2015 Florida Legislative Update: Dean Mead Capitol Report

Post-Legislative Session Report – June 2015

Dean Mead’s Government Relations, Lobbying and Administrative Law industry team is pleased to provide a summary report of the highlights from the 2015 Legislative Session. Below is a description of passed legislation that may be of interest to your business. “SB” is the abbreviation for Senate Bill; “HB” is the abbreviation for House Bill; and “CS” is the abbreviation for Committee Substitute, which means the bill was amended in committee.

The full text of each enrolled bill, as well as applicable legislative staff reports, are available on the legislative web sites (www.flsenate.gov; www.myfloridahouse.com; and www.leg.state.fl.us.).

In November 2014, voters reelected Governor Scott who ran on a platform of tax cuts and job creation, and approved Amendment 1 by a landslide to allocate state funds to conservation efforts.  These actions by Florida voters foreshadowed the big issues for 2015, which are outlined below. However, no one could have predicted at the start that an impasse in budget negotiations over health care funding would result in a bitter and early end to this year’s Regular Session, with many other major initiatives caught in the crossfire. The budget impasse was resolved in a Special Session in June.

Agriculture and Property Rights

Civil Liability of Farmers: SB 158 passed providing that an existing exemption from civil liability for farmers who gratuitously allow a person to enter upon their land for the purpose of removing farm produce or crops left in the field applies at any time, rather than only after harvesting passed and has been signed into law as Chapter 2015-38, Laws of Florida.

Drone Surveillance: CS/CS/SB/766 passed, prohibiting a person, a state agency, or a political subdivision from using a drone to capture an image of privately owned real property or of the owner, tenant, or occupant of such property with the intent to conduct surveillance without his or her written consent if a reasonable expectation of privacy exists. The current exception for law enforcement agency activity is expanded to include activities by any person or entity engaged in a business licensed by the state (such as property appraisers, utilities, aerial mappers, cargo delivery systems) subject to certain conditions. The bill does not have the intent of affecting the use of drones for agricultural operations and provides civil remedies for compensatory and punitive damages and injunctive relief for violations. It has been signed into law as Chapter 2015-26, Laws of Florida.

Private Property Rights: CS/CS/HB 383 passed amending the Bert Harris Private Property Rights Act to create a cause of action to recover damages for landowners where local and state governmental entities impose conditions that rise to the level of unconstitutional exactions. Plaintiffs will be required to provide pre-suit notice to the governmental entity to allow an opportunity to explain or correct the prohibited exaction without need for further litigation. If the suit is necessary, the governmental entity is required to prove that the exaction complies with the standards set by the U.S. Supreme Court and the property owner must prove damages from the prohibited exaction. The bill clarifies the measure of damages recoverable under the cause of action and provides for injunctive relief, and allows recovery of costs and attorney fees. Governmental entities may recover attorney fees and costs if they prevail. Impact fees and non-ad valorem assessments are exempt from the bill, and sovereign immunity is waived to the extent of damages assessed under the new cause of action. It was signed into law as Chapter 2015-142, Laws of Florida.

Racing Animals—Prohibited Medications: CS/HB 239 passed both chambers and has been signed into law as Chapter 2015-88, Laws of Florida.  The bill will bring Florida into compliance with the international standard for racing animals by modifying the current regulation of prohibited medications, drugs, and naturally occurring substances in racing animals—both horses and greyhounds.

Estate Planning and Taxes

Apportionment of Estate Taxes: CS/CS/SB 872 passed this Session and has been signed into law as Chapter 2015-27, Laws of Florida to set the order and priority for the payment of estate taxes by updating existing statutes to take into account the IRS Code. The bill also clarifies the factors a court may use in awarding fees in trust and estate litigation; provides a 3-month exception bar for making objections to the validity of a will; clarifies the duties of a personal representative who becomes ineligible to serve; and clarifies existing case law regarding to permit objections after a notice of administration in certain circumstances.

Health Care Surrogates: CS/CS/CS/HB 889 also passed this year, to provide more flexibility and choices for a health care surrogate through more access to patient records in a HIPAA compliant manner and closing a gap in the current law regarding the designation of a health care surrogate for minors by parents and legal guardians. It was signed into law as Chapter 2015-153, Laws of Florida.

Guardianship: Several guardianship bills are also passed this year. CS/CS/CS/HB 5, signed into law as Chapter 2015-83, Laws of Florida:

• Requires filing of motion in termination or suspension of power of attorney in incapacity or guardianship proceedings;
• Authorizes court to appoint guardian ad litem to protect minor’s interests;
• Provides for confidentiality in settlement of minor’s claim;
• Requires notification of incapacitated person & attorney before appointment of emergency temporary guardian;
• Provides for compensation of examining committee if petition for incapacity is dismissed;
• Provides for appointment of emergency temporary guardian;
• Provides that business entity may act as guardian; and
• Requires reporting of incidents of abuse, neglect, & exploitation of ward by guardian.

Guardianship—Public Records Exemption: CS/HB 7 creates a public records exemption for settlements entered into by a guardian on behalf of a ward; and CS/CS/HB 437 proposes new procedures for the case plan of any child who is developmentally disabled or incapacitated.  It was signed into law as Chapter 2015-84, Laws of Florida.

Trust Accounts—Electronic Notice: CS/HB 961 also passed to update the Florida Trust Code to authorize a trustee a trustee to post required documents to a secure website or account if a beneficiary opts in to receiving electronic documents through a secure website or account. It has been signed into law as Chapter 2015-176, Laws of Florida.

Transfers to Minors: HB 283, revising the Uniform Transfers to Minors Act to allow persons to establish accounts for minors to remain in custodial status until the minor reaches age 25, has been signed into law as Chapter 2015-140, Laws of Florida.

Terminal Conditions—Experimental Treatment: Also of interest, CS/CS/HB 269 passed this year to authorize experimental drug treatments for the terminally ill; provide procedures to govern the process; and limit the liability for treating physicians and drug manufacturers. It has been signed into law as Chapter 2015-107, Laws of Florida.

Real Property

Construction Defects: Chapter 558, Florida Statutes, provides a method for resolving construction defect disputes before filing a lawsuit. CS/CS/CS/HB 87, which passed the Legislature, provides additional notice requirements under the chapter for construction defects.  It was signed into law as Chapter 2015-165, Laws of Florida.

Condo Termination: State Legislators and Governor Scott have publicly expressed concern about Florida’s condominium termination process under section 718.117, Florida Statutes, by which investors purchase units in bulk and terminate the condominium form of ownership for conversion to rental property after paying market value to remaining unit owners.   In some cases, this has had an adverse impact on unit owners who owe more on their mortgage than the current market value of their units.  Legislation to provide more protections for homeowners in the termination process passed this year, CS/CS/CS/HB 643.  The legislation imposes new restrictions on the termination of condominiums created by the conversion of existing improvements under Part VI of the Condominium Act; clarifies the methodology for determining market value of condominium units; and requires first mortgages to be fully satisfied prior to termination of the condominium. It was signed into law as Chapter 2015-175, Laws of Florida.

Community Associations: CS/CS/HB 791 is this year’s omnibus community association bill. The bill as passed, and signed into law as Chapter 2015-97, Laws of Florida:

• Permits the use of copies, facsimiles or other reliable reproductions of proxies for voting at meetings of the membership as permitted by statute, and it provides that all “written” records maintained by a community association are official association records;
• Permits the use of electronic voting in condominiums, cooperatives and mandatory homeowners associations;
• Permits the posting of meeting notices on “association property,” as well as on the common elements of a condominium, and it clarifies the categories to be used for the condominium association budget
• Extends the sunset of Part VII if the Condominium Act relating to bulk buyers until July 1, 2018; and
• Formally names Chapter 720, F.S., the “Homeowners’ Association Act,” and it expands the definition of “governing documents in a homeowners’ association to include the community’s rules and regulations.

Transient Occupancy: CS/CS/HB 305, as passed, removes “transient occupancy” from the landlord-tenant regulation under Chapter 83, and permits the removal of an unwanted occupant of a residence by law enforcement officials. It has been signed into law as Chapter 2015-89, Laws of Florida.

Landlord/Tenant: CS/CS/HB 779 requires notice to be given to a residential tenant after issuance of the certificate of title in a foreclosure.  The notice provides a 30-day termination period before the rental agreement can be terminated and possession of the property given to the new title owner. It passed the Legislature and has been signed into law as Chapter 2015-96, Laws of Florida.

Mobile Homes: CS/CS/HB 307 passed to revise the Mobile Home Act to provide education programs for association directors; provide revised procedures to govern rental increases and lifetime leases; and it revises operational procedures governing mobile homeowners associations. It has been signed into law as Chapter 2015-90, Laws of Florida.

Timeshares: CS/CS/HB 453 also passed this year. It revises requirements for amendments to timeshare instruments; public offering statements; the relationship between the owners’ association and the managing entity; and the provisions relating to relating to reservation systems and multisite timeshare plans. It has been signed into law as Chapter 2015-144, Laws of Florida.

Tax Restructuring

“Common Element”—Ad Valorem Taxes:  HB 33A by Representative Gaetz is the omnibus tax-cut bill from the Special Session that concluded the budgeting process for the coming fiscal year.  Section 1 of the bill modifies the definition of “common elements” found in Section 193.0235, F.S., for ad valorem tax purposes and includes property used exclusively within a subdivision at least 10 years within the definition and authorizing taxes and assessments to be allocated to individual subdivision lots.  The bill also extends tax credits for low income housing developments to housing opportunities for persons with special needs, and it expands sales tax exemptions to agricultural land owners for irrigation equipment; repair of farm power equipment; stakes used in agricultural production; and aquaculture production.  It was signed into law as Chapter 2015-221, Laws of Florida.

Ad Valorem Tax Exemptions for Military Housing: One tax exemption did manage to make its way through the Legislature during the Regular Session.  HB 361 creating an ad valorem tax exemption for military housing and facilities passed both chambers and has been signed into law as Chapter 2015-80, Laws of Florida.

Seminole Compact and Gaming

The Compact, signed in 2010, is a 20-year revenue-sharing agreement between the state and the Seminole Tribe of Florida to allow gaming on Seminole land. It contains a provision for the operation of table games, such as blackjack, which is set to expire at the end of July, 2015. There was legislation filed to extend the 5-year provision that did not pass.

Miscellaneous Business Issues

Discrimination—Pregnancy:  SB 982 prohibits discrimination on the basis of pregnancy for employment, labor organizations, joint labor-management committees, and employment agencies, and in occupational licensing, certification, and membership organizations, and it makes such discrimination unlawful under the Florida Civil Rights Act.  SB 982 has passed the Legislature and has been signed into law as Chapter 2015-68, Laws of Florida.

Service Animals: CS/HB 71 passed aligning Florida law related to service animals with the American with Disabilities Act and the Fair Housing Act to require public accommodations and timeshares to modify policies to accommodate the use of service animals by individuals with disabilities.  The legislation specifies the conditions where a service animal may be removed or excluded, and it provides for penalties for the misrepresentation of the use of a service animal. In addition to the criminal penalties in current law, the bill requires a business unlawfully denying or interfering with an individual’s right to use or train a service animal to perform 30 hours of community service with an organization that serves individuals with disabilities. It has been signed into law as Chapter 2015-131, Laws of Florida.

Public Lodging—Age Restrictions:  CS/CS/HB 277 requires public lodging establishments to waive any age restriction policies for occupancy when an individual presents a valid military ID.  CS/CS/HB 277 has been signed into law as Chapter 2015-139, Laws of Florida.

Water Policy and Amendment 1

As the 2015 Legislative Session began, it seemed that the passage of major statewide water policy was a foregone conclusion.  The of the Speaker of the House, Steve Crisafulli (R-Merritt Island) and Senate President Andy Gardiner (R-Orlando) even jointly stated their intent to work together on achieving a number of common priorities.  The joint priorities included “sustainable statewide funding and policy strategy for water and natural resources, while implementing Amendment 1,” which was overwhelmingly approved by voters in November, with 75 percent support statewide.  The harmonious tone between the chambers changed dramatically by the end of the Regular Session, with the House adjourning three days early citing an inability to come to an agreement with the Senate on the budget. The limited agenda for the Special Session did not include substantive water policy.

Amendment 1 Implementation: The House and Senate met in conference committee during the Special Session to finalize the implementation of Amendment 1, the constitutional amendment passed by voters in November that allocates money for land and water conservation efforts. SB 2516-A restructures trust funds to implement the constitutional requirement that documentary stamp taxes directed for environmental purposes must not be comingled with the General Revenue Fund. The bill also ensures that the documentary stamp taxes are not commingled with other revenue sources and can be tracked from distribution into the Land Acquisition Trust Fund to appropriations within the General Appropriations Act. The bill terminates certain trust funds currently receiving documentary stamp tax revenue intended for expenditure on environmental programs and redirects those moneys and moneys from other sources deposited into those terminated trust funds to other appropriate trust funds. It was signed into law as Chapter 2015-229, Laws of Florida.

Water Policy: CS/HB 7003 provided increased emphasis on public-private partnerships with landowners to incentivize conservation efforts, springs protection, and streamlining of the state’s duplicative or conflicting regulatory schemes. It was the first bill passed by the House this year but the Senate did not take it up until the last week of Session, after the House had adjourned.

The Senate version, CS/SB 918, mandated a new database of conservation lands and a consolidated annual report on water quality and quantity; included the creation of a Florida Shared Use Non-Motorized Trail Network; a 5-year planning process for water resource projects to be funded with state funds; and established the Florida Water Resources Advisory Council to rank and recommend water projects for funding. Late in the Session, the House took up another bill, HB 653, and amended portions of CS/SB 918 onto that bill, excluding the Advisory Council language, among other provisions.

Neither of the substantive water policy bills passed.

Growth Management: CS/CS/SB 1216 passed this year and was signed into law as Chapter 2015-30, Laws of Florida. Its provisions cover a number of areas, including:

• Mitigation of sinkhole damages; designation of 10 regional planning councils (RPCs) and their borders along with the dissolution of the Withlacoochee RPC, which is incorporated into existing councils;
• A requirement that certain new projects to through the State Coordinated Review Process; naming Pasco County as a pilot community for connected-city plan amendments;
• Clarification that the planning standards of the sector planning statute supersede generally applicable standards found elsewhere in ch. 163, F.S., and provides more flexibility in the designation of conservation easements related to sector plans; and
• Authorization for a water management district to issue a longer consumptive use permit for certain projects.

Legislation of Interest That Did Not Pass

Digital Assets:  CS/CS/SB 102 and CS/HB 313 are companion bills containing the Section’s initiative relating to digital assets. The legislation basically creates the “Florida Fiduciary Access to Digital Assets Act” based upon the Uniform Act.  CS/CS/SB 102 was pending on the Senate Calendar and HB 313 was pending in committee when the Legislature adjourned.

Family Trust Companies:  CS/SB 56 and CS/HB 825 are companion bills containing the initiative to complete the authorizing legislation for the creation and regulation of family trust companies in Florida. CS/SB 568 and CS/HB 825 were pending on the House Special Order Calendar when the Legislature adjourned.

Estoppel Letters—Residential Properties:  CS/CS/HB 611 by Representative Wood and are companion bills that revise the process for providing estoppel certificates under Chapters 718 and 720, providing for the response time and duration of the estoppel and designating the amount of the fee that can be charged.  CS/CS/HB 611 and CS/CS/SB 736 were pending on the House Special Order Calendar when the Legislature adjourned.

Notaries:  SB 436 and HB 663 are companion bills that amend Chapter 117 and require notaries to maintain a notarial journal with a record of certain acts completed by the notary.   Both bills died in committee when the Legislature adjourned.

Department of Agriculture and Consumer Services: CS/HB 7015 and SB 1050 were the Department’s annual omnibus bills. The bills remove provisions requiring the department to give certain priority consideration when evaluating applications for funding of agriculture education and promotion facilities; authorizes the department to secure letters of patent, copyrights, and trademarks on work products and to engage in acts accordingly; and authorize the Commissioner of Agriculture to create an Office of Agriculture Technology Services.

Cattle Market Development Act:  HB 917 and CS/SB 122 rename the current Beef Council as the Florida Cattle Enhancement Board; it revises the funding for Board activities; provides for staggered terms for board members; and repeal the sunset of the Board. The House bill passed but was not taken up in Senate messages.

Public Records/Public Agency Contracts: CS/CS/SB 224 and CS/CS/CS/HB 163 address public records requests made to entities contracting with public agencies.  The bills define the term “acting on behalf of a public agency”; requires that a public agency contract for services include a statement providing the name and telephone number of the public agency’s custodian of records; and specify circumstances under which a court may assess and award reasonable costs of enforcement against a public agency or contractor. The bill was amended and passed between the chambers but was not taken up in Senate returning messages.

Farm Buildings—Fire Safety:  SB 1148 and CS/CS/HB 1025 will exempt nonresidential farm buildings from the Florida Fire Prevention Code. The House bill has passed the full House but was not taken up in the Senate.

Agritourism:  CS/SB 594 and CS/HB 569 prohibit local governments from enforcing ordinances, regulations, rules, or policies that prohibit, restrict, regulate, or otherwise limit agritourism activities on land classified as agricultural land. The House bill passed the full House but was not taken up in the Senate.

Land Application of Septage: CS/SB 648 and CS/HB 687 remove the future prohibition against the land application of septage from onsite treatment and disposal systems. CS/HB 687 died in Senate messages, with the Senate bill still pending in committee.

---

 

Dean Mead’s Governmental Relations, Lobbying & Administrative Team:

Peter Dunbar’s practice focuses on governmental, administrative, and real property law. He began his long career in Florida government in 1967 as staff director in the Florida House of Representatives. Mr. Dunbar later served for five terms as a distinguished member of the Florida House representing Pinellas and Pasco counties in the Florida Legislature. Upon leaving the Legislature, he held the posts of General Counsel and Director of Legislative Affairs under Governor Bob Martinez and as General Counsel at the Department of Financial Services. Mr. Dunbar served as Chief of Staff during the transition from the Martinez administration to the administration of Governor Lawton Chiles, and he is former Chairman and two-term member of the Florida Ethics Commission. Mr. Dunbar was admitted to the Florida Bar in 1972. He is a member of the American College of Real Estate Lawyers, an adjunct professor at Florida State University College of Law, and has recently been selected by his peers as a member of Florida Trend’s Florida Legal Elite Hall of Fame. He may be reached at pdunbar@www.deanmead.com.

Martha Edenfield focuses her practice on governmental affairs, environmental land use and administrative law. Now in her 30th year of private law practice in Tallahassee, she has gained a wide variety of experience representing clients before the Florida Legislature, the Governor, the Cabinet and state agencies. Ms. Edenfield utilizes her political leadership skills to advocate for her clients and coordinate a legislative team. Ms. Edenfield has extensive experience as legal and governmental counsel for agricultural trade groups, industrial associations, medical professionals and local governments. She may be reached at medenfield@www.deanmead.com.

Cari Roth has 30 years of public and private sector legal and legislative experience and is a recognized leader in government relations and environmental and land use law. Her legal and legislative practice focuses on state and local government issues, including land use, water and environmental law, growth management and infrastructure issues, and intergovernmental relations. She also has significant experience in special district law. Most recently, Ms. Roth served as chair of a statewide firm’s land use and government consulting practices. Prior to that, she worked for four years as General Counsel and Assistant Secretary of the Florida Department of Community Affairs in Tallahassee where she played a lead role in negotiating major growth management legislation. As General Counsel, she was involved in many inter-agency efforts, particularly those with the Florida Department of Environmental Protection, Florida Department of Agriculture and Consumer Services, Florida Department of Transportation and all the regional Water Management Districts. She may be reached at croth@www.deanmead.com.

John Wharton represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 25 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; health care; utility law and utility regulation; professional regulation and environmental law. Mr. Wharton has represented clients before the Florida Public Service Commission, the Division of Administrative Hearings, the Department of Environmental Protection, the St. John’s River Water Management District, the Southwest Florida Water Management District, the South Florida Water Management District, the Agency for Health Care Administration, the Department of Financial Services, various boards within the Department of Professional Regulation, the Department of Health, the Florida Department of Lottery, and the Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund, among others.  He may be reached at jwharton@www.deanmead.com.

Bill Townsend practices in the areas of state and local taxation and multi-state taxation. He has represented clients in various states on issues in administrative and judicial actions relating to sales, corporate income, business and organization taxes and telecommunications taxes, as well as state taxation of intellectual property, electronic commerce taxation (E-commerce) and unclaimed property (escheat) issues. Additionally, Mr. Townsend represents clients on legislative tax matters, including the taxation of computer services, corporate income tax issues and sales tax exemption matters. He has an extensive background in structuring business transactions to minimize state tax impacts. Mr. Townsend has also assisted representing new businesses and expanding businesses in dealing with Enterprise Florida and the Florida Department of Economic Opportunity. He has also represented clients in dealings with the Florida Department of Business and Professional Regulation on matters dealing with liquor and tobacco issues. He may be reached at btownsend@www.deanmead.com.

Brittany Finkbeiner focuses on Real Property and Administrative law. Prior to going into private practice, Ms. Finkbeiner served as a chief attorney for the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes. In addition, she’s worked at the Florida Department of Economic Opportunity, The Florida Senate Judiciary Committee and as a legislative aide for the Florida Senate. She may be reached at bfinkbeiner@www.deanmead.com.