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HomeMy Public PortalAboutLTC 024-2022 - Legislative Session Week 3 ReportFJMG/MH 1 Session 2022 Bal Harbour Village – Week 3 Report Enclosed is our 2022 Session, Week 3 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 sets forth a mandatory structural inspection program for multi-family residential buildings in the state of Florida. Within this program are milestone inspection intervals that change with regards to the age of the building in question. Inspections are conducted by licensed architects or engineers using a two-tiered approach, the costs of inspection are at the expense of the building owner or the board of administration. A visual inspection is first performed to try to detect any structural flaws such as cracks, distortion, or signs of leakage. If this initial inspection results in any structural distress; a second inspection must be conducted by a special inspector who will further test the structural integrity of the building to either confirm that the building is safe for its intended use, or to recommend a program for fully assessing and repairing damaged portions of the building. Upon inspection, boards of administrations of condominium associations and cooperative associations must distribute a copy of each inspection report for a condominium building or cooperative building to unit owners and publish the report on the association’s website under certain circumstances. Additionally, this bill enables local enforcement agencies to prescribe timelines and penalties with respect to compliance with milestone inspections. Finally, the Florida Building Commission is given discretion to develop comprehensive structural and life safety standards; these standards are to be made available for local government adoption; they may decline to adopt such standards. The impact of this bill would raise compliance costs for municipalities and counties to follow the provisions in the bill. These costs can be mitigated as these entities have the discretion to set forth inspection costs and fees, thereby spreading these costs on building owners who must pay for these costs of inspection. For example, this bill may force local governments to accrue logistical costs associated with the tracking of the ages of multi-family residential buildings. SB 1702 was voted upon favorably in the Committee on Community Affairs by a vote of 9 – 0. Local Ordinances (SB 280 Senator Hutson) 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 continue to work toward 2 compromise language. As a result, the Florida Association of Counties and the Florida League of Cities have withdrawn their opposition. This week, Senator Hutson filed a floor amendment (subsequently amended) to SB 280; this amendment removed the one-sided attorney’s fees provision in the bill and replaced it with a prevailing party metric, as is the case in SB 620. Therefore, the judge has the discretion of sanctioning those who file frivolous lawsuits and order the recovery of attorney’s fees to one or more parties. The amendment calls for local governments to create business impact statements with proposed legislation. This amendment outlines certain requirements that must be present within these impact statements, such as an estimate of the direct economic impact of the proposed ordinance on private for-profit businesses in the municipality and a good faith estimate of the number of businesses likely to be impacted by the ordinance. Finally, the amendment included several major exemptions to this bill, which are as follows: 1. Part II of Chapter 163 of the Florida Statutes covering growth policy; county and municipal planning; and land development. 2. F.S 553.73, Chapter 553 Section 73 of the Florida Statutes addresses the Florida Building Code. This means that any regulation pertaining to the Florida Building Code cannot be challenged under this bill by businesses who have been affected by promulgated regulations therein. 3. F.S 633.202, Chapter 633 Section 202 of the Florida Statutes addresses the Florida Fire Prevention Code. This means that any regulation pertaining to the Florida Fire Prevention Code cannot be challenged under this bill by businesses who have been affected by promulgated regulations therein. 4. F.S 190.005, Chapter 190 Section 005 of the Florida Statutes addresses any regulations pertaining to community development and establishing a district. 5. F.S 190.046 Chapter 190 Section 046 of the Florida Statutes addresses any regulations pertaining to the termination, contraction, or expansion of the boundaries of a community development district. 6. Ordinances related to the issuance or refinancing of debt; 7. Ordinances related to the adoption of budgets or budget amendments; 8. 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 a local government; or 9. Emergency ordinances On January 26th, Senator Hutson introduced a substitute amendment altering this prior amendment. Included in this substitute amendment is a change of a provision set forth in §125.675 concerning legal challenges to enacted ordinances. The initial amendment allowed for a lifting the automatic stay upon two conditions precedent: 1. The local government prevailed in the lower court; and 2. a preliminary appellate court order lifting the stay while the appeal is being considered. This substitute amendment changed this by allowing the local government to enforce the ordinance - notwithstanding any further appeal - 30 days following a favorable lower court judgement. This right to enforce the ordinance can be restricted if the plaintiff/appellant files a motion to stay the lower tribunal’s order AND that motion is granted by the appellate court. These amendments and substitute amendments made by Senator Hutson were adopted on third reading, all other amendments offered either failed or were voluntarily withdrawn. This bill passed the full Senate by a vote of 28 - 8. The companion bill, HB 403 has passed its first committee with a vote of 11 – 4. 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. Senator Hutson filed amendments to SB 620 which propose to change the imposition of attorney’s fees from an exclusively local government burden to a prevailing party burden. This is significant as it lessens the costs of litigation for local governments and reduces the potential for forced settlements. Moreover, this amendment has included two exceptions to the general proposition of this bill – to enable businesses to sue for business damages directly related to 3 local government legislation. The first exception covers any ordinance or charter relating to procurement; the second exception deals with any ordinance or charter provision intended to promote, enable, or facilitate economic competition. This latter exception is important as it is necessary to prevent local governments from facing potential liability - from aggrieved businesses - incidental to legislation meant to spur development of businesses. Finally, the business damages calculation was altered by this amendment to allow a business to recover present value of future lost profits caused by the ordinance; these lost profits are capped at the lesser of the two following options: 1. 7 years of lost profits; or 2. or future lost profits for a duration determined by the number of years the business had been in operation in the jurisdiction before the ordinance or charter provision was enacted. The prior revision of the bill was unclear as to which of the two prior metrics would be used. This bill clarifies the intent of the sponsors, local governments found to be responsible under this new cause of action for business damages will pay the lesser of the two post amendment metrics – if the amendment to the bill is passed. Overall, this amendment to the bill has lessened some of the financial costs to local governments. Additionally, the sponsor, Senator Hutson offered amendments that appeared to improve the bill from a local government perspective. This first amendment adds language to the exception set forth in Part II of Chapter 163 of the Florida Statutes; the exception is strengthened by adding zoning, development orders, and development permits to the list of legislation areas that are immune from challenge under this new business damages cause of action set forth by the bill. Finally, the exception regarding the promotion of economic competition is changed to cover situations where amendments thereof could give rise to a claim under this bill. The second amendment adds a form of curing the defects of the given ordinance or charter provision giving rise to the business damage cause of action. Specifically, adding an option to repeal/amend the whole ordinance or repeal/amend part of the ordinance in such a manner that would mitigate the 15 percent damages to the profits of the business. It is worth noting Senator Hutson pointed out that local governments can avoid facing liability for business damages by creating ordinances under any available exception in this bill; they can also amend or repeal the ordinance in whole or in part, and as a last measure, governments can give a waiver to the affected business. Finally, Senator Hutson has amended the bill to name section 1 of the act: “Local Business Protection Act.” These amendments and substitute amendments made by Senator Hutson were adopted on third reading, all other amendments offered either failed or were voluntarily withdrawn. This bill passed the full Senate by a vote of 22 - 14 . The companion bill, 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. Regulation of Vacation Rentals: (SB 512/HB 325) Sponsored by Senator Burgess, this bill again attempts to preempt the regulation of vacation rentals to the state, grandfathering in ordinances passed by local governments prior to June 1, 2011. In this version of the bill, local governments would be preempted from the regulation of advertising platforms, and would be limited to any registration fees of no more than $50. Inspection of these vacation rentals would be the responsibility of DBPR. Other key provisions include the following: The bill allows platforms to exclude service fees from the taxable amount if the platforms do not own, operate, or manage the vacation rental. It allows the division to take enforcement action for noncompliance. 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. Advertising platforms are required by the bill to collect and remit any taxes imposed under chapters 125, 205, and 212, F.S., that result from payment for the rental of a vacation rental property on its platform. 4 Allows the Department of Revenue to adopt emergency rules for six months which may be renewed until permanent rules are adopted. Provides that its terms do not supersede any current or future declaration or covenant for condominium, cooperative, or homeowners’ associations. SB 512 passed Regulated Industries with a vote of 8 – 0 but was not heard during week 3. The House companion, HB 325 by Representative Fischer passed its first committee this week, 10 - 6. Sovereign Immunity (HB 985 Representative Beltran) HB 985 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. The sponsor of SB 974, Senator Gruters, filed a strike-all amendment changing the recovery limits for tortious actions of one or more claims against a sovereign entity. The capped recovery for an individual claim is set at $300,000; multiple claims stemming from the same incident or occurrence will be capped at $400,000. Finally, the Department of Financial Services, under this amendment, would now be responsible for adjusting the limitations beginning January 1st, 2032, and every 10 years from that date. These limitations shall be rounded to the nearest $10,000, and after every adjustment, the department must publish the adjusted liability limitation amounts on its website. HB 985 passed its first committee 16 – 1. Session Dates: January 11 through March 11, 2022.