2011 Florida Legislative Session Recap
After passing a concurrent resolution to extend the legislative session until 6:00 p.m. on May 7, 2011, the Florida Legislature adjourned sine die precisely at 2:07 a.m. in the House and 3:35 a.m. in the Senate, finally bringing the 2011 Regular Legislative Session to a close. Eyes on Tallahassee is Holland & Knight’s annual summary of bills that passed during the 2011 session. We will issue a separate subsequent edition of Eyes on Tallahassee which will include bills of interest that did not pass during the 2011 session, but have a good chance of being considered again during the 2012 session which begins earlier next year on January 10, 2012, due to the reapportionment process.
For the 2011 session, a total of 295 bills passed both the House and Senate, specifically 245 general bills, 32 local bills, three concurrent resolutions, nine joint resolutions and six memorials.
Highlights of the 2011 session include passage of a $69.6 billion budget, which is $841.5 million less than the 2010-11 state budget, creation of a new Department of Economic Opportunity, passage of comprehensive "pill mill" legislation to curb prescription drug abuse, property insurance reform and a substantial overhaul of Florida's Growth Management Law, just to name a few of this session's priorities.
In this issue:
|Economic Development||Tort Reform and Litigation|
|Growth Management, Environment|
and Land Use
CS/SB 142 defines the terms "accident," "negligence action" and "products liability action." The legislation requires the trier of fact to consider the fault of all persons who contributed to an accident when apportioning damages in a products liability action alleging an enhanced injury. It also requires the jury instructions to apportion certain fault in a products liability action and provides legislative intent necessary to overrule a judicial opinion. The bill provides a legislative finding that fault should be apportioned among all responsible persons in a products liability action, etc. This bill, retroactively, overrides the Florida Supreme Court decision in D’Amario v. Ford Motor Company, 806 So. 2d 424 (Fla. 2001). EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
HB 331 revises rulemaking authority and responsibilities of the State Fire Marshal relating to educational and ancillary plants; revises requirements and procedures for inspections of buildings and equipment; abolishes special state firesafety inspector classifications and certifications; provides criteria, procedures and requirements for special state firesafety inspectors to be certified as firesafety inspectors; provides procedures, criteria and requirements for inspections of certain charter schools; provides reporting requirements; requires educational institution boards to submit certain facility site plans to certain local governmental entities for review and authorizes such entities to review site plans for compliance with certain provisions of Florida Fire Prevention Code (FFPC); specifies that site plans are not subject to local ordinances or local amendments to FFPC; and imposes additional requirements for certain boards relating to construction, renovation, or remodeling of educational facilities. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Residential Building Permits
CS/HB 407 prohibits local enforcing agencies and building code officials or entities from requiring certain inspections of buildings, structures, or real property as a condition of issuance of certain residential building permits, subject to certain exceptions. The bill also provides for application and for conditional repeal of the statute when the Secretary of State receives written certification from the chair of the Florida Building Commission that the commission has adopted an amendment to the Florida Building Code, which substantially incorporates these provisions as part of the code and the amendment has taken effect. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2012.
SB 410 reenacts a provision relating to the burden of proof required by the government in an action challenging an impact fee. The legislation provides a legislative finding of important state interest and provides for retroactive operation of the act. The bill also provides for an exception under specified circumstances. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law, and shall operate retroactively to July 1, 2009.
CS/CS/HB 701 shortens the notice period for certain actions; revises procedures for determining a governmental entity's final decision identifying allowable uses for property; defines what constitutes first application of law or regulation; clarifies waiver of sovereign immunity for liability; and provides for prospective application. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Extraterritorial Reciprocity in Workers' Compensation Claims
CS/HB 723 exempts certain employees working in the state and employers of such workers from Florida's Workers' Compensation Law under certain conditions; provides requirements for establishment of prima facie evidence that employer carries certain workers' compensation insurance; requires courts to take judicial notice of construction of certain laws; provides requirements for claims made in other states; provides criteria for employees to be considered temporarily in state; and provides for application. This bill was supported by the Jacksonville Jaguars and other professional sports teams to prevent former athletes from filing such claims in other states, such as California, that have more favorable workers’ compensation insurance laws. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Building Construction and Inspection
CS/CS/CS/HB 849 exempts rules that adopt federal standards and certain updates of, or amendments to, the Florida Building Code or the Florida Fire Prevention Code, from the requirement that the Legislature must ratify any rule that has adverse impact or regulatory costs which exceed certain criteria. The legislation specifies the national codes to form the foundation for state building standards and codes and revises provisions for amendment or modification of foundation code. The bill also revises the criteria for approval by the Florida Building Commission of technical amendments to code, etc. This bill also amends Chapter 489, Part I, F.S., to add glass and glazing contractors as Division II licensed contractors. In addition, it prohibits Division I contractors from offering or performing any repairs recommended in a home inspection report prepared by that contractor, but allows them until July 1, 2012, to apply for a “grandfathered” home inspectors license. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Liquefied Petroleum Gas Code
CS/SB 960 prohibits the Department of Agriculture and Consumer Services and other state agencies from requiring compliance with certain national standards for liquefied petroleum gas tanks, unless the department or those agencies require compliance with a specified edition of the national standards. The legislation provides for future expiration of such requirements and revises the term "propane" for purposes of the Florida Propane Gas Education, Safety, and Research Act, to incorporate changes to certain national standards. Similar provisions also passed as part of HB 849, described above. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Hillsborough County Public Project Bonds
HB 985 defers future repeal of Chapter 2004-414, Laws of Florida, which relates to projects for which payment and performance bonds may be waived for construction of a public building, for prosecution and completion of public work, or for repairs on public buildings or public work when the cost of project is at or below certain thresholds and when the contract for construction, completion, or repair is awarded pursuant to an economic development program established to encourage local small businesses to participate in county procurement programs. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
CS/CS/SB 1196 specifies that a lessor's interest in a property is not subject to a construction lien for improvements made by a lessee if certain documents containing specific information and meeting certain criteria are recorded in the official records of the county before the recording of a notice of commencement. The legislation overrides Everglades Electric Supply, Inc. v. Paraiso Granite, LLC, 28 So. 3d 235 (Fla. 3rd DCA 2010) and authorizes certain contractors and lienors to demand that a lessor serve verified copies of a lease prohibiting liability for improvements made by a lessee, etc. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is October 1, 2011.
Joint Legislative Organizations
SB 1204 repeals provisions relating to the Office of Program Policy Analysis and Government Accountability, the Joint Administrative Procedures Committee, the Legislative Committee on Intergovernmental Relations, the Joint Legislative Committee on Everglades Oversight and the Florida Government Accountability Act, which are now incorporated in the Legislative Joint Rules. The legislation repeals provisions relating to the creation of a joint select committee to review the findings and recommendations of the Century Commission for a Sustainable Florida for potential action, etc. EFFECTIVE DATE: The bill was approved by the Governor on May 5, 2011, and took effect on the same date. Chapter 2011-34, Laws of Florida
HB 1311 provides that certain rigid coastal armoring structures constructed during a specified time may remain without need to obtain DEP permit and under certain conditions. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
SB 2156 transfers the functions and trust funds of the Agency for Workforce Innovation to other agencies. Specifically, the bill transfers the Office of Early Learning Services to the Department of Education; transfers the Office of Unemployment Compensation and the Florida Housing Finance Corporation to Jobs Florida; and transfers the Office of Workforce Services to Jobs Florida. Additionally, the bill transfers the functions and trust funds of the Department of Community Affairs to other agencies, including the Florida Building Commission, retroactively, which is transferred to the Department of Business and Professional Regulation. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Residential Property Structural Soundness Evaluation
HB 4129 deletes the obsolete Citizens Property Insurance Corporation Residential Property Structural Soundness Evaluation Grant Program. EFFECTIVE DATE: The bill was approved by the Governor on April 27, 2011, and will take effect on July 1, 2011. Chapter 2011-12, Laws of Florida
HB 7003 reenacts provisions of law relating to affordable housing, portions of which were amended, created, or repealed by Chapter 2009-96, Laws of Florida. The bill also provides for retroactive operation with respect to these provisions. EFFECTIVE DATE: The bill was approved by the Governor on April 27, 2011, and took effect on the same date. Chapter 2011-15, Laws of Florida
CS/CS/HB 7005 increases the number of employer payroll service providers who qualify for access to unemployment tax information; revises provisions relating to statutory construction; requires that individual claiming benefits report certain information and participate in initial skills review; provides exceptions; clarifies "good cause" for voluntarily leaving employment; disqualifies certain persons for benefits; reduces amount and revises calculation of number of weeks of claimant's benefit eligibility; revises employer's unemployment compensation contribution rate by certain factors; revises application to conform to changes made by this act; provides employer payment schedule for 2012, 2013 and 2014 contributions; revises allowable forms of evidence in benefit appeals; revises judicial venue for reviewing commission orders; specifies that evidence of mailing agency document is based on date stated on document; revives, readopts and amends provision relating to temporary extended benefits; provides for retroactive application; establishes temporary state extended benefits for weeks of unemployment; provides for state extended benefits for certain weeks and for periods of high unemployment; provides severability; provides applicability; provides appropriations for purposes of implementation; and provides that act fulfills important state interest. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
During the 2011 session, the Florida Legislature passed seven proposed constitutional amendments which will appear on the November 2012 election ballot. These proposed constitutional amendments are in addition to several ballot reform measures which passed as part of a comprehensive elections bill.
If approved by voters, CS/HJR 1179 would include the federal ban on the use of all public funds for abortion in the Florida Constitution. It would also overturn all court decisions that rely on privacy rights in the Florida Constitution to reject abortion restrictions.
CS/HJR 7111, if approved by voters, provides that the Senate would confirm new justices to the Florida Supreme Court. The Legislature, by a simple majority vote, would be able to void court rules. Investigations of judicial misconduct, which are currently confidential, would be available to the Florida House prior to impeachment proceedings.
State Revenue Cap
CS/SJR 958 is a proposed constitutional amendment that would impose a spending and revenue cap on state government based on a formula that includes changes in population and inflation. Under the amendment, if the state collects money in excess of the revenue cap it would have to be used first for the state's budget stabilization fund and then to reduce school property taxes. The measure allows the Legislature to bypass the revenue cap with an extraordinary vote.
Veterans Property Taxes
CS/SJR 592 would expand a property tax break for injured veterans to include those veterans who did not live in Florida when they first entered military service.
If approved by voters, CS/CS/CS/CS/CS/HJR 381 would give a series of property tax breaks to first-time homebuyers, commercial property and those with second homes in Florida. First-time homebuyers would receive a homestead exemption worth up to $200,000 to be phased-out over five years. The amendment would also lower the cap on the amount a property appraiser can raise the assessed value of commercial properties and non-homestead second homes from 10 percent to 5 percent each year.
Health Insurance Mandates
Sponsored by Senate President Mike Haridopolos, CS/SJR 2 is a proposed constitutional amendment stipulating that no law can "compel, directly or indirectly," anyone to carry health insurance. This amendment would thwart the effect of the federal healthcare law by making clear that mandates don’t apply to Floridians.
CS/HJR 1471, if voters approve it in November, would repeal and replace Florida's Blaine amendment which is the current prohibition of state funding, directly or indirectly, for religious institutions. Florida is one of a majority of states with similar language. This provision has prevented school voucher opponents from enacting laws to provide state vouchers directly to private schools.
CS/CS/HB 1355, an omnibus elections bill, made several changes to the constitutional amendment process. One such change provides that those seeking petition signatures to put a constitutional amendment on the ballot will have only two years to collect the necessary 700,000 signatures which are required. The law currently provides a four-year window to gather the signatures. Another change provides that legal challenges to constitutional amendments proposed by the Legislature must commence within 30 days of the amendment being filed with the Secretary of State. Additionally, the Legislature will have the power to come up with more than one ballot summary for its proposed amendments in case of a court challenge. If all the summaries are rejected by a court, the Attorney General can draw-up a new ballot summary. EFFECTIVE DATE: The bill was approved by the Governor on May 19, 2011, and took effect on the same date. Chapter 2011-40, Laws of Florida.
The Governor ran on a prominent platform of job creation and SB 2156 is the end result. Essentially, the legislation dismantles some departments, collapses others and streamlines the whole process of economic development in an effort to make Florida more competitive for relocation and expansion of businesses in the state.
The legislation creates a new umbrella organization called the Department of Economic Opportunity (DEO) with a newly-created Secretary of Commerce position which would also serve in a dual-role as the President of Enterprise Florida (EFI). EFI is a long standing public-private agency that currently oversees economic development for Florida. At the same time, the bill transfers the Office of Tourism, Trade and Economic Development (OTTED), a portion of the soon to be dismantled Department of Community Affairs (DCA) and the Agency for Workforce Innovation (AWI) – all under the new DEO.
The sweeping legislative package also touches several other functions of government. Essentially, it sets in motion a streamlined approval process and oversight coordination of economic development, housing, growth management, community development programs and unemployment compensation.
Incentives for economic development projects must be approved or denied within 10 days and the legislation allows the Governor to approve a larger cash incentive award to prospective companies who consider relocating to Florida with less legislative oversight. This cash award comes from the Quick Action Closing Fund which has been in existence since 1999. The award must be recommended to the Governor within seven days and allows him to approve projects under $2 million. Projects between $2 million and $5 million will require only notification to the chair and vice chair of the Legislative Budget Commission, however, projects over $5 million must be granted approvals by these chairs.
The bill also delves into the negative economic impacts of the Deepwater Horizon oil spill by establishing a $10 million per year trust fund over three years to develop economic strategy in counties designated as disproportionally affected. The bill also directs how funds received by the state for damages caused by the spill may be directed. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
SEED Trust Fund
Of particular interest and of some concern to developers of affordable housing, HB 7205 establishes the State Economic Enhancement and Development (SEED) Trust Fund in the DEO. The bill redirects $75 million from documentary stamp tax revenues, currently dedicated to affordable housing trust funds, into the SEED Fund. The legislation also redirects substantial documentary stamp tax revenues currently deposited into the State Transportation Trust Fund into the SEED Fund. To lesson the impacts to the Florida Department of Transportation's work plan, the bill phases-in the monies to be redirected over a four-year period: $50 million the first year and between $65 million and $75 million in each subsequent year. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Pre-K Through Grade 12 Education
Digital Learning Now Act
CS/CS/HB 7197 requires public school districts to provide virtual education options to students from grades K-12. Virtual education options outlined in the legislation include the Florida Virtual School, approved Department of Education providers, school district operated programs and programs in an adjacent school district. The legislation also establishes a Virtual Charter School as a new option to parents and students and requires incoming high school freshmen to complete one online class to meet graduation requirements. Under the bill, various new requirements, including funding, have been adopted for virtual teaching, as well as the creation of virtual charter schools. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/CS/CS/SB 1546 revises the school grading standards for charter schools. The legislation also defines a high performing charter school and a high performing charter school system. To achieve the high performing charter school designation, charter schools will be required to earn two "A" grades in a three-year period. To earn the designation of a high performing charter school system, at least 50 percent of schools operated by one entity must have high performing status with no schools graded at "D" level or less. High performing status makes charter schools eligible for capital outlay state funding. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/CS/HB 1255 requires school districts to offer virtual education during and after the school day. The legislation revises the schedule for end-of-course examinations and eliminates the Algebra I end-of-course requirement. The bill amends the school grading formula to include end-of-year course exams by middle school students; authorizes school districts to provide a digital curriculum for students in grades 6-12; and establishes a gift ban for school board members and their relatives. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/HB 1331 revises the definition of a failing school for purposes of student eligibility for the Opportunity Scholarship Program. The bill changes the classification of a failing school from a school receiving an “F” twice in a four-year period to a school that receives a “D” or an “F” in the prior year. This expands the number of eligible schools to include 121 additional schools, bringing the total to 145 "failing schools." The bill provides parents with the opportunity to send their student to a higher performing school in the student's school district or any other school district across Florida. Parents that choose a district outside their current district will be responsible for transportation. The bill clarifies the scholarship eligibility due to a 2006 Florida Supreme Court ruling. Opportunity Scholarships may now only be used to attend a public school of choice. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
GROWTH MANAGEMENT, ENVIRONMENT AND LAND USE
Growth Management/Government Reorganization. Major revisions to the Growth Management Act were passed in the waning hours of the 2011 session as part of the Budget Conference Committee Report and were driven by the Governor's desire for significant government reorganization and the need to reduce regulation. SB 2156 relating to government reorganization eliminated the Department of Community Affairs (DCA) which has served as the state planning agency under the Growth Management Act. DCA was subject to Sunset Review this year and under the legislation its responsibilities were transferred to several other departments. The new state land planning agency will be the Department of Economic Opportunity. HB 7207 significantly changes growth management by giving local governments more discretion and reducing the oversight by state agencies. Now called the Community Planning Act, the bill sets forth a new expedited review for comprehensive plan amendments and limits review by state agencies. Concurrency is modified by eliminating transportation and school planning from concurrency requirements. Both the concepts of need and financial feasibility have been eliminated. Rule 9J-5 which set forth all of the details of comprehensive planning was repealed but many of its provisions, such as policies on urban sprawl, were pulled into the bill. Innovative planning techniques are encouraged, such as Sector Planning and Rural Lands Stewardship Areas and plans which allow a longer planning period. The revisions to growth management constitute a wholesale change in Chapter 163, F.S. Since 1985, terms like concurrency, consistency, level of service, compliance, financial feasibility, need and urban sprawl have all been part of the vocabulary of growth management and each of these concepts has been substantially revised by HB 7207. The Community Planning Act will change the way that each of Florida's counties, cities and school districts plan for growth.
Community Planning Act
Revisions to the growth management law were a legislative priority of Governor Scott, as well as House and Senate leadership. Several bills passed in the 2011 session will result in wholesale changes to Chapter 163, F.S. The House proposal was contained in HB 7129, while SB 1122 encompassed the Senate's version. The Governor proposed the elimination of the Department of Community Affairs (DCA) as part of a budget conforming bill on governmental reorganization. As the session came to a close, the Budget Conference Committee Report was approved, which included conforming bills to eliminate DCA and rewrite growth management statutes in light of the reorganization. The growth management revisions were included in HB 7207, while the governmental reorganization provisions were in SB 2156. Since 1985, terms like concurrency, level of service, compliance, financial feasibility, need and urban sprawl have all been part of the vocabulary of growth management. Each of these concepts has been substantially revised by HB 7207. EFFECTIVE DATE: If approved by the Governor, HB 7207 will be effective upon becoming law. EFFECTIVE DATE: If approved by the Governor, the effective date of SB 2156 is July 1, 2011.
New Names. While the title amendment to HB 7207 calls it "an act relating to growth management," the term has been almost entirely eliminated from the 349-page bill. Chapter 163 will now be called the Community Planning Act (CPA) and the state land planning agency is now within the new Department of Economic Opportunity (DEO).
New Intent. The bill sponsors called this a "home rule bill" and clearly the new intent of growth management is to strengthen the role of local government in comprehensive planning. The CPA provides localities with more discretion while limiting the role of state government in approving comprehensive plans. On the other hand, the legislation holds local governments accountable by adding a provision that comprehensive plan amendments could constitute an "inordinate burden" subject to review under the Bert J. Harris Property Rights Act.
Extension of Permits/Development of Regional Impacts (DRIs). As outlined below, the new legislation provides for additional two-year permit extensions and four- year DRI extensions. Extensions are not automatic, and requests must be submitted in writing to the relevant agency no later than December 31, 2011.
Rule 9J-5 Repeal. Since the adoption of the Growth Management Act, Rule 9J-5 established many of the details required of local comprehensive plans and was the guidepost to DCA and the Division of Administrative Hearings (DOAH) in making plan compliance determinations. HB 7207 specifically repeals Rule 9J-5 but incorporates many of its definitions and substantive provisions, such as urban sprawl.
Concurrency. The requirement that public facilities be in place at the time they are needed for new development was a hallmark of the Growth Management Act. The CPA keeps the concurrency requirements for potable water, solid waste, drainage and sanitary sewer, but eliminates the requirements for transportation, schools and parks, as well as financial feasibility requirements. Additional concurrency items are deemed optional and a local government may amend its comprehensive plan to delete transportation, schools and parks from its concurrency requirements. If a local government wishes to continue enforcing concurrency for optional items, it must do so as part of the capital improvements plan. These optional concurrency decisions must be based on appropriate data and analysis and a level of service standard. For transportation concurrency, development projects can satisfy concurrency requirements through a proportionate-share formula which deducts costs of providing for "transportation deficiencies" – a new term used in place of "backlog."
Plan Amendment-Agency Review. The comprehensive plan amendment process has been expedited and revised. Most amendments will go through the new, expedited process, while the former review process will remain in effect for Rural Land Stewardship Areas, Areas of Critical Concern, EAR-Based Amendments and newly-adopted comprehensive plans for a new local government (now known as the "state coordinated review process"). The limitation that localities may adopt plan amendments twice a year has been removed and state agency comments are now optional.
Under the standard, expedited process, local governments must adopt plan amendments within 180 days after receiving agency comments. The state planning agency has 30 days from the date it deems a plan amendment package complete to challenge the amendment; such a challenge is limited to the state agency review comments. The state planning agency's challenge must be based upon clear and convincing evidence.
Third-party challenges to plan amendments are permitted. However, the local government's decision will be reviewed under a fairly debatable standard and the state planning agency may not intervene in a third-party proceeding.
The bill provides for expedited review of proposed comprehensive plan amendments and also limits review by various state agencies as follows:
- Regional Planning Councils: adverse effects on regional resources or facilities identified in the strategic regional policy plan and extrajurisdictional impacts that would be inconsistent with the comprehensive plan of any affected local government
- Department of Environmental Protection: air and water pollution; wetlands and other surface waters; federal and state-owned lands and interest in lands, including state parks, greenways and trails, and conservation easements; solid waste; water and wastewater treatment; and the Everglades ecosystem restoration
- Department of State: historic and archaeological resources
- Department of Transportation: issues within its jurisdiction as it relates to transportation resources and facilities of state importance
- Fish and Wildlife Conservation Commission: fish and wildlife habitat and listed species and their habitats
- Department of Agriculture and Consumer Services: agriculture, forestry and aquaculture issues
- Department of Education: public school facilities
- Water Management Districts: flood protection and floodplain management, wetlands and other surface waters, and regional water supply
- State Land Planning Agency: important state resources and facilities outside the jurisdiction of other commenting state agencies; may include comments on countervailing planning policies and objectives served by the plan amendment that should be balanced against potential adverse impacts to important state resources and facilities
Small Scale Plan Amendment Process. The small scale plan amendment process applies where an amendment affects a use of 10 acres or less, and where the cumulative annual acreage for all small scale developments in a locality does not exceed 120 acres. HB 7207 removes the limitation that localities adopt small scale amendments no more than twice per year. Previously, a property granted a change within the prior 12 months could not be amended; this limitation has been deleted. The bill further loosens the small scale process by removing, for example, density limits for residential uses. Also, text changes relating to a small scale map change may now be processed simultaneously.
Plan Details. The baseline for comprehensive plans over the last 25 years has been that plans would be drafted as goals, objectives and policies, and be based upon the best available data and analysis. The revision states that the format is at the discretion of the local government but that it "typically is expressed as goals, objectives, policies, and strategies." All plans must be based upon "relevant and appropriate data and analysis" which must still be from "professionally-accepted sources" but will no longer be subject to the compliance review process. Current law requires "at least" two planning periods of the first five years and at least a 10-year period. The revision allows additional planning periods for specific components, elements or amendments. While there is no need analysis per se, the plan amendments must still be based upon permanent and seasonal population estimates or projects provided by BEBR.
Urban Sprawl. The Urban Sprawl Rule was a central component of 9J-5 subject to wide ranging interpretation by DCA, ALJs and planning experts. Much of the language of the rule has been incorporated into the bill. Future land use plans are required to "discourage the proliferation of urban sprawl." Each plan amendment is required to be analyzed in terms of 13 "primary indicators" of sprawl which consistent with the old rule, are "in the eye of the beholder." The result is a more objective standard: if at least four of the listed strategies are utilized, a project will not be deemed urban sprawl. Some of these strategies include no adverse effect on natural resources, promotes walkable compact communities, promotes conservation of water and energy, preserves open space and promotes transit-oriented development or a new town. The bill specifically utilizes the encouragement of innovative techniques to discourage sprawl.
Innovative Planning Techniques. The bill takes the "innovative planning techniques" language from 9J-5 to encourage planning innovations and promote vibrant communities. Innovative techniques include visioning, sector plans, rural lands stewardship, urban service boundaries and mixed-use development. Use of these strategies will mitigate against a project being declared urban sprawl. Two innovations are revised to encourage long-term large-scale planning: Optional Sector Plans and Rural Land Stewardship Areas (RLSAs).
For Optional Sector Plans, the bill removes the pilot project limitations and would allow these projects anywhere on at least 15,000 acres. The stated-purpose of sector planning is to promote long-term planning for conservation, development and agriculture on "a landscape scale" to facilitate protection of regionally significant resources. The plan consists of two parts: a long-term master plan adopted through the coordinated review process, and a detailed specific area plan adopted later by development order. This provision authorizes long-term planning horizons and eliminates need as a consideration.
Rural Lands Stewardship Areas are also encouraged on at least 10,000 acres outside of a municipality or urban service area. The bill removes procedural obstacles that DCA used to discourage RLSAs and establishes incentives for rural landowners to seek to establish an RLSA overlay. The plan uses a revised concept of "stewardship credits" to incentivize landowners by trading agricultural and environmental protection for increased density or intensity.
Public Schools. Amendments to the Growth Management Act in 2005 merged planning requirements for school districts with local government planning. Current law required a public schools facilities element, school concurrency and an interlocal agreement on school planning. The bill significantly changes these requirements by eliminating the requirements for school concurrency or for a public schools facilities element in the plan.
While interlocal agreements among the school district and local governments are still mandated, there is no requirement for approval by the state planning agency or for comments from the Department of Education. Local government may continue to enforce school concurrency, but only if data and analysis demonstrate that level of service standards can be met. Notably, portable classrooms may be used to achieve level of service standards. If school concurrency is continued by a local government, developers must be afforded a "proportionate share mitigation" process whereby a contribution of cash or land toward a capital improvement can satisfy concurrency. Requirements for co-location of schools and parks and for school siting have been eliminated.
Development of Regional Impacts (DRIs). In recognition of the 2011 real estate market conditions, the bill allows developers to receive a four-year extension on all commencement, phase, build-out and expiration dates for DRI projects, regardless of any previous extension. Developers must notify local governments by December 31, 2011, in order to receive the four-year extension.
The standards for designating a DRI "essentially built-out" were revised so that the amount of proposed development remaining to be built must be less than 40 percent of any applicable DRI threshold (formerly 20 percent). Several substantial deviation criteria have been relaxed with, for example, the trigger point for additional review of office development increasing to the greater of 15 percent or 100,000 gross square feet, with the previous numbers set at 10 percent or 66,000 gross square feet. Also, a proposed change to the proportionate share calculation does not constitute a substantial deviation so long as the local government agrees to the change. The legislation broadens local authority to deny a proposed change to include matters relating to local issues and provides the specific example of a change incompatible with a plat restriction.
The bill also limits the scope of the DRI review. Industrial areas, hotels/motels and theaters were removed from the list of DRIs. An exemption for solid minerals mining projects from DRI requirements was created and those mines must instead enter into agreements with the Department of Transportation concerning mitigation.
Dense Urban Land Area (DULA). The term "dense urban land area" has been deleted. Nonetheless, the areas previously designated DULAs remain protected and those local governments meeting the DULA criteria are still afforded DRI exemption. Also, the bill adds that a DRI lying within both DULA and non-DULA jurisdictions may be rescinded if at least 85 percent of the overall DRI lies within a DULA and the portion of development outside the DULA does not meet DRI thresholds.
Public Facilities/Capital Improvements. The bill tightens the definition of "public facilities" by deleting health systems and spoil disposal sites for maintenance dredging located in the intracoastal waterways, except for certain port-owned spoil disposal sites. An amendment to the comprehensive plan is no longer required to update the capital improvements schedule or to eliminate, defer, or delay the construction for any facility listed in the five-year schedule.
Urban Service Areas. The definition of "urban service area" was revised in the bill and no longer includes the description "built up." Where public facilities are not yet in place, the bill allows labeling of an urban service area if these facilities are identified in the capital improvements element. Formerly, these facilities needed to be committed in the first three years of the capital improvements schedule. Lastly, the bill added that the term includes any areas designated in the comprehensive plan, regardless of the local limitation.
Evaluation and Appraisal Report (EAR) Process. The process has been streamlined and statutory changes need only be addressed every seven years.
Voter Referendum. Referenda on local comprehensive plan amendments are prohibited, preventing reoccurrence of the disastrous results St. Pete Beach experienced after attempting referenda-style planning. Prior to the bill's passage, this prohibition only applied to referenda affecting five or fewer parcels.
Development Agreements. The duration of development agreements between a locality and developer has been extended from 20 to 30 years. The ability for parties to mutually extend this duration remains intact.
Permit and DO Extensions. The bill adds two new, additional two-year permit extensions, but the overall maximum, including previously granted extensions, cannot exceed four years. The holder of a valid permit or other authorization that is eligible for a two-year extension must provide written notice by December 31, 2011, to take advantage of the additional extension.
As an additional reference guide to the new legislation, Holland & Knight attorneys prepared an /files/Uploads/Documents/Alerts/Eyes On Tallahassee/OutlineofCommunityPlanningAct.pdf.
Rulemaking: Legislative Ratification of “Million Dollar” Rules
CS/CS/HB 1565 (2010) provides that rules with more than a million-dollar impact may not become effective until ratified by the Legislature. It was passed during the 2010 Legislative Session but vetoed by then-Governor Charlie Crist. The Legislature voted to override the veto during the Organizational Session in November, and provided that it applies to rules that become effective after November 17, 2010. EFFECTIVE DATE: The bill was approved by the Governor on November 16, 2010, and took effect on the same date. Chapter Law 2010-279, Laws of Florida
CS/CS/CS/HB 993 makes some additional conforming changes to implement the legislative ratification requirement. It also exempts certain rules from the legislative ratification requirement, including the adoption of amendments and the triennial update of the Florida Building Code, the Fire Prevention Code or the adjustment of tolls for toll roads. In addition, the bill requires agencies to undertake a comprehensive economic review of existing rules that became effective prior to November 17, 2010. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
Burden of Proof in Environmental Permitting Cases
CS/CS/CS/HB 993 also changes the burden of proof in third-party challenges to an agency’s decision to issue certain environmental permits. The bill provides that the challenger has the ultimate burden of persuasion to demonstrate that the approval should not be granted. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
Environmental Permitting at Seaports
CS/CS/CS/HB 399 includes several provisions designed to streamline and expedite environmental permitting at Florida’s ports. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
SB 410 essentially reenacts a 2009 law providing that when an impact fee is challenged, the government carries the burden of proof. The 2009 law was the subject of a pending legal challenge by a number of local governments. Shortly after the end of the legislative session, an appellate court determined that the challenge should be dismissed because the defendants are entitled to legislative immunity. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law and shall operate retroactively to July 1, 2009.
Agricultural Related Exemptions to Water Management Requirements
CS/CS/HB 421 revises the current agricultural permitting exemption to specify that agricultural activities may impede or divert the flow of surface waters or adversely impact wetlands and still be subject to the exemption, as long as that is not the sole or predominant purpose of the agricultural activity or alteration. The bill specifies that the exemption applies to lands classified as agricultural and to activities requiring an Environmental Resource Permit, in response to litigation holding otherwise. It is retroactive to July 1, 1984. The bill provides that a landowner may request a determination from the Department of Agriculture and Consumer Services in the event a dispute arises concerning the agricultural exemption and the determination is binding. Mitigation will be required to offset adverse effects caused by agricultural activities taking place prior to conversion to a non-agricultural use if those activities occur within four years preceding the latest conversion. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/CS/HB 701 expands the scope of the Bert J. Harris, Jr. Private Property Protection Act so that a temporary impact on development in effect for longer than one year may constitute "an inordinate burden" under the Act. The bill separates the definition of "existing use" into two parts, modifies the required time period for notice to a governmental entity before action may be filed, adds the payment of compensation to the list of remedies that may be offered by a governmental entity in a written settlement offer, specifies that a law or regulation is "first applied" to a property upon enactment and clarifies that the state waives sovereign immunity for causes of action brought under the Act. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011, and will apply prospectively only and does not apply to any claims or actions filed under s. 70.001, F.S., which are pending on the effective date of this act.
Water Management Districts
SB 2142 addresses water management district budgets and the related ad valorem taxes assessed by the agencies. While demand for regulatory services and co-funding of local water projects have declined on a widespread basis, district budgets have not. The legislature reduced the budget and resulting property taxes for four of the five water management districts by $210.5 million. The bill further requires that the Legislature annually review preliminary budgets for each district and cap the revenue a district may generate by ad valorem taxes. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
Medicaid Managed Care
This session lawmakers passed a far-reaching overhaul of the $22-billion Medicaid program. CS/HB 7107 and CS/HB 7109 are the Medicaid compromise bills agreed to by both chambers in the final days of the session. The bills require Medicaid patients to enroll in managed care plans beginning October 2013 for long-term care and 2014 for traditional healthcare, generally provided for women and children. The plan divides the state into 11 regions with competitive bidding among interested managed care plans. The new program provides a minimum and maximum number of plans for each region and requires at least one provider service network in each region.
This revised Medicaid program would allow the state to assess premiums for participation and also would allow for co-payments for inappropriate use of emergency rooms. The changes require Florida to submit a new Medicaid waiver to the federal government for approval before any changes contemplated in the legislation can be made. Before submitting the waiver, the state must seek public input through a number of meetings across Florida. EFFECTIVE DATE: If approved by the Governor, the effective date of both bills is July 1, 2011.
Medicaid Liability Reform
CS/HB 7109 includes limits on lawsuits against Medicaid providers. The measure limits non-economic damages for personal injury or wrongful death to $300,000 per claimant. The cap can be pierced if the plaintiff can prove by clear and convincing evidence that the provider acted wrongfully. Under the legislation, the definition of hospitals would include ambulatory surgical centers and mobile surgical facilities licensed under a hospital. No practitioner would be liable for more than $200,000 in non-economic damages unless the injured patient can prove by clear and convincing evidence that the practitioner acted wrongfully. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/CS/HB 395 makes operational changes to Shands Hospitals in Gainesville and Jacksonville, and gives the hospitals and their affiliated physicians and clinics sovereign immunity. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/SB 1676 gives the University of Miami and its employees sovereign immunity when working at Jackson Memorial Hospital. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law, and applies to all claims accruing on or after that date.
CS/CS/CS/CS/HB 479 allows doctors to buy insurance policies giving them the right to veto any offer for admission of liability, as well as the right to arbitrate any offer that is within the policy's limits. The bill also requires out-of-state doctors to register with the state before they can testify as expert witnesses in lawsuits. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is October 1, 2011, and applies to causes of action accruing on or after that date.
Healthcare Budget Line Items
SB 2000, the General Appropriations Act (GAA), increases the amount of spending for healthcare and human services by 5 percent, to nearly $30 billion. Funding was provided in the budget for the Medically Needy program and MEDS-AD program, as well as a $36.2 million increase for Florida KidCare and a reimbursement rate increase for dentists who serve children. The state budget cut hospital Medicaid reimbursement rates by 12 percent, county health departments rates by 10 percent, nursing home rates by 6.5 percent and developmentally-disabled provider rates by 3 percent. The budget also decreased the amount of grant monies set aside for biomedical cancer research from $50 million to $30 million. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
SB 2144, a healthcare budget conforming bill, decreases nursing home staffing requirements to 3.6 hours per resident each day, which will diminish the impact of the proposed nursing home budget reductions. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Federal Healthcare Reform
CS/SJR 2 is a proposed constitutional amendment that would thwart the effect of the federal law by making clear that mandates don’t apply to Floridians.
CS/HB 1193 creates a prohibition against requiring the purchase of health insurance. There are exceptions in the law for driving workers' compensation and any “activity between private persons.” EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
CS/CS/HB 7095 keeps intact pain management clinic regulations and provides enhanced criminal and administrative penalties targeting doctors and clinics engaged in prescription drug trafficking. The bill also bans dispensing of most abused narcotics, but makes exceptions for doctors who dispense the drugs for surgical purposes. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/HB 1039 permanently bans the sale and use of “bath salts.” The bill codifies an emergency rule promulgated by Florida Attorney General Pam Bondi prohibiting the sale of methylenedioxypyrovalerone. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
Property Insurance Reform
Reforming Florida's property insurance laws was a priority of lawmakers this session. CS/CS/CS/SB 408 increases the surplus requirements for insurance companies to help ensure that funds are available to pay claims when homeowners experience losses. The legislation also expands choices for consumers in the purchase of replacement coverage for their dwellings or personal property. In addition, the legislation reforms the sinkhole claims process to reduce frivolous claims, which drive up costs for homeowners, while continuing to make coverage available for those who experience actual damage from sinkholes. Specifically, the bill limits sinkhole coverage to primary structures and includes a requirement that sinkhole insurance proceeds must be used to fix the actual damages. The bill also reduces the time period to file windstorm and hurricane property claims from five years to three and establishes a two-year deadline to file sinkhole claims. Finally, the bill updates the "neutral evaluation process for the resolution of sinkhole claims" in an effort to reduce the time and expense of getting valid claims paid and avoid further litigation. A controversial provision in the legislation allows insurers to pass along increases of up to 15 percent to policyholders to help cover reinsurance costs, however, any proposed rate increase must have the approval of the Office of Insurance Regulation. Vocal opponents to the reinsurance provision are calling for the Governor to veto the legislation. EFFECTIVE DATE: The bill was approved by the Governor on May 17, 2011, and took effect on the same date. Chapter 2011-39, Laws of Florida
CS/CS/HB 7005, regarding Unemployment Compensation, addresses aspects of the state’s unemployment compensation (UC) system related to a claimant’s state and federal benefits, qualifications to receive state benefits, appeal of a benefit determination and employer UC taxes. The bill reduces the number of weeks of unemployment benefits from 26 to 23 weeks, which are available when the unemployment rate is 10.5 percent. The bill ties the number of available benefit weeks to the unemployment rate and changes the tax structure for employers beginning in 2011. The bill reduces most employers’ tax rates by revising their benefit ratio calculation downward by 10 percent which is used to compute their ultimate tax rate and allows employers to continue to have the option of paying their UC taxes in installments over the course of the year in 2012, 2013 and 2014. The provisions reduce the maximum amount of benefit available to $6,325, which keeps the maximum weekly benefit amount at $275 per week. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
Florida Retirement System
Effective July 1, 2011, SB 2100 provides for a 3 percent employee contribution for all Florida Retirement System (FRS) members. The legislation also increases the age and years of service requirements, the vesting period and length of the period used in calculating the Average Final Compensation for new FRS enrollees effective July 1, 2011. The legislation maintains the Deferred Retirement Option Program (DROP) however, employees entering DROP on or after July 1, 2011, will earn interest at a reduced accrual rate of 1.3 percent. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law, except as otherwise provided.
Local Retirement Plans
CS/CS/SB 1128 increases the transparency of local pension plan data and specifies other actions to address the sustainability of local pension plans. The legislation provides that:
- Local plans’ actuarial reports are required to include the present value of all benefits using a standard rate of return to promote comparisons between plans.
- DMS is required to post on their website a five-year history of each plan’s funded ratio and local plans are required to link to this DMS website.
- Actuarial or cash surpluses in a local plan may not be used outside the plan.
- Local plans may not reduce contributions required to fund normal cost.
- For all local plans, accrued sick or annual leave may not be included in calculations of retirement benefits; overtime may be included, but is capped at 300 hours.
- With approval of the members, firefighter and police plans are allowed to increase member contributions without increasing member benefits.
- The bill creates a Task Force on Public Employee Disability Presumptions to study and make recommendations on statutory disability presumptions.
- DMS is required to create a plan for providing standardized ratings for the financial strength of all local government defined benefit plans in Florida and provide recommendations to the Legislature in January 2012.
EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
TORT REFORM AND LITIGATION
CS/SB 142 defines the terms "accident," "negligence action" and "products liability action." The legislation requires the trier of fact to consider the fault of all persons who contributed to an accident when apportioning damages in a products liability action alleging an enhanced injury. Requires the jury instructions to apportion certain fault in a products liability action. Provides legislative intent to overrule a judicial opinion. Provides a legislative finding that fault should be apportioned among all responsible persons in a products liability action, etc. This bill, retroactively, overrides the Florida Supreme Court decision in D’Amario v. Ford Motor Company, 806 So. 2d 424 (Fla. 2001). EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law.
HB 7109 imposes limits for Medicaid patients in non-economic damages for personal injury or wrongful death to $300,000 per claimant. This cap can be pierced if the plaintiff can prove by clear and convincing evidence that the provider acted wrongfully. No practitioner is liable for more than $200,000 in non-economic damages unless the injured patient can prove by clear and convincing evidence that the practitioner acted wrongfully. Requires Agency for Persons with Disabilities to collect premiums or cost sharing for home and community-based delivery system; provides that implementation of Medicaid waiver programs and services authorized under Chapter 393, F.S., are subject to certain funding limitations; prohibits agency from imposing sanctions related to patient day utilization by patients eligible for care under Title XIX of Social Security Act for nursing home, effective on specified date; extends certificate-of-need moratorium for additional community nursing home beds, etc. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is July 1, 2011.
CS/CS/CS/CS/HB 479 requires the Department of Health to issue expert witness certificates to certain physicians and dentists licensed outside of state; provides application and certification requirements and exemptions for physicians and dentists issued certifications from certain licensure and fee requirements; provides additional grounds for disciplinary actions; requires the Boards of Medicine and Osteopathic Medicine to adopt certain patient forms specifying cataract surgery risks; provides for execution and admissibility of patient forms in civil and administrative proceedings; creates rebuttable presumption of disclosure; deletes requirement that medical malpractice insurance contracts contain certain information; provides that certain insurance information is not admissible as evidence in certain actions; requires that certain expert witnesses meet certain licensure or certification requirements; excludes healthcare provider's failure to comply with or breach of federal requirements from evidence in certain cases; requires claimant for medical malpractice to execute authorization form; allows prospective medical malpractice defendant to interview claimant's treating healthcare provider without presence of claimant or claimant's legal representative and requires 10 days' notice before such interviews; authorizes defendant to take unsworn statements of claimant's health care provider; requires that presuit notice for medical negligence claims be accompanied by authorization for release of protected health information; authorizes healthcare facility to use scientific diagnostic disease methodologies that use information regarding specific diseases in healthcare facilities and that are adopted by facility's medical review committee; requires dismissal of claim if such authorization is not completed in good faith; and provides immunity for volunteer team physicians. EFFECTIVE DATE: If approved by the Governor, the effective date of this bill is October 1, 2011, and applies to causes of action accruing on or after that date.
CS/SB 1676 provides that specified provisions relating to sovereign immunity for healthcare providers do not apply to certain affiliation agreements or contracts to provide certain comprehensive healthcare services. The bill provides that certain colleges and universities that own or operate a medical school or any of its employees or agents providing patient services pursuant to a contract with a teaching hospital are agents of the teaching hospital and are immune from certain liability for torts, etc. EFFECTIVE DATE: If approved by the Governor, this bill will be effective upon becoming law, and applies to all claims accruing on or after that date.
Committee Substitute (CS) – A Senate or House bill going through the committee hearing process sometimes has numerous amendments, or the amendments change the original concept of the bill. In these instances the bill is rewritten and becomes a “committee substitute.” The next committee of reference may again rewrite the bill and more than one bill may be combined. The committee substitute continues to carry the identifying number(s) of the original bill(s) filed. A CS/CS is a Committee Substitute for Committee Substitute.
Enacted – The Florida State Constitution requires that each bill be prefaced by the phrase: “Be It Enacted by the Legislature of the State of Florida” which is referred to as the enacting clause. Enacted legislation refers to a bill which has been passed into law.
Enrolled Bill (ER) – This is a Senate or House measure approved by both houses and signed by the legislative officers which is then sent to the Governor for action and transmittal to the Secretary of State or filed directly with the Secretary of State. The bill is enrolled in the house of origin under the supervision of the Secretary of the Senate or the Clerk of the House.
Joint Resolution (SJR, HJR) – This is a resolution that is the only authorized method by which the Legislature may propose amendments to the Florida Constitution. If passed, the proposed amendment would appear on a statewide ballot for voter approval or rejection. It must pass each house by a three-fifths vote of the membership.
Law – An act becomes a law when the Governor either approves it or fails to sign or veto it within the period specified in the Florida State Constitution. An act also can become a law when a subsequent Legislature overrides a veto by the Governor. While the Legislature is in session, the constitution allows a seven-day period following presentation of a bill to the Governor within which the Governor can sign, allow to become law without his signature or veto the bill. If the Legislature adjourns sine die before an act is presented to the Governor or while an act is in the Governor’s possession, the Governor has 15 days following the date of presentation in which to take action. The identifying number assigned by the Secretary of State to a bill that has been enacted or passed into law is referred to as the Chapter Law. The Chapter Law number indicates the year passed and the printing number. For example, Chapter 2011-100 represents the 100th law printed in the year 2011. Chapter laws are compiled and published annually in the Laws of Florida.