Loading...
HomeMy Public PortalAboutLTC 013-2022 - Legislative Session Week 1 & 2 Report Final– JMG/MH Session 2022 Bal Harbour Village – Weeks 1 & 2 Report Enclosed is our 2022 Session, Weeks 1 and 2 Report which includes a weekly update on legislative issues. As we move through Session and issues arise, we will include those in our weekly reports as well. Please let us know if you have questions on issues included in this report, or on any other issue of concern. We will be happy to provide information to you. Condominium/Community Association Legislation (SB 1702 by Senator Bradley) Various bills have been filed to date resulting from the tragedy in Surfside several months ago. We have had discussions with the Senate President regarding the need to revise laws affecting condominium safety. We have met also with Senator Pizzo who is a key member on this issue as he represents the coastal area of Miami Dade County, including Surfside. SB 1702, sponsored by Senator Bradley, deals with Mandatory Building Inspections, and we expect her bill to be a leading bill as they work to address this complicated issue. Among other issues, this bill would move the required milestone inspections from 40 to 30 years to 20 years for coastal communities, and would enhance requirements at each phase. This legislation will certainly evolve over the next few weeks as we move through Session. SB 1702 will be heard in committee on 1/25. There are various bills filed with issues that may become combined into an omnibus bill should the Legislature work in that direction include but are not limited to SB 642, HB 329 Condominium/Community Association Databases/Surfside, SB 880 Community Associations, and SB 274, HB 811 Condominium Fraud Investigation Pilot Program. Local Ordinances (SB 280 Senator Hutson) Also a priority of Senate leadership, the sponsor, Senator Hutson has worked in conjunction with the Florida Association of Counties as well as with the League of Cities to craft compromise language. This language passed in Senate Rules this week. As a result of this language, the Florida Association of Counties and the Florida League of Cities have withdrawn their opposition. Additionally, the incoming Senate President, Senator Passidomo, spoke on her support for the amended bill. Senator Passidomo noted that the goal of this bill is to solve the issue of the multiple preemption bills filed and/or passed each Session. She stated that each year an aggrieved party has two options, to file a lawsuit against the local government or to come to Tallahassee to pass a preemption bill. What this bill does is it provides the tools for local governments to determine whether or not their proposed legislation will work or not work and creates a process that has the goal of reducing the variety of preemption bills. 1 The bill sponsor, Senator Hutson thanked FAC and FLC for their work with him on this bill of the previous 4 months, and noted this bill would give local governments more information on proposed legislation at the local level. To summarize, Senator Hutson’s compromise strike-all amendment narrows the scope of this bill. The two main requirements of this bill are the fiscal impact statement and the ‘rocket docket.” The former urges the local governments to take a closer look at the potential externalities, specifically those imposed on businesses, before passing an ordinance. The latter provides recourse for local governments who have their ordinances stayed upon civil action, this rocket docket allows for timely resolution of these ordinance challenges by the judiciary. The amendment also provides exemptions for, among other things, emergency relief and zoning changes. Likewise, the amendment allows for local governments to delegate the creation of these fiscal statements rather them being directly responsible for their creation. Finally, the bill was amended to reflect changes with regards to the automatic stay, which could now be lifted by appellate courts instead of having the ordinance halter through the entirety of the appeal process. The major concerns that have been lessened by these changes and series of compromises are: 1) the arbitrary and unreasonable standard for evaluating local government legislation; and 2) the permanence of the automatic stay throughout the judicial process. The arbitrary and unreasonable standard simply models that of the common law standard of arbitrary and capricious, this means that local government action will be scrutinized to the extent that their legislation bears a close nexus between the purposes sought and the means employed. This is the least exacting standard of review on local government action, rational basis review. This deferential standard alleviates concerns of local government who simply need to demonstrate that their motives for particular legislation is reasonable. Finally, the reprieve from the automatic stay by way of appellate decision, allows for local governments who were successful in the lower courts to obtain a break in the automatic stay and pass meaningful legislation while still pending appeal. SB 280 has passed its second of two committees with a vote of 14 – 2. The House companion bill, HB 403 was not heard this week but is expected to be amended to mirror SB 208. Local Governments (SB 620 Senator Hutson) The bill creates a cause of action for a business that has been adversely affected by an ordinance or charter provision taking into account several factors. The local government must respond to challenges of affected businesses so long as those business have seen effects local government legislation on 15% of their profits, as opposed to their overall revenue. The business must be in operation in Florida for at least three years, to be eligible to recover business damages caused by local legislation. Damages for such interference with business earnings can be calculated by one of two metrics: 1) the present value of 7 years’ lost profits; or 2) an amount equal to the business’ gross receipts for the 60 months preceding the date of enactment of or amendment to the ordinance or charter provision. The amendment also implements exemptions for local government actions in areas of growth, emergency orders, land development regulation, ordinances covering the Florida Building and Fire Prevention codes, and debt refinancing or budget matters. Finally, pre-suit conditions have been added to give local governments options to mitigate or settle these conflicts with businesses. The first being an 180-day business obligation to offer a settlement to the local government from the moment local government action is taken. This offer must describe the nature of the harms suffered by the business, including a proof of damages accrued from the legislation. Secondly, upon receipt of this settlement offer the local government has 120 days to respond to the offer. Notably, in the case of settlement, the businesses are the only party to receive compensation for attorney fees, if the local 2 government is successful in a civil action, under this bill, it is not able to recover attorney’s fees. Finally, this amendment gives the local government – within the 120-day response period - an opportunity to cure any defect in legislation that is causally imposing costs/losses on the business or businesses in question. SB 620 has passed both committees of reference, Judiciary with a vote of 7 – 4 and Appropriations with a vote of 11 – 7. HB 569 passed its first committee with a vote of 12 – 5 during week 1, but was not heard this week. We continue our efforts with FAC and the FLC to advocate on behalf of the concerns with this bill. The House companion bill has not been heard but is expected to also mirror the Senate bill. Regulation of Vacation Rentals (SB 512 Senator Burgess, HB 325 Representative Fischer) SB 512, sponsored by Senator Burgess, preempts regulation of vacation rentals to the state. Current law does not allow local laws, ordinances, or regulations that prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. However, this prohibition does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011. The bill permits “grandfathered” local laws, ordinances, or regulations adopted on or before June 1, 2011, to be amended to be less restrictive or to comply with local registration requirements. The bill does not affect vacation rental ordinances in jurisdictions located in an area of critical state concern, (the Florida Keys). Under this version of the bill, a local government may require vacation rentals to be registered but are allowed only a registration fee of no more than $50. A local government may adopt parking and garbage requirements so long as those standards are not imposed solely on vacation rentals. Importantly, the bill preempts the regulation of advertising platforms to the state. An advertising platform is a person who electronically advertises a vacation rental to rent for transient occupancy, maintains a marketplace, and a reservation or payment system. The bill also Requires local governments to accept or deny a registration application within 15 days of receipt of an application. Authorizes the division to issue temporary licenses to permit the operation of the vacation rental while the license application is pending. Permits a local government to terminate a local registration for violations of local registration requirements. Authorizes the division to revoke or suspend state vacation rental licenses for violations of local registration requirements and violations of community association property restrictions. Authorizes the division to fine an advertising an amount not to exceed $1,000 for a violation of the provisions in the bill or rules of the division Provides that its terms do not supersede any current or future declaration or covenant for condominium, cooperative, or homeowners’ associations Requires a sexual offender or predator to register at the local sheriff’s office no later than 5:00 p.m., 24 hours after establishing a temporary residence in a vacation rental. SB 512 passed its first committee 8 – 0 and HB 325 has not been heard to date. 3 Sovereign Immunity (HB 985 Representative Beltran) HB 985 passed its first committee in the House this week. The House bill would increase the cap for damages against the state and its agencies and subdivisions for torts to $1,000,000 per person, prohibits an insurance policy from conditioning the payment of benefits, in whole or in part, on the enactment of a claims bill. Also, beginning on July 1, 2023, the bill requires the Department of Financial Services to annually adjust the damages cap to reflect changes in the Consumer Prices Index. Importantly, this bill would eliminate any statute of limitations on sexual battery actions involving a victim who was younger than 16 years old at the time of the incident. The bill now also decreases from six months to three months the amount of time a government entity has to make a final disposition of a claim during the pre-suit process within s. 768.28(6), F.S., after which time the plaintiff may bring a lawsuit. HB 985 passed its first committee 16 – 1. SB 974 Senator Gruters has not been heard to date. Session Dates: January 11 through March 11, 2022. 4