Jan. 14 Legislative Reporter

Jan. 14, 2022 | Legislative Reporter The 2022 Legislative Session commenced on Jan. 11 and is scheduled to end on March 11. Governor DeSantis provided his State of the State address outlining his priorities for the session, including revamping elections law, boosting pay and providing bonuses for teachers, and providing gas tax breaks to motorists.

Approximately 3,500 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 were filed this past week: • HB 1411 (Rep. Avila) that requires floating solar facilities to be a permitted use in certain land use categories; • HB 1543 and HB 1545 (Rep. Tomkow), SB 1800 and SB 1802 (Sen. Boyd) which establish the Broadband Pole Replacement within the Florida Office of Broadband; • SB 1726 (Rep. Ausley) which establishes the Broadband Deployment Task Force within DEO to support and provide recommendations for the deployment of broadband internet service throughout the state; • HB 1555 (Rep. McClain) which amends s.163.045, dealing with tree pruning trimming or removal on residential property, to provide definitions of certain terms ; • SB 1940 (Sen. Brodeur) which establishes the Statewide Office of Resiliency within the Executive Office of the Governor.

Jan. 14, 2022 | Legislative Reporter

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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

Local Ordinances: CS/SB 280 (Sen. Hutson), a delete-all amendment, was reported favorably by the Senate Community Affairs Committee on Jan. 12. The amended bill revises 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 be posted on the jurisdiction’s website on the same day as notice of proposed enactment is published. The business impact statement, as amended by the committee, must include all of the following: 1. A summary of the proposed ordinance, including a statement of the public purpose served by the proposed ordinance, such as serving the public health, safety, morals and welfare of the jurisdiction; 2. An estimate of the direct economic impact of the proposed ordinance on private, for-profit businesses in the jurisdiction including the following, if any: • an estimate of direct compliance costs businesses may reasonably incur if the ordinance is enacted; • identification of any new charge or fee on businesses subject to the proposed ordinance or for which businesses will be financially responsible; • an estimate of the jurisdiction’s regulatory costs, including an estimate of revenues from any new charges for fees that will be imposed on businesses to cover such costs.

3. A good faith estimate of the number of businesses likely to be impacted by the ordinance; 4. Any additional information the governing body determines may be useful.

The amended bill also provides that the local jurisdiction is not required to hire an accountant or other financial consultant to prepare the business impact statement.

The bill also creates 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 an action, including any appeals, challenging the ordinance’s validity on grounds that it is expressly preempted by the state constitution or state law, or is arbitrary or unreasonable. This requirement applies only if: • the action was filed with the court no later than 90 days after the adoption of the ordinance; • suspension of the ordinance was requested in the initial complaint or petition, citing this section; and • the county or municipality was served with a copy of the complaint or petition.

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 bill specifies 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.

These two new sections do not apply to the following local ordinances: ordinances adopted pursuant to Part II of Chapter 163, ordinances implementing s.553.73 (Building Code), and ordinances implementing s.633.202 (Fire Code).

Additionally, they do not apply to ordinances required to comply with federal or state law or regulation; ordinances related to the issuance or refinancing of debt; ordinances related to the adoption of budgets or budget amendments; or Jan. 14, 2022 | Legislative Reporter

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ordinances required to implement a contract or an agreement, including, but not limited to, any federal, state, local or private grant, or other financial assistance accepted by the county or municipality.

The amended bill also revises 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 filed against a local government to challenge the adoption of a local ordinance, adopted on or after Oct. 1, 2022, on the grounds that the ordinance is arbitrary or unreasonable.

Awards are capped at $50,000 and a prevailing party may not recover any attorney fees or costs directly incurred or associated with litigation to determine an award of reasonable attorney fees or costs. Additionally, this section cannot be construed to authorize double recovery if an affected person prevails on a damage claim brought against a local government pursuant to other applicable law involving the same ordinance, operative acts or transactions. Note that s.57.112 F.S. does not apply to local ordinances adopted pursuant to part II of Chapter 163, s.553.73, or s.633.202.

CS/SB 208 now moves to the Senate Judiciary Committee, its second of three committees of reference. HB 403 (Rep. Giallombardo), a similar bill, was reported favorably by the House Local Administration & Veterans Affairs Subcommittee on Dec. 1, 2021, and is now in the House Civil Justice & Property Rights Subcommittee, its second 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, notwithstanding any other law or local ordinance or regulation to the contrary, approve the development of affordable housing on any parcel zoned for residential, industrial, 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. (State Apartment Incentive Loan Program.) The provisions of these subsections are self-executing and do not require the governing body to adopt an ordinance or a regulation before using the approval process in these subsections.

SB 962 was reported favorably by the Senate Community Affairs Committee on Jan. 12 and moves to the Senate Transportation Committee, its second of three committees of reference. HB 981 (Rep. Payne), a similar bill, is in the House Local Administration & Veterans Affairs Subcommittee, its first of two committees of reference.

Business Damages Caused by Local Governments: HB 569 (Rep. McClure) create s.70.91 F.S. to provide a mechanism for a Florida business owner to recover business damages related to government action not amounting to a taking in specified circumstances. The bill states 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 which remains in effect for no more than 90 days; or 4. An ordinance or a charter provision that increases economic freedom.

The bill also states that this does not apply to a business that may claim business damages in an eminent domain proceeding.

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, 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, the Jan. 14, 2022 | Legislative Reporter

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county or municipality must accept, reject, or make a counteroffer. Failure to respond or reject the offer will be considered a counteroffer of zero dollars.

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 after 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.

The bill states that s.70.91 F.S. may not be construed to authorize double recoveries.

HB 569 was reported favorably by the House Civil Justice & Property Rights Subcommittee on Jan. 13 and moves to the House Local Administration & Veterans Affairs Subcommittee, its second of three committees of reference. SB 620 (Sen. Hutson), an identical bill, had a reference to the Senate Rules Committee removed and is now in the Senate Appropriations Committee, its final committee of reference. It was previously reported favorably by the Senate Judiciary Committee on Nov. 30, 2021.

Vacation Rentals: SB 512 (Sen. Burgess), was reported favorably by the Senate Regulated Industries Committee on Jan. 11 and moves to the Senate Community Affairs Committee, its second of three committees of reference. The bill would preempt the regulation of advertising platforms used for vacation rentals to the state. 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. 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 (Rep. Fischer), an identical bill, is in the House Regulatory Reform Subcommittee, its first committee of reference.

Transportation

Transportation: CS/HB 157 (Rep. Andrade), a delete-all amendment, was reported favorably by the House Tourism, Infrastructure & Energy Subcommittee on Jan. 12. Among the changes, the bill identifies a cap on the amount of revenue that can be committed for public transportation.

Under current law, the Department of Transportation must annually commit a minimum of 15 percent of state revenue deposited into the State Transportation Trust Fund (STTF) for public transportation projects. There currently is no statutory maximum limit to the amount that may be committed. This bill provides that no more than 25 percent of all revenues deposited into the STTF, excluding state revenues used for matching federal grants, may be annually committed for public transportation projects.

The bill moves to the House Infrastructure & Tourism Appropriations Subcommittee, its second of three committees of reference. A similar bill, CS/SB 398 (Sen. Hooper), is in the Senate Appropriations Subcommittee on Transportation, Tourism, and Economic Development, its second of three committee of reference.

Jan. 14, 2022 | Legislative Reporter

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NEWS ARTICLES Florida bill would ease challenges to local government laws Curt Anderson | Associated Press, News4Jax | Jan. 12 Florida cities, counties try to blunt what they call “broad attack on home rule” James Call | USA Today Network-Florida | Jan. 12 Florida legislators get way with their Amendment 1 heist – for now Craig Pittman | Florida Phoenix | Jan. 13 Gov. Ron DeSantis’s State of the State address focused little on Florida Jim Saunders and Jim Turner | News Service of Florida | Jan. 12 Florida Chamber of Commerce releases “Where We Stand” business agenda for 2022 Session Peter Schorsch | Florida Politics | Jan. 13

Jan. 14, 2022 | Legislative Reporter

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