HomeMy Public PortalAboutLTC 029-2022 - Legislative Session Week 5 ReportF–
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Session 2022
Bal Harbour Village – Week 5 Report
Enclosed is our 2022 Session, Week 5 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 and Cooperative Associations (A proposed committee bill, PCB PPE 3, filed as HB 7069)
This week, the House released a comprehensive condominium and cooperative associations proposed
committee bill, now filed as HB 7069 that differs from the Senate bill, SB 1702 by Senator Bradley
summarized below.
The House bill would accomplish the following:
Create a statewide building recertification requirement for condominiums and cooperative buildings
that are three stories or more 30 years after initial occupancy and for buildings located within three
miles of the coast, 25 years after initial occupancy.
Require periodic recertifications every 10 years after a building’s initial recertification.
Require an additional, more intensive inspection, or a “phase 2” inspection, if a building recertification
reveals substantial damage to certain structural or life-safety systems.
Require building officials to provide written notice to associations when buildings must be recertified.
Require recertification and phase 2 reports be submitted to building officials and unit owners.
Provide local building officials with ability to assess penalties for failing to comply with the
requirements for building recertifications and phase 2 inspections.
Reserves: The bill would require condominiums and cooperatives to conduct reserve studies every 10
years for buildings that are three stories or more and would prohibits waiver of funding for certain
reserves.
o The bill provides that the amount of funds to reserve is determined by the condominium or
cooperative association’s most recent reserve study. If the amount to be reserved for an item is not
in the association’s most recent reserve study or the association has not completed a reserve study,
then the association may use the traditional formula or alternative formula to determine the amount
of funds to reserve.
o The bill provides that effective July 1, 2024, an association may not waive collecting reserves or
collecting less reserve funds than required for items that are required to be inspected in a reserve
study for an association building that is three stories or more. In addition, associations may not use
such reserve funds for purposes other than their intended purpose.
Require developers to complete reserve studies for every building that is three stories or more, prior to
turning over an association to the unit owners.
Repeal the ability of developers to waive the collection of all types of reserve funds.
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Require reserve study inspections and recertification and phase 2 inspections to be performed by
licensed engineers or architects.
Provide that reserve studies and recertification and phase 2 inspection reports are a part of an
association’s official records and must be provided to a potential purchaser of a unit.
Provide for an additional way for condominium associations to terminate if the cost of repairs identified
in a phase 2 inspection are more than 65 percent of the total fair market value of the units in the
association.
Require DBPR to enforce the reserve studies and recertification and phase 2 inspection requirement s.
Requires associations to notify DBPR about the number of buildings in their association that are three
stories or more.
The PCB has passed its committee and moves forward as HB 7069 which has been referred to the full
Appropriations committee.
Condominium/Community Association Legislation (SB 1702 by Senator Bradley) SB 1702 was not
heard this week.
SB 1702, sponsored by Senator Bradley, deals with Mandatory Building Inspections. Among other issues,
this bill would move the required milestone inspections from 40 to 30 years and every 10 years thereafter
and for buildings within 3 miles of a coastline, the requirement would be every 20 years and every 7 years
thereafter, 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.
Also, stage two of the milestone inspection shall be conducted by a licensed engineer or licensed architect,
as opposed to a “special inspector” under prior language of the bill. This amendment was brought about in
response to challenges by engineers and architects regarding a lack of threshold inspectors in the State of
Florida. To avoid phase 2 inspection delays and the costs associated with finding a threshold inspector,
engineers and architects – who are more readily available in the State of Florida – with heavy experience(
at least 5 year license-holders) in building and inspecting the structural components of buildings will
conduct these inspections. If the initial inspection results in any structural distress; a second inspection must
be conducted by a licensed engineer or architect 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.
SB 1702, was voted upon favorably in the first committee stop and now has passed in the Regulated
Industries Committee by a vote of 8 – 0 on February 1st.
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Local Governments (SB 620 Senator Hutson / HB 569 McClure) 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.
The engrossed text of SB 620 contains the following key provisions; the first being a change to 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, previous amendments included exceptions to the general proposition of the
bill – to enable businesses to sue for business damages directly related to 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. Two further
exceptions covering any ordinance or charter relating to procurement and 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, a new business damages calculation was adopted 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.
This bill now gives local governments some legislative recourse 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. Likewise, bolstering protection from suit for damages,
is this exception concerning the promotion of economic competition. This exception covers situations
where amendments to ordinances covering business competition could give rise to a claim under this bill.
Overall, since its inception, this current version of the bill has somewhat lessened potential financial costs
to local governments. Along this same vein, is the curing provision allowing local governments to cure
defects of a given ordinance or charter provision giving rise to the business damage cause of action.
Specifically, 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 bill in whole or in part, and as
a last measure, governments can give a waiver to the affected business.
SB 620 passed the full Senate by a vote of 22 - 14 and has been sent to the House for action.
HB 569: An amendment was filed for the House companion bill, HB 569, this amendment changes the
substance of the bill to match identically that of the Senate bill SB 620. Labeled the Local Business
Protection Act, this bill contains all the important provisions negotiated in committee and approved in the
Senate chambers. The scope of the bill includes a business damages calculation along two metrics regarding
future lost profit; ordinance exceptions not subject to business challenge; a prevailing party system for
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attorney fees; and the ability to cure by way of amendment, waiver to the business, and repealing part or
the whole amendment.
HB 569 has passed 2 of its 3 committees of reference.
Local Ordinances (SB 280 Senator Hutson / HB 403 Representative Giallombardo) SB 280 has passed the
Senate. The bill calls for local governments to create business impact statements with each bit of proposed
legislation. This impact statement must outline certain requirements, 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. As mentioned in the
companion bill covering local ordinances, SB 620, are prevailing party attorney fees. Thus, as things stand,
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 major exceptions to this bill are the following:
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
Upon a suit effectuated by a business on a local government, an automatic stay is placed on the legislation
until resolution by a tribunal. To avoid an automatic stay being imposed on legislation for meritless lawsuits
and subsequent appeals, this bill allows the automatic stay to be lifted upon certain conditions. The local
government can 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.
SB 280 has passed the Senate with a vote of 28 – 8 and has been sent to the House for action. HB 403 has
passed 1 of 3 committees of reference.
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,
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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).
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.
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 late filed amendment by the sponsor of the bill adds language concerning a cap on “collective registration
applications,” set at $100 per application. A “collective registration application” refers to licenses issued to
a group of houses or units found in separate locations that are represented by the same licensed agent, such
collectives may have a maximum of 75 houses or units per license and is restricted to counties within one
district. This signifies that up to 75 homes can be licensed at $100 with a collective registration application.
The amendments also addresses situations in which the Department of Business and Professional
Regulation, working in tandem with the code enforcement board, may subject owners to a temporary
licensure suspension following two or more code violations.
Finally, this amendment addresses the grandfather provision in that it would favor the least restrictive
measure. Any ordinance preceding the cut-off date of June 1st, 2011, will take effect unless an ordinance
enacted subsequent to that cut-off date proves to be less restrictive. This limits the applicability of local
legislation that should be “grandfathered in,” but instead can be overlooked in light of newer and less
invasive legislative measures.
Under this adopted amendment, the processing of these collective applications could be problematic for
local governments on two grounds. First, an application of up to 75 homes must be licensed by the local
government within 15 days of the processed application, this places a timing constraint on local
governments which will be increasingly difficult to meet given the sheer number of homes that must be
inspected and processed. Secondly, the costs associated with the requisite inspections and any
administrative processing fees would be borne by local governments; assuming there are 75 homes that
require inspection and licensure, the costs of inspection for each home would surely exceed the allotted
$1.33 per home from the collective registration fee. An impact of this bill; preemption of local government
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regulation of vacation homes may change the complexity of localities in Florida with an overabundance of
vacation rentals entrenching themselves in communities across the state. Opponents also voiced their fears
of big corporations purchasing homes and benefitting from such a “collective registration application” to
rent out large quantities of homes within the state. This bill must strike a balance between maintaining local
government control and addressing the issue of unlicensed rentals, and the threats posed by unlicensed
rentals.
SB 512 passed its first committee and has passed the Community Affairs Committee by a vote of 6 – 3. HB
325 has been voted on favorably in the Regulatory Reform Subcommittee by a vote of 10 – 6, its next
checkpoint is the Ways & Means committee.
Sovereign Immunity (SB 974 Senator Gruters / HB 985 Representative Beltran) HB 985 passed its first
committee in the House. 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.
SB 974: The Senate further revised their bill through a strike-all amendment which changes the recovery
limits on damages for tortious actions against a sovereign entity. The capped recovery for an individual
claim has been changed from $300,000 per person to $1 million per person; and changed for multiple claims
stemming from the same incident or occurrence, such claims will be capped at $3 million total as opposed
to $400,000 per incident in prior revisions of the bill.
Part of the bill that remained unchanged from prior revision, are the adjustments to the caps. Adjustments
will be made every 10 years starting from January 1st , 2023, 10 years sooner than the start date on a revision
preceding the amendment. Otherwise, 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.
Finally, the amendment requires the department to publish the adjusted liability limitation amounts on its
website, and which amounts shall apply to causes of action accruing on or after October 1 following the
adjustment date. Claims arising on or after October 1st 2022 shall be applicable for the purposes of this bill.
The impact of this bill would be felt on taxpayers, as there are associated costs incurred by raising the caps
on damages and costs of payment for insurance to cover such lawsuits against a sovereign entity. This
amendment has been proposed to match HB 985, the House companion bill which has been garnering
support in favor of the elevated damage caps. With these higher caps, it is clear that the damages sought by
way of actions for tortious injury suffered will increase to match these higher caps.
HB 985 having already passed its first committee, was voted on favorably in the House Appropriations
Committee by a vote of 23 – 1. With this strike-all amendment adopted, SB 974, passed in the Senate
Committee for Community Affairs by a vote of 6 – 3.
Session Dates: January 11 through March 11, 2022.