Nov. 5, 2021 Legislative Update

Legislative Reporter

Nov. 5, 2021 The third week of interim committee meetings concluded this week; legislators will return on Nov. 15 for the next round of meetings and the special session. Additional interim committee weeks are Nov. 15 and Nov. 29.

Session is scheduled to begin on Jan. 11.

The latest Bill Tracking Report, as of Nov. 5, can be downloaded as a pdf here. Please review it to see all the bills that have been filed that APA Florida is tracking. If you would like any bills added to this report or would like more information about a specific bill, please contact Alex Magee at fapa@floridaplanning.org.

Of most interest, the following bills have been filed: Local Ordinances: SB 280 (Senator 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 Nov. 5 2021 | Legislative Reporter

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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 is in conflict 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.

SB 280 has been assigned to three Senate committees: Community Affairs; Judiciary; and Rules. It is currently in the Senate Community Affairs Committee. Committee references for HB 403 have not yet been assigned.

Local Government: SB 620 (Senator Hutson) creates 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 which 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.

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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.

The bill specifies that s.70.91 F.S. does not apply to a business that may claim business damages under chapter 73 (Eminent Domain) and may not be construed to authorize double recoveries.

SB 620 has been referred to three Senate committees: Judiciary; Rules; and Appropriations. It is currently in the Senate Judiciary Committee. It does not have a House companion bill as of date.

School Concurrency: SB 706 (Senator Perry) amends s.163.3180 relative to school concurrency. The bill amends 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 bill also amends 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 in order 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. 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.

SB 706 has not yet been referred to committees and there is no House companion bill to date.

Preemption of Tree Pruning, Trimming and Removal: SB 316 (Sen. Stewart) and HB 6025 (Rep. Eskamani) are identical bills that would repeal s.163.045 F.S. This section was adopted in 2019 and 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 that is maintained under the specified conditions.

SB 316 has been referred to three Senate committees: Community Affairs; Judiciary, and Rules. HB 6025 has been referred to the House Local Administration & Veterans Affairs Subcommittee, Commerce Committee, and State Affairs Committee. Neither bill has been heard yet.

Preemption of the Regulation of Vacation Rentals: HB 6033 (Rep. Grieco) deletes the current preemption in s.509.032(7)(b) of the authority for local governments to prohibit vacation rentals or regulate their duration or frequency of rental. The bill has been referred to three House committees: Regulatory Reform Subcommittee, Ways & Means committee, and Commerce Committee. It is currently in the Regulatory Reform Subcommittee. There is no Senate companion bill filed to date.

Vacation Rentals: SB 512 (Sen. Burgess) and HB 325 (Rep. Fischer) are identical bills dealing with vacation rentals.

The bills authorize local governments to adopt a vacation rental registration program and impose a fine for failure to Nov. 5 2021 | Legislative Reporter

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register. As a condition of registration, the local law, ordinance or regulation may only require the owner or operator of a vacation rental to: 1. Submit identifying information about the owner or the owner’s agents and the subject vacation rental property; 2. Obtain a license as a transient public lodging establishment issued by the division within 60 days after local registration; 3. Obtain all required tax registrations, receipts, or certificates issued by the Department of Revenue, a county, or a municipal government; 4. Update required information on a continuing basis to ensure it is current; 5. Comply with parking standards and solid waste handling and containment requirements, so long as such standards and requirements are not imposed solely on vacation rentals; 6. Designate and maintain at all times a responsible party who is capable of responding to complaints and other immediate problems related to the vacation rental, including being available by telephone at a listed phone number; 7. Pay in full all recorded municipal or county code liens against the subject property. The local government may withdraw its acceptance of a registration on the basis of an unsatisfied recorded municipal or county code lien.

These bills outline a process for the local review of vacation rental registration applications. Local governments may terminate or refuse to issue or renew a vacation rental registration when: 1. The operation of the subject premises violates a registration requirement or a local law, ordinance, or regulation that does not apply solely to vacation rentals; or 2. The premises and its owner are the subject of a final order or judgment lawfully directing the termination of the premises’ use as a vacation rental.

The bills also authorize the Division of Hotels and Restaurants to revoke, refuse to issue or renew, or suspend for a period of not more than 30 days a vacation rental state license when: a. The operation of the subject premises violates the terms of an applicable lease or property restriction, including any property restriction adopted pursuant to chapter 718 (Condominiums), chapter 719 (Cooperatives), or chapter 720 (Homeowner Associations), as determined by a final order of a court of competent jurisdiction or a written decision by an arbitrator authorized to arbitrate a dispute relating to the subject property and a lease or property restriction; b. The owner or operator fails to provide proof of registration, if required by local law, ordinance, or regulation; c. The registration of the vacation rental is terminated by a local government; or d. The premises and its owner are the subject of a final order or judgment lawfully directing the termination of the premises’ use as a vacation rental.

The bills preempt the regulation of advertising platforms for vacation rentals to the state and identifies information that must be included on said platforms relative to vacation rentals. They also include provisions for the collection and remittance of taxes on vacation rental payment systems through advertising platforms.

SB 512 has been referred to three Senate committees: Regulated Industries; Community Affairs; Rules. It is currently in the Senate Regulated Industries Committee and has not yet been heard. HB 325 has not yet been referred to any committees.

News Articles: DeSantis unveils Florida special session goals John Haughey | The Center Square | Nov. 2 Higher flood Insurance costs signal need to act on sea level rise Robert Diffenderfer, Guest Author | Florida Politics | Nov. 1

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Report: Florida positioned to be national leader on education-workforce continuum Renzo Downey | Florida Politics | Oct. 30 Legislature trying again for statewide vacation rental regulation Scott Powers | PalmCoastObserver.com | Oct. 28 Chris Sprowls: Legislature’s job is to let freedom ring Christine Jordan Sexton | Florida Politics | Oct. 28 Florida gets another bump in tax revenues Jim Turner | News Service of Florida | Nov. 4

Nov. 5 2021 | Legislative Reporter

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