Jan. 7 Legislative Reporter

Jan. 7, 2022 | Legislative Reporter The 2022 Legislative Session will commence on Jan. 11 and is scheduled to end on March 11. Interim committee meetings have been underway since Sept. 20 and approximately 3,100 bills have been filed to date.

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 have been filed.

(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 Local Ordinances: SB 280 (Sen. Hutson) and HB 403 (Rep. Giallombardo) are identical bills that amend s.125.66 F.S. and s.166.041 F.S. to require cities and counties to prepare a business impact statement before adopting an ordinance; emergency ordinances are exempt. The business impact statement must include the following: 1. The public purpose served by the ordinance; 2. A statement of the reasonable connection between the public purpose and the expected effects of the ordinance; 3. The estimated direct and indirect economic effects of the ordinance on businesses within and outside the jurisdiction, including both adverse and beneficial effects and both direct and indirect effects; 4. An estimate of the number of businesses likely to be affected by the ordinance; 5. An analysis of the extent to which the ordinance is likely to deter or encourage the formation of new businesses within the jurisdiction; 6. An analysis of the extent to which the ordinance will impede the ability of businesses within the jurisdiction to compete with other businesses in Florida or other domestic markets; 7. The scientific basis for the ordinance, if applicable; 8. Alternatives considered by the municipality that would reduce the impact of the ordinance on businesses; and 9. Any additional information the governing body determines may be useful.

Jan. 7, 2022 | Legislative Reporter

APA FLORIDA

The bills also create s.125.675 F.S. and s.166.0411, F.S. to require a municipality or county to suspend enforcement of an ordinance that is the subject of a civil action, including any appeals, challenging the ordinance’s validity on grounds that it is preempted by the state constitution or state law, is arbitrary or unreasonable, or is otherwise prohibited by law. This requirement applies only if: • the action was filed within 20 days of the ordinance’s effective date; • suspension of the ordinance was requested in the complaint or petition; and • the municipality was served with a copy of the complaint or petition.

These two new sections do not apply to the following ordinances: emergency ordinances; ordinances adopted pursuant to Part II of Chapter 163 (comprehensive planning and land development regulations), ordinances implementing s.553.73 (Building Code), and ordinances implementing s.633.202 (Fire Code).

The court is required to give these cases priority over other pending cases and render a preliminary or final decision on the validity of the ordinance as expeditiously as possible. The court is also authorized to award attorney fees and costs pursuant to s.57.112 F.S. The bills specify factors a court must consider in determining whether an ordinance is arbitrary or unreasonable, including but not limited to: • the extent to which the ordinance protects public health, safety, welfare, and quality of life of residents; • the impact of the ordinance on the personal rights and privileges of residents; • the total economic impact of the ordinance; and • the business impact statement prepared by the municipality or county.

The bills also amend s.57.112 F.S. to authorize the award of reasonable attorney fees and costs and damages to a prevailing plaintiff in a civil action commenced after Oct. 1, 2022, in which the adoption or enforcement of an ordinance is alleged to be arbitrary or unreasonable, or prohibited by law other than by express preemption (i.e., is impliedly preempted or conflicts with state law). Ordinances adopted to implement Part II of Chapter 163 (comprehensive planning and land development regulation), section 553.73 (Building Code), or section 633.202 (Fire Code) are exempt from this provision.

HB 403 was reported favorably by the House Local Administration & Veterans Affairs Subcommittee on Dec. 1 and now moves to the House Civil Justice & Property Rights Subcommittee, its second of three committees of reference. SB 280 has been assigned to three Senate committees and is currently in the Senate Community Affairs Committee.

Local Government: SB 620 (Sen. Hutson) and HB 569 (Rep. McClure) are identical bills that create s.70.91 F.S. to provide that a business that has engaged in a lawful business in Florida for at least three years may claim business damages from a county or municipality if the county or municipality enacts or amends an ordinance or charter, on or after July 1, 2022, that will cause a reduction of at least 15 percent of the business’ revenue or profit. This does not apply to: 1. An ordinance or a charter provision that is required to comply with state or federal law; 2. Emergency ordinances, declarations, or orders adopted by a county or municipality under ss.252.31252.60, 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; or 4. An ordinance or a charter provision that increases economic freedom.

At least 180 days before filing an action and within 180 days of the effective date to the relevant ordinance or charter provision, the business must present a written offer to settle the business’ claim of business damages.

Within 120 days of receipt of the offer, the county or municipality must accept, reject, or make a counteroffer.

Failure to respond will be considered a counteroffer of zero dollars.

Jan. 7, 2022 | Legislative Reporter

APA FLORIDA

If the local government agrees on the business damages, the county or municipality must pay the business’ reasonable cost, including attorney fees and a reasonable accountant’s fee. If these costs cannot be agreed on, the business can file a complaint, within one year of the effective date of the relevant ordinance, ordinance amendment or charter provision, in circuit court to recover attorney fees and costs. The bill includes criteria for how attorney fees shall be calculated.

If an agreement on business damages cannot be reached and the business files an action, the business claiming the right to recover business damages must state in its complaint the nature and extent of those damages. At trial, a jury shall determine whether a business is entitled to business damages and the amount of damages, if any. However, the business may elect to have business damages determined by the court.

SB 620 was reported favorably by the Senate Judiciary Committee on Nov. 30 and is now in the Senate Rules Committee, its second of three committees of reference. HB 569 is in the House Civil Justice & Property Rights Subcommittee, its first of three committees of reference.

Local Government Land Development Actions: HB 739 (Rep Borreo) proposes several changes related to land development and land development regulations. It would do the following: • amend s.125.022 (1) and s.166.033(1) F.S. to state that once an applicant has responded to a local government’s letter requesting additional information on a development permit or development order application, the local government may only provide additional comments on the deficiencies that are directly related to the deficiencies that were identified during the first review period or that directly address the responses given by the applicant. The local government may also make additional comments as a result of new information submitted by the applicant; • amend s.553.792(1) F.S., related to building permit application, to provide that the local government may only request more information on the additional information provided to the local government by the applicant and may not make new comments on the original application. The bill also amends s.553.792(2) F.S. to make similar changes; • create ss.163.3202(7) F.S. that: o requires each local government to adopt residential infill development standards by Oct. 1, 2022, and requires these standards to be considered in local decision making; o requires that each local government amend its development regulations to include residential infill development as a zoning classification and must incorporate it as an appropriate land use classification under the local government comprehensive plan; o defines a “residential infill development” as an area consisting of a development or subdivision of land designated as such by a local government wherein the dimensional requirements of the land use district are relaxed and the local government review process is expedited; o identifies 12 guidelines that local government must use in developing the residential infill development standards; o requires each local government to adopt guidelines to be used by applicants seeking designations as residential infill development, including procedures for the review of applications, and identifies things that need to be considered by the applicant; o provides that a local government may not approve an application as a residential infill development if it contains many deficiencies. Where deficiencies exist, the applicant bears the burden to prove the benefits of the residential infill development outweigh the deficiencies in services; o provides that a local government may not deny an applicant's request for designation as a residential infill development if the applicant has complied with the general intent and development standards of this subsection; o allows applicants to appeal a denial of an application to a local government planning commission; the appeal shall follow the commission’s rule and regulations.

Jan. 7, 2022 | Legislative Reporter

APA FLORIDA

HB 739 is in the House Local Administration & Veterans Affairs Subcommittee, its first of three committees of reference. SB 1248 (Sen. Gruters), a similar bill, is in the Senate Community Affairs Committee, its first of three committees of reference.

Mixed-use Residential Development Projects for Affordable Housing: SB 962 (Sen. Bradley) would amend ss.125.01055(6) and ss.166.04151(6) F.S., dealing with affordable housing. These sections currently allow a county and municipality respectively to approve the development of affordable housing on any parcel zoned for residential or commercial use. The bill would provide that an approval may include a mixed-use residential development project if 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 F.S. The provisions of these subsections are selfexecuting and do not require the governing body to adopt an ordinance or a regulation before using the approval process in these subsections.

SB 962 is in the Senate Community Affairs Committee, its first of three committees of reference. A similar bill, HB 981 (Rep. Payne) was filed on December 20 but has not yet been referred to committees.

Vacation Rentals: HB 325 (Rep. Fischer) and SB 512 (Sen. Burgess) are identical bills that preempt the regulation of advertising platforms used for vacation rentals to the state. The bills also preempt the licensing of public lodging facilities and public food service establishments to the state.

The bills amend 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. The bills identify what information may be required under the local program, the fees that may be charged, and the process for reviewing applications for local registration.

HB 325 is in the House Regulatory Reform Subcommittee, its first of three committees of reference. SB 512 is scheduled to be heard on Jan. 11 in the Senate Regulated Industries Committee, its first of three committees of reference.

Impact Fee Credit: SB 1030 (Sen. Taddeo) and HB 681 (Rep. Rodriguez) are identical bills that would revise the area within which impact fee credits are assignable and transferable. The bills would amend s.163.31801(10) F.S. in part to state that credits can be assigned or transferred to any other development or parcel that is within an impact fee zone in the same county as opposed to existing language that requires it is in an adjoining impact fee zone.

SB 1030 is in the Senate Community Affairs Committee, its first of three committees of reference. HB 681 is in the House Local Administration & Veterans Affairs Subcommittee, its first of three committees of reference.

School Concurrency: SB 706 (Sen. Perry) and HB 851 (Rep. McClain) are identical bills that amend s.163.3180 F.S. relative to school concurrency. The bills amend existing language to require local governments who have adopted school concurrency to apply it on a districtwide basis. Currently the law only encourages local governments to do so. The bills also amend existing language to provide that school concurrency is satisfied if the developer in good faith offers to execute a 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 statute requires that the developer execute this agreement to satisfy school concurrency. Lastly, the statue currently requires that any proportionate-share mitigation must be directed toward school capacity improvement identified in the 5-year school board educational facilities plan that satisfies the demands created by the development. The bills add a provision that if this is not done, the mitigation must be set aside and not spent until such an improvement has been identified.

SB 706 is in the Senate Community Affairs Committee, its first of three committees of reference; HB 851 is in the House Local Administration & Veterans Affairs Subcommittee, its first of three committees of reference.

Jan. 7, 2022 | Legislative Reporter

APA FLORIDA

Floating Solar Facilities: SB 1338 (Sen. Diaz) would require that a floating solar facility be a permitted use in the appropriate land use category 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 man-made 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 filed on Dec. 21 but has not been referred to committees yet. A House companion bill has not yet been filed.

Local Preemptions Preemption of the Regulation of Vacation Rentals: HB 6033 (Rep. Grieco) would repeal provisions in ss.509.032(7), F.S. that preempt regulation of vacation rentals to the state. The bill is in the House Regulatory Reform Subcommittee, its first of three committees of reference. A Senate companion bill has not yet been filed.

Preemption of Tree Pruning, Trimming, and Removal: SB 316 (Sen. Stewart) and HB 6025 (Rep. Eskamani) would repeal s.163.045 F.S., adopted in 2019, that, among other things, prohibits local governments from requiring a permit, application, notice, fee, approval, or mitigation for the pruning, trimming, or removal of a dangerous tree on residential property upon documentation by a certified arborist or licensed landscape architect, and prohibits local governments from requiring a property owner to replant a tree.

SB 316 is in the Senate Community Affairs Committee, its first of three committees of reference and HB 6025 is in the House Local Administration & Veterans Affairs Subcommittee, its first of three committees of reference.

Preemption of Recyclable and Polystyrene Materials: SB 320 (Sen. Stewart) and HB 6063 (Rep. Grieco) would repeal s.500.90 F.S. adopted in 2016 which preempted the regulation of the use or sale of polystyrene products by entities regulated by Chapter 500, F.S., the Florida Food and Safety Act, to the Department of Agriculture and Consumer Services. The bills would also repeal language in s.403.7033 F.S. that states that until the legislature adopts the recommendations of the Department of Environmental Protection included in its update of a 2010 report on retail bags, a local government, local governmental agency, or state governmental agency may not enact any rule, regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of such auxiliary containers, wrappings, or disposable plastic bags.

SB 320 is in the Senate Environment and Natural Resources Committee, its first of three committees of reference. HB 6063 is in the House Regulatory Reform Subcommittee, its first of three committees of reference.

Home Kitchen Operations: HB 707 (Rep. Learned) and SB 1158 (Sen. Jones) are identical bills that would preempt the regulation of home kitchen operations to the state. Under the bills, 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. Similar to the preemption of cottage food operations passed last year in HB 663, the bills would amend s.500.80 F.S. to include home kitchen operations. The bills define this operation to be a natural person or an entity that Jan. 7, 2022 | Legislative Reporter

APA FLORIDA

stores, handles, prepares, and packages food 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 as defined in s.509.013(5) F.S. The bills also provide a definition of a home kitchen food product.

Under these bills, 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.500.80 F.S. and has annual gross sales of home kitchen food products that do not exceed $250,000; • may only sell or provide home kitchen food products directly to consumers and may not sell or provide home kitchen food products to any food reseller; • may sell home kitchen food products to consumers in person or remotely by telephone, email, or website, including through a third-party website or mobile application. Home kitchen food products may be delivered to consumers by the home kitchen operation, by an employee or agent of the home kitchen operation, or by a third-party delivery service; • must provide specific information to consumers about the product.

HB 707 is in the House Regulatory Reform Subcommittee, its first of three committees of reference. SB 1158 is in the Senate Regulated Industries Committee, its first of three committees of reference.

Transportation Transportation Projects: CS/SB 398 (Sen. Hooper), reported favorably as amended by the Senate Transportation Committee on Dec. 3, 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, removes certain progressive design-build contracts from an existing cap on innovative contracts, and removes a limitation on design-build contracting to certain types of projects.

The bill now moves to the Senate Appropriations Subcommittee on Transportation, Tourism and Economic Development, its second of three committees of reference.

HB 157 (Rep. Andrade), which also includes similar revisions regarding the annual minimum commitment for public transportation projects, is in the House Tourism, Infrastructure & Energy Subcommittee, its first of three committees of reference.

Environment and Natural Resources Well Stimulation: SB 208 (Sen. Farmer, Jr.) is cited as the “Stop Fracking Act”. The bill would prohibit extreme well stimulation and prohibit the Florida Department of Environmental Protection from issuing permits that authorize this activity on or after July 1, 2022. The bill has been referred to three committees of reference and is before the Senate Environment and Natural Resources Committee. A House companion bill has not yet been filed.

Constitutional Amendments Supermajority Vote for Legislative Preemption: SJR 152 (Sen. Farmer, Jr.) proposes amendments to the State Constitution to require a supermajority vote of each house to approve a general law preempting a subject of legislation to the state. The proposed effective date would be Jan. 1. 2024. The bill has been referred to three committees of reference and is currently in the Senate Community Affairs committee.

Requiring Broader Public Support for Constitutional Amendments or Revisions: HJR 177 (Rep. Roth) and SJR 950 (Sen. Rodriguez) are joint resolutions proposing an amendment to State Constitution to increase percentage of elector votes required to approve amendment to or revision of State Constitution from 60 percent Jan. 7, 2022 | Legislative Reporter

APA FLORIDA

to 66.67 percent, except repeal of amendment or revision need only be approved by same percentage of elector votes as was required at time of passage of such amendment or revision. HJR 177 has been referred to two committees of reference and is currently in the House Public Integrity & Elections Committee. SJR 950 has been referred to three committees of reference and is now in the Senate Ethics and Elections Committee.

Revisions or Amendments of the State Constitution by Citizen Initiative: SJR 1412 (Sen. Brodeur) and HJR 1127 (Rep. Beltran) are identical joint resolutions that propose an amendment to the State Constitution to limit revisions or amendments of the constitution by citizen initiative to be limited to matters relating to procedural subjects or the structure of the government or constitution. Both bills were filed on Jan. 3 and have not been referred to committees yet.

Use of School District Revenues: SJR 1340 (Sen. Roach) and HB 1211 (Rep.Diaz) are identical joint resolutions that propose a constitutional amendment to allow the legislature, by general law, to authorize district school board levies to be used for the educational benefit of students who are not attending full time a school or program operated by the district school board.

If passed, this amendment would take effect Jan. 1, 2023.

Both bills have been filed but not yet been assigned to committees.

Diversity, Equity, and Inclusion Office of Diversity, Equity, and Inclusion: HB 221 (Rep. Davis) and SB 388 (Sen. Berman) are identical bills that would establish the Office of Diversity, Equity, and Inclusion within the Executive Office of the Governor, headed by a Chief Diversity Officer (CDO). In coordination with agency heads or their designees and no later than Oct. 1, 2022, the CDO is required to create a strategic plan to guide the office and the agencies in their efforts to ensure the enactment of principles, policies, and approaches aimed at establishing equity across state government, including, but not limited to, efforts to remove systemic barriers and provide equal access to opportunities and benefits and to identify underserved communities and policies designed to advance their standing. This plan must be updated every four years.

HB 221 has been referred to three committees of reference and is currently in the House Government Operations Subcommittee. SB 388 has also been referred to three committees of reference and is currently in the Senate Government Oversight and Accountability Committee.

NEWS ARTICLES Here are 10 big issues to watch in Florida’s 2022 legislative session Jim Saunders | News Service of Florida | Jan. 6 Lobbyists rejoice: face-to-face meetings with lawmakers set to resume this session Jim Turner | The Capitolist | Jan. 5 Senate redistricting leader plans to renumber districts randomly Jacob Ogles | Florida Politics | Jan. 5 Unexpected surge in sales tax collections, real estate sales pump cash into state budget again Jim Saunders | News Service of Florida | Jan. 3 Some state lawmakers say Florida’s facing affordable housing crisis Jake Stofan | News Channel 7 WJHG | Dec. 20

Jan. 7, 2022 | Legislative Reporter

APA FLORIDA