter.

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The bill states that damages may not exceed the present value of the business’s future lost profits for the lesser of 7 years or the number of years the business had been in operation in the jurisdiction before the ordinance or charter provision was enacted.

The bill provides that a county or municipality is not liable for business damages caused by: 1. an ordinance or a charter provision that is required to comply with, or is expressly authorized by, state or federal law; 2. emergency ordinances, declarations, or orders adopted by a county or municipality under ss.252.31-252.60, the State Emergency Management Act; 3. a temporary emergency ordinance enacted pursuant to s.125.66 or s.166.041 that remains in effect for no more than 90 days; 4. an ordinance or charter provision enacted to implement: a. part II of chapter 163, relating to growth policy, county and municipal planning, and land development regulation, including zoning, development orders, and development permits; b. section 553.73, relating to the Florida Building Code; c. section 633.202, relating to the Florida Fire Prevention Code; 5. an ordinance or charter provision required to implement a contract or agreement, including, but not limited to, any federal, state, local, or private grant, or other financial assistance accepted by a county or municipal government; 6. an ordinance or charter provision relating to the issuance or refinancing of debt; or 7. an ordinance or charter provision relating to the adoption of a budget or budget amendment, including revenue sources necessary to fund the budget; 8. an ordinance or charter provision relating to procurement; or 9. an ordinance or charter provision intended to promote, enable, or facilitate economic competition.

The bill provides that s.70.91 F.S. does not apply to a business that may claim business damages in an eminent domain proceeding under chapter 73 and may not be construed to authorize double recoveries.

The bill also provides that an amendment to an ordinance or charter provision after the effective date of the bill gives rise to a claim under s.70.91 F.S. only to the extent that the application of the amendatory language is the cause of the claimed impact on a business apart from the ordinance or charter provision being amended.

At least 180 days before filing an action and within 180 days after the effective date of the relevant ordinance or charter provision, the business must present a good faith written offer, with specified documentation, to settle the business’ claim of business damages to the head of the county or municipality. Within 120 days of receipt of the offer and accompanying business records, the county or municipality must accept, reject, or make a counteroffer, which may include an offer to grant a waiver to the application of the ordinance or charter provision.

If the claim is not settled and a business files an action for business damages, it must be filed within one year of the effective date of the relevant ordinance, ordinance amendment or charter provision. In an action for business damages, the court may award reasonable attorney fees and costs to the prevailing party. Note that previously proposed language dealing with how attorney fees are calculated has been deleted.

The bill provides that there is no liability if, within the 120-day period, the county or municipality: a. repeals the ordinance or charter provision that gave rise to the business’ claim; b. amends the ordinance or charter provision that gave rise to the business’ claim in a manner that returns the ordinance or charter provision to its form in existence before the business’ claim arose or in a manner that avoids causing a reduction of at least 15 percent of the business’s profit as applied on a per location basis within the jurisdiction; c. publishes notice of its intent to repeal or amend the ordinance that gave rise to the business’ claim and, within 30 days after publication of the notice, amends the ordinance in a manner that returns the ordinance to its form in existence before the business’ claim arose or in a manner that avoids causing a reduction of at least 15 Feb. 4, 2022 | Legislative Reporter

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percent of the business’s profit as applied on a per location basis within the jurisdiction, or repeals the ordinance; d. grants a waiver of the ordinance or charter provision to a business submitting a claim for business damages; or e. with respect to a charter provision, the county provides notice of its intent to amend or repeal the charter provision that is the basis of the business damage claim and the charter provision is amended or repealed by the voters at an election or special election that occurs within 90 days after publication of the notice.

Residential Development Projects for Affordable Housing: CS/CS/HB 981 (Rep. Payne), reflecting changes by the House State Affairs Committee, amends ss.125.01055(6) and ss.166.04151(6) F.S., dealing with affordable housing. The amended bill provides that, for parcels zoned for commercial or industrial use, a local government may approve any residential development project, including a mixed-use residential development project, so long as a portion of the project is for housing that is affordable and the sponsor of the project agrees not to apply for or receive funding under s.420.5087(State Apartment Incentive Loan Program.) The House State Affairs Committee amended the bill to require that at least 10 percent of the units included in these projects must be for affordable housing.

The bill provides that these provisions are self-executing and do not require the governing body to adopt an ordinance or regulation before using this approval process.

The House State Affairs Committee was the last committee of reference for this bill.

CS/CS/SB 962 was similarly amended by the Senate Rules Committee, its last committee of reference, on Jan. 3.

School Concurrency: CS/CS/SB 706 (Sen. Perry) amends s.163.3180 F.S. to state that school concurrency is deemed satisfied when the developer tenders a written legally binding commitment to provide mitigation proportionate to the demand for public school facilities to be created by actual development of the property.

Currently the law requires the developer to execute said commitment. Previously proposed bill language provided that school concurrency is satisfied it the developer in good faith offers to execute said commitment.

Additionally, the statue currently requires that any proportionate-share mitigation must be directed toward school capacity improvement identified in the five-year school board educational facilities plan that satisfies the demands created by the development. This bill adds a provision that if this is not done, the mitigation must be set aside and not spent until such an improvement has been identified.

CS/CS/SB 706 was reported favorably by the Senate Education Committee on Feb. 1 and moves to the Senate Rules Committee, its final committee of reference. CS/HB 851 (Rep. McClain), a similar bill, additionally provides that a local government must issue a final decision on the developer’s tendered legally binding commitment within 60 days after the date of receipt; failure to do so would result in the commitment being deemed approved. CS/HB 851 is in the House Education & Employment Committee, its second of three committees of reference.

Vacation Rentals: CS/SB 512 (Sen. Burgess) would preempt the regulation of advertising platforms used for vacation rentals to the state, and outlines requirements that must be complied with. The bill also preempts the licensing of public lodging facilities and public food service establishments to the state.

The bill additionally amends s.509.032(7) (b)1 F.S. to allow local laws, ordinances or regulations adopted on or before June 1, 2011, to be amended to be less restrictive or to require the registration of vacation rentals with a local vacation registration program.

Under the bill, a local government may adopt a vacation rental registration program. The registration fee may not exceed $50 for an individual or $100 for a collective vacation rental registration. A local government may impose a fine for failure to register a vacation rental. The bill establishes limits for a local government registration program to Feb. 4, 2022 | Legislative Reporter

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include requiring a vacation rental owner to: provide identifying information about owners, agents and the property, obtain a state license as a transient public lodging establishment within 60 days of local registration, obtain any required tax registrations, pay all recorded municipal or county code liens, update required information on a continuing basis to keep it current, and designate a responsible person who is available 24 hours a day, seven days a week to respond to complaints. A local government may also require vacation rentals to comply with parking and garbage requirements so long as those standards are not imposed solely on vacation rentals.

Additionally, the bill requires local governments to review for completeness and accept the registration or issue a written notice identifying areas of deficiency within 15 days of receipt of an application. When a local government denies an application for registration of a vacation rental, the local government must give written notice to the applicant. The notice must specify with particularity the factual reasons for the denial and include a citation to the applicable portions of an ordinance, a rule, a statute, or other legal authority for the denial of the registration. A local government may not deny any applicant from reapplying if the applicant cures the identified deficiencies. If the local government fails to accept or deny the registration within the timeframes, the application is deemed accepted.

The bill permits a local government to terminate or refuse to issue or renew a local registration: for violations of local registration requirements or a local law, ordinance or regulation that does not apply solely to vacation rentals; or if the premises and its owner are the subject of a final order or judgement lawfully directing the termination of the premises’ use as a vacation rental.

Furthermore, the bill provides that its application does not supersede any current or future declaration or declaration of condominium adopted pursuant to Chapter 718, Florida Statutes, cooperative document adopted pursuant to Chapter 719, Florida Statutes, or declaration or declaration of covenant adopted pursuant to Chapter 720, Florida Statutes.

CS/SB 512 was reported favorably by the Senate Community Affairs Committee on Feb. 2 and moves to the Senate Rules Committee, its final committee of reference. CS/HB 325 (Rep. Fischer), a similar bill, is in the House Ways and Means Committee, its second of three committees of reference.

Broadband Infrastructure: HB 1543 (Rep. Tomkow) creates the Broadband Pole Replacement Program, to be administered by the Office of Broadband. The program will reimburse fixed, wireline broadband service providers for their costs incurred for the removal and replacement of existing utility poles in areas of Florida that are unserved by broadband Internet service. Reimbursements under the program are limited to 50 percent of the broadband Internet service provider’s eligible pole replacement cost or $5,000, whichever is less, in addition to their administrative costs related to the preparation and submission of the application for reimbursement.

The bill directs the Secretary of DEO to apply for $100 million in federal funding from the Coronavirus Capital Projects Fund and directs any such funds received to be placed into the Broadband Pole Replacement Trust Fund, which is created by linked bill, HB 1545 (Rep. Tomkow). For the 2022-23 fiscal year, the bill appropriates $400 million in nonrecurring funds from the General Revenue Fund to DEO for the purpose of administering the Broadband Opportunity Program created in 2021.

HB 1543 was reported favorably by the House Tourism, Infrastructure & Energy Subcommittee on Feb. 3 and moves to the House Infrastructure & Tourism Appropriations Subcommittee, its second of three committees of reference. A similar bill, CS/SB 1800 (Sen. Boyd), is in the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development, its second of three committees of reference.

Florida Main Street Program and Historic Preservation Tax Credits: CS/SB 1310 (Sen. Rodriguez) creates the Main Street Historic Tourism and Revitalization Act, which provides a tax credit against corporate income taxes and insurance premium taxes for qualified expenses incurred in the rehabilitation of a certified historic structure. The bill applies to taxable years beginning and for qualified expenses incurred on or after Jan. 1, 2023.The bill provides that a Feb. 4, 2022 | Legislative Reporter

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certified historic structure means a building and its structural components as defined in 36 C.F.R. s.67.2 which is of a character subject to the allowance for depreciation provided in s.167 of the Internal Revenue Code of 1986, as amended, and that is: 1. individually listed in the National Register of Historic Places; or 2. located within a registered historic district and certified by the United States Secretary of the Interior as being of historic significance to the registered historic district as set forth in 36 C.F.R. s.67.2.

The tax credit may not exceed 20 percent of qualified expenses incurred in the rehabilitation of a certified historic structure that has been approved by the National Park Service to receive the federal historic rehabilitation tax credit or 30 percent of the total qualified expenses incurred in the rehabilitation of a certified historic structure that has been approved by the National Park Service to receive the federal historic rehabilitation tax credit that is located within a local program area of an Accredited Main Street Program. Any unused amount may be carried forward for a period of up to five taxable years. Tax credits may also be sold or transferred. There is no limit on the total number of transactions for the sale or transfer of all or part of a tax credit. However, qualified expenses may only be counted once in determining the amount of an available tax credit, and no more than one taxpayer may claim a tax credit for the same qualified expenses.

Local Preemptions

Home Kitchen Operations: CS/HB 707 (Rep. Learned), reflecting amendments by the House Regulatory Reform Subcommittee on Feb. 3, would preempt the regulation of home kitchen operations to the state. Under the bill, a local law, ordinance, or regulation may not prohibit a home kitchen operation or regulate the preparation, processing, storage, or sale of home kitchen food products; however, a home kitchen operation must comply with the conditions for the operation of a home-based business under s.559.955 F.S. The revised bill creates s.500.82 F.S. to cover home kitchen operations. The bill defines this operation to be a natural person or an entity that stores, handles, prepares, and packages home kitchen products at the residence of the natural person or at the residence of a natural person who has an ownership interest in the entity and sells such products in accordance with s.500.80 F.S. A home kitchen operation is not a public food service establishment, a catering operation, or a cottage food operation. The bill also provides that a home kitchen product means food that is stored, handled prepared and packaged by a home kitchen operation that is not raw milk, raw milk products, raw oysters or raw shellfish.

Under the bill, a home kitchen operation is exempt from the permitting requirements of s.500.12 F.S. (state food permits) if the home kitchen operation complies with s.500.82 F.S. and has: • annual gross sales of home kitchen food products that do not exceed $250,000; • limits preparation and service of home kitchen food products to no more than 10 individual meals/day or the approximate equivalent of meal components when sold separately; • prepares, cooks, and serves home kitchen food products on the same calendar day; and • processes home kitchen food products in compliance with state and federal regulations and s.500.80.

The bill also: • authorizes sales via the Internet or in person, and delivery in person directly to the consumer, to a specific event venue, or to the consumer by the home kitchen operation or a third-party delivery service; • prohibits sales and deliveries of home kitchen products to wholesalers or retailers; • specifies labeling requirements; • requires specific training and protocols home kitchen operations, owners, and employees; and • requires DACS to investigate complaints and makes refusal to permit entry and inspection grounds for disciplinary action.

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CS/HB 707 now moves to the House Agriculture & Natural Resources Appropriations Subcommittee, its second of three committees of reference. A similar bill, SB 1158 (Sen. Jones) is scheduled to be heard in the Senate Regulated Industries Committee, its first committee of reference, on Feb. 8.

Transportation

Transportation Projects: CS/CS/SB 398 (Sen Hooper), as amended by the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development on Jan. 2, revises the current requirement for an annual minimum commitment by the Florida Department of Transportation (FDOT) of at least 15 percent of revenues deposited into State Transportation Trust Fund (STTF) for specified public transportation projects, by imposing a maximum commitment of no more than 25 percent of such revenues, excluding state revenues used for matching federal grants, unless otherwise specified in the General Appropriations Act. The bill also clarifies the FDOT’s authority to engage in “progressive” design-build contracting as an innovative technique of highway and bridge design and construction. The bill, as amended by the subcommittee, revises s.337.025, F.S., dealing with innovative transportation projects, to provide that if the FDOT determines that it is in the best interests of the public, the department may combine the design and construction phases of a project into a single contract and select the design-build firm in the early stages of a project to ensure that the design-build firm is part of the collaboration and development of the design as part of a step-by-step progression through construction.

The bill states that such contract is referred to as a progressive design-build contract. For progressive design build contracts, the selection and award processes must include a two-phase process. For phase one, the FDOT shall competitively award the contract to a design-build firm based upon qualifications. For phase two, the design-build firm shall competitively bid construction trade subcontractor packages and, based upon these bids, negotiate with the FDOT a fixed firm price or guaranteed maximum price that meets the project budget and scope as advertised in the request for qualifications. Note this language was previously proposed to be amended into s.337.11 F.S., dealing with contracting authority of FDOT; the subcommittee amended the bill to move this language to s.337.025 F.S. The bill also exempts certain progressive design-build contracts from an existing cap on innovative contracts.

Additionally, the bill authorizes an applicant for an FDOT contractor certificate of qualification to submit, with a timely submitted application, a request to keep an existing certificate, with the current maximum capacity rating, in place until the expiration date. Further, the bill repeals a current provision of law providing temporary confidential and exempt status from public records requirements for a document that reveals the identity of a person who has requested or obtained a bid package, plan, or specifications pertaining to any project to be let by the FDOT. CS/CS/SB 398 now moves to the Senate Appropriations Committee, its final committee of reference. CS/HB 157 (Rep. Andrade), a similar bill, is in the House Commerce Committee, its final committee of reference.

Resiliency and Sea-Level Rise

Statewide Flooding and Sea Level Rise Resilience: CS/SB 1940 (Sen. Brodeur), as amended by the Senate Environment and Natural Resources Committee on Jan. 31, establishes the Statewide Office of Resilience within the Executive Office of the Governor. The bill provides that the office must be headed by a Chief Resilience Officer, who is appointed by and serves at the pleasure of the governor.

The bill requires the Florida Department of Transportation (FDOT) to develop a resilience action plan for the State Highway System based on current conditions and forecasted future events. The goals of the resilience action plan are to do all of the following: • recommend strategies to enhance infrastructure and the operational resilience of the State Highway System, which may be incorporated into the transportation asset management plan; • recommend design changes for retrofitting existing and constructing new state highway facilities; and • enhance partnerships for collaboration to address multijurisdictional resilience needs.

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It also requires DOT to submit the action plan to the governor and the legislature by June 20, 2023, and a status report every third year on June 30 thereafter.

The bill makes various revisions to s.380.093, F.S., relating to statewide resiliency funding and planning, including: • authorizing the use of Resilient Florida Grant Program funds to fund preconstruction activities for projects to be submitted for inclusion in the Statewide Flooding and Sea-Level Rise Resilience Plan in municipalities with a population of 10,000 or fewer and counties with a population of 50,000 or fewer, but not for projects that adapt critical assets to flooding and sea-level rise; • pushing back by one year (to 2023 and 2024, respectively) the dates by which the Comprehensive Statewide Flood Vulnerability and Sea-Level Rise Data Set and the assessment must be completed; • expanding the list of entities that may submit a list of proposed projects to DEP that address risks of flooding or sea-level rise identified in the vulnerability assessments funded by the Resilient Florida Grant Program, to include special districts as defined in state law, if they are responsible for the operation and maintenance of an airport or a seaport facility; • expanding the list of entities that may submit a list of proposed projects to DEP that mitigate the risks of flooding or sea-level rise on water supplies or water resources to include drainage districts, erosion control districts, and regional water supply authorities; and • revising the $100 million cap on funding proposed for each year of the plan to a minimum threshold of $100 million.

The bill requires the Florida Flood Hub for Applied Research and Innovation to provide certain data to counties and municipalities for vulnerability assessments. Beginning Jan. 1, 2023, the bill also directs surveyors and mappers to submit digital copies of the elevation certificates they complete to the Division of Emergency Management (DEM) as outlined on DEM’s website.

CS/SB1940 now moves to the Senate Appropriations Subcommittee on Agriculture, Environment, and General Government, its second of three committees of reference.

Saltwater Intrusion Vulnerability Assessments: CS/SB 1238 (Sen. Polsky) amends the Resilient Florida Grant Program to authorize the Department of Environmental Protection (DEP) to provide grants to coastal counties to fund the costs of saltwater intrusion vulnerability assessments.

It provides that, beginning July 1, 2023, DEP may provide grants to coastal counties to conduct assessments analyzing the effects of saltwater intrusion on their water supplies and preparedness to respond to such threats, including water utility infrastructure, wellfield protection, and freshwater supply management. Each assessment must include certain information specified in the bill.

The bill requires DEP to use the information contained within the assessment to update its Comprehensive Statewide Flood Vulnerability and Sea-Level Rise Data Set. DEP must also make any appropriate information from the assessment available to the public on its website.

The bill also requires DEP to provide 50 percent cost-share funding, up to $250,000, for each grant awarded. A county with a population of 50,000 or fewer is not required to contribute to the cost share.

CS/SB 1238 was reported favorably by the Senate Environment and Resources Committee on Jan. 31 and moves to the Governmental Oversight and Accountability Committee, the second of three committees of reference. HB 1019 (Rep. Duggan), a similar bill, is in the Environment, Agriculture & Flooding Subcommittee, its first of three committees of reference.

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Environment and Natural Resources

Inventories of Critical Wetlands: HB 761 (Rep. Truenow) was reported favorably by its final committee of reference on Feb.1. The bill requires each water management district (WMD), as part of its district water management plan and in cooperation with local governments, to develop a list of critical wetlands to be acquired using funds from the Land Acquisition Trust Fund. The WMD must consider the following criteria in designating a wetland for inclusion on the list: • the ecological value of the wetland as determined by the physical and biological components of the environmental system; • the effect of the wetland on water quality and flood mitigation; • the ecosystem restoration value of the wetland; and • the inherent susceptibility of the wetland to development due to its geographical locations or natural aesthetics.

HB 761 is now on the House Calendar on Second Reading. A similar bill, CS/SB 882 (Sen. Brodeur) was reported favorably by the Senate Community Affairs Committee on Jan. 2 and now moves to the Senate Rules Committee, its final committee of reference.

Floating Solar Facilities: SB 1338 (Sen. Diaz) would require that a floating solar facility be a permitted use in the appropriate land use categories in each local government’s comprehensive plan and that each local government amend its land development regulations to promote the expanded use of floating solar facilities. The bill defines these to mean a solar facility as defined in s.163.3205(2) F.S. which is located on a wastewater treatment pond, abandoned limerock mine, or other manmade water storage area.

The bill provides that a county may adopt an ordinance specifying buffer and landscaping requirements for floating solar facilities. The requirements may not exceed the requirements for similar uses involving the construction of other solar facilities that are permitted uses in agricultural land use categories and zoning districts. A floating solar facility may not be constructed in the Lake Belt Area or an Everglades Agricultural Area reservoir project if the local governments involved with the area or project determine that the floating solar facility will have a negative impact on that area or project. Also, the Office of Energy within the Department of Agriculture and Consumer Services shall develop and submit recommendations to the Legislature by Dec. 31, 2022, to provide a regulatory framework for private and public sector entities that implement floating solar facilities.

SB 1338 was reported favorably by the Senate Regulated Industries Committee on Feb. 1 and moves to the Senate Community Affairs Committee, its second of three committees of reference. HB 1411 (Rep. Avila), an identical bill, is in the House Local Administration & Veteran Affairs Subcommittee, its second of three committees of reference.

Constitutional Amendments

Limiting Subject of Constitutional Amendments Proposed by Citizen Initiative: HJR 1127 (Rep. Beltran) proposes an amendment to Section 3 of Article XI of the Florida Constitution to limit the scope of constitutional amendments that may be proposed through the citizen initiative process. Under this joint resolution, such proposals, except for proposals to limit the power of the government to raise revenue, would be limited to matters relating to procedural subjects or to the structure of the government or of the state constitution. If approved by three-fifths of the membership of each house of the legislature, the amendment will be placed on the 2022 general election ballot. If the amendment is placed on the ballot and approved by at least sixty percent of the voters, the amendment will be effective the first Tuesday after the first Monday in 2023.

HJR 1127 was reported favorably by the House Judiciary Committee, its final committee of reference, on Feb.1 and has been placed on the House Calendar on Second Reading. An identical joint resolution, SJR 1412 (Sen. Brodeur), is in the Senate Ethics and Elections Committee, its first committee of reference.

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News Articles

House skimps on Gov. DeSantis’ jobs fund, avoids gas tax cut in early budget proposal Gray Rohrer | Florida Politics | Feb. 2 Vacation rental preemption bill clears another Senate Committee Scott Powers | Florida Politics | Feb. 2 Committee bill would undo 2021 public notices deal Staff Reports | Florida Politics | Feb. 2

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