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WEEK FIVE
April 1-5, 2019
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I like to gamble, but like most gamblers, I try to maximize my odds. In those instances when doing so is not possible, like a coin flip, I minimize my exposure – thus minimizing my losses.
With games like Texas Hold ‘Em or Omaha, the odds are the same for players on any given hand as to whether you are dealt a pair of aces. What makes the difference is the level of skill you bring to the table and how you play those cards. Another variable is whom you are playing against. Playing at a casino against people you don’t know is very different than playing at home with your friends.
How you play your cards includes considerations such as how much money you have or are willing to potentially lose, your table position (first or last to bet) and the other cards out there. Having great cards certainly helps, but it in NO way guarantees that you will win. Likewise, having a hand that is less than desirable doesn’t mean you automatically lose. You play the cards you are dealt and, as the Kenny Rogers song advises, “You gotta know when to hold ‘em, and know when to fold ‘em, know when to walk away and know when to RUN!”
On Wednesday, we hit the halfway point of the 2019 session. We have drawn some bad cards in the form of preemption bills that seem on the fast track. But despite the deck seemingly being stacked against us, we still have lots of chips to play and a seat at the table. As the old gamblers’ adage goes, we still have a chip and a chair, so deal ‘em out! Even with the less desirable hand against an opponent like the Florida Legislature with the powers to preempt and mandate, we must continue to play our hand to the best of our ability through advocacy and engagement. Although
the hand you were dealt cannot be changed, the way you play it can be.
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House and Senate Pass Budgets—Let the Negotiations Begin!
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The Florida House and Senate have both passed their respective budget proposals for FY 2019-20. The Florida House plan provides $89.9 billion in spending. -- the vote on the House plan was 105-8. The Senate plan, which passed unanimously, provides $90.3 billion. House and Senate leaders will have to agree on budget policy and spending if the session is going to end on time May 3. Negotiations between the two chambers will resolve the $400 million difference and match up the spending proposals. These negotiations, known as budget conference, could begin any time but in order to end the session on time (May 3) they will have to reach a compromise at least 72 hours prior to the final vote as mandated by the constitution.
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Bert Harris Act/Private Property Rights
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On Thursday, the House Commerce Committee passed
CS/HB 1383
(
Grant, J.
). The bill significantly amends the Bert J. Harris Act and substantially handicaps local government ability to resolve these claims. The bill requires any settlement reached on a Harris claim that involves the issuance of a variance or exception to a regulation on a residential property be automatically applied by the government entity to all similarly situated residential properties that are subject to the same rules or regulations. Similarly situated is not defined in the bill. Therefore, the legislation will have a severe chilling effect on the settlement of Harris claims.
Additionally, the bill limits the timeframe for government entities to respond to Harris claims from 150 days to 90 days and increases the likelihood of paying the property owners attorney fees and removes prevailing party fees if the government entity prevails. Lastly, CS/HB 1383 would include business damages as part of the calculation of damages a property owner could receive. Current law only awards damages for loss of property value.
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Telecommunications Bill Further Strips Local Authority
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CS/CS/HB 693
(
Fischer
) was taken up and passed on Tuesday, April 2 by the
House Ways and Means Committee
by a 14-1 vote. (Please take time to THANK
Rep. Anna Eskamani
(D-Orlando) for her NO vote). As originally introduced, the bill reduced the tax rate, by 1 percent, on the state communications services and direct-to-home satellite services. The CST rate cut language has now be removed from both bills. The bill, and its Senate companion,
CS/CS/SB 1000
(
Hutson
), include language OPPOSED by the League which repeal important, agreed to provisions of the 2017 Wireless Facilities law which was ostensibly passed to hasten the implementation of 5G technology around the state. Both bills further strip cities of the ability to regulate the placement of communications equipment in public rights-of-way. The following provisions were added to the bill: significant changes to section 337.401(3) relating to the registration process; removal of language from 2017 relating to undergrounding; extensive provisions on the placement of new poles in rights of way; attorneys fee provision to industry; and numerous new limitations on city/county authority in the permitting process/regulation of rights of way. The League is OPPOSED to these bills.
CS/CS/SB 1000 (Hutson) is scheduled to be heard in the Senate Finance and Tax Committee on Tuesday, April 9 at 4:00 p.m. We also expect CS/CS/HB 693 to be up in the
House Commerce Committee
. Watch for a FLC Legislative Alert on Monday, April 8.
(
Hughes
)
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Short-Term Rentals Bill Continues Moving
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HB 987
(
Grant
) passed its second committee of reference on Monday, the
House Government Operations and Technology Appropriations Subcommittee
by a 9-2 vote. The bill generated significant opposition with members expressing concerns with the bill and recommending changes to the bill sponsor. The bill would void any existing short-term rental regulations, even those grandfathered in 2011, and would preempt the regulation of these properties to the state. The bill now heads to its final committee stop, the
House Commerce Committee
.
The Senate companion,
SB 824
(
Diaz
), is scheduled to be heard by the
Senate Innovation, Industry, and Technology Committee
, on Wednesday, April 10 at 1:30 p.m. Watch for a FLC Legislative Alert on Monday, April 8.
The League is OPPOSED to these bills. (
Cook
)
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Attorney Fees Bills Approach Final Senate Committee Stop
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CS/CS/SB 1140
(
Hutson
) and
CS/CS/HB 829
(
Sabatini
) require courts to award attorney fees and costs against a local government if the local government's ordinance is determined by a court to have been preempted by state law. According to bill sponsors, the purpose is to deter "rogue" local governments that adopt or enforce ordinances in willful disregard of clear legislative preemptions. Both bills limit the fee awards to legal actions involving express legislative preemptions (rather than implied). CS/CS/SB 1140 differs from CS/CS/HB 829 in that it would provide for an award of fees to the prevailing party (which could include the local government) in such challenges. The League opposes the bills. CS/CS/SB 1140 passed the Senate Community Affairs Committee this week 3-2, and will be heard by the
Senate Rules Committee
. CS/CS/HB 829 is in its final stop in the House Judiciary Committee. (
O’Hara
)
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Tree Bill Trimmed by Senate Committee
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CS/SB 1400
(
Albritton
) and
CS/HB 1169
(
La Rosa
) impose restrictions on enforcement of local government tree ordinances. The bills prohibit a local government from enforcing a tree regulation on residential property that requires a permit, an application, the provision of notice or a fine, if: (1) the property is located in a county subject to a tropical storm watch or warning or hurricane watch or warning, or is under a storm-related declared state of emergency, and the property owner has determined the tree is damaged, diseased, infested or presents a danger to persons or property; and (2) the property owner has obtained from a certified arborist proof the tree is damaged, diseased, infested or presents a danger. CS/SB 1400 was substantially amended this week in the Senate Community Affairs Committee. As amended, CS/SB 1400 would prohibit the enforcement of a local government tree ordinance against a residential property owner under specified conditions during the period of March 1 to June 1 of each year. During this three-month period, notwithstanding a local tree ordinance, a residential property owner would be authorized to trim, prune or remove a tree, or to trim or prune (but not remove) a specimen, heritage or patriarch tree, if a certified arborist provides documentation the tree is a danger to persons or property. The bill exempts endangered species from its provisions.
CS/SB 1400 will be heard Monday, April 8 by the Senate Judiciary Committee.
CS/HB 1169 passed the House Commerce Committee this week with no changes. It has a final stop in the House State Affairs Committee. The League remains opposed to the bills. (
O’Hara
)
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Bypassing Zoning Ordinances for Charter Schools
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HB 7095
(
Aloupis
) passed the
PreK-12 Appropriations Committee
on Monday. The bill contains a provision that allows entities such as houses of worship, colleges or universities, and community service organizations the ability to provide space or land to a charter school within their property or facilities under their preexisting zoning and land use designations without obtaining any local approval, rezoning or a land use change.
HB 7095 will be heard in the Education Committee on Tuesday, April 9 at 2:00 p.m.
The League OPPOSES this bill strictly based on the charter school zoning and land use provisions.
(Branch)
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This week,
CS/HB 145
(
Fetterhoff
) passed the House Commerce Committee. The bill preempts any local ordinance or regulation of vegetable gardens on residential property. Some cities have adopted ordinances regulating the size or placement of vegetable gardens in the front yards of homes. While local governments would be preempted from prohibiting vegetable gardens, the bill allows for local ordinances to regulate the use of water during droughts as well as fertilizer use or invasive species control. The bill would not apply to homeowners association regulations or deed-restricted communities. The bill was previously amended to define vegetable garden to include vegetables, fruits, herbs or flowers grown for human consumption. The Senate companion bill,
CS/SB 82
(
Bradley
) has already passed the Senate. (
Cruz
)
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Impact Fee Legislation Awaits Action by Governor
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CS/HB 207
(
Donalds
) has passed the House and Senate and is now awaiting action by the Governor. The bill requires the collection of impact fees occur no earlier than the issuance of a property’s building permit. The bill also codifies the ‘dual rational nexus test’ for impact fees as articulated in case law. This test requires an impact fee to have a reasonable connection, or rational nexus, between 1) the proposed new development and the need and the impact of additional capital facilities and, 2) the expenditure of funds and the benefits accrued to the proposed new development. Additional conditions of the bill include earmarking impact fee funds for capital facilities that benefit new residents and prohibiting the use of impact fee revenues to pay existing debt unless specific conditions are met. The bills exempt water and sewer connection fees from the provisions of the legislation. (
Cruz
)
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Costly Rulemaking Authority for DFS
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Home Rule Stays on Board in Senate Scooter Bill
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HB 107
(
Toledo
) would make it a primary offense if law enforcement pulled over a driver for texting while driving. The bill passed out of
State Affairs Committee
, its last committee stop and is now on the Calendar for Second Reading. The League SUPPORTS this bill.
(Branch)
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Inclusionary Housing Ordinances
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CS/HB 7103
(
Fisher
)
prohibits a local government from adopting and enforcing inclusionary housing ordinances or regulations. Currently, an inclusionary ordinance is activated when a developer is seeking a variance. The bill would also put in place a 90-day shot-clock requirement for local governments to approve, approve with conditions or deny the application for a development permit. CS/HB7103 was heard in
Judiciary Committee.
The League OPPOSES this bill.
(Branch)
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Water Quality Bill Advances With Fewer Penalties for Local Governments
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CS/CS/SB 1758
(
Mayfield
) and
HB 1395
(
Raschein
) address water quality issues relating to nutrient pollution associated with wastewater treatment facilities, septic tanks, and residential fertilizer use. The bills require all local governments to adopt and enforce the state’s Model Fertilizer Ordinance. They require wastewater treatment facilities to upgrade to advanced waste treatment, and require local governments enforce septic-to-sewer connections and septic tank remediation requirements. In addition, CS/CS/SB 1758 would, effective 2024, prohibit the discharge of wastewater into the Indian River Lagoon that has not been subjected to advanced waste treatment. To help offset the steep cost of these required upgrades, the bills create a grant program (local governments would need a 50 percent match to be eligible) in DEP. Notably, the bills do not identify a source of funding for this grant program or provide any assurances that funding would be at a level necessary for statewide compliance by local governments. Local governments that fail to comply with the bills’ requirements would be prohibited from approving any building permits for new construction and could face additional penalties from DEP. The bills also impose penalties on wastewater facilities for sanitary sewer overflows. CS/CS/SB 1758 was amended in the Senate Community Affairs Committee to remove the prohibition on building permit issuance for local governments that fail to meet the bill’s requirements. Instead, noncompliance would render the local government ineligible for wastewater grant funding and may subject the government to additional civil penalties from DEP. CS/CS/SB 1758 has a final stop in the Senate Appropriations Committee. The House bill has not moved. (
O’Hara
)
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Rebranding Local Fees to Taxes Moves
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CS/HB 7053
(
Ways and Means Committee
) passed (14-6) the
House State Affairs Committee
. The bill will require, on a prospective basis, any new impositions or rate increases of certain local fees to be titled as and represented to the public as “taxes.” The local fees that will be impacted are special assessment, impact or mobility fees, franchise fees and charges to pay for the cost of regulation. The bill expressly provides that it does not affect, amend or alter a city’s home rule authority under the Florida constitution or other provisions of law to impose the affected local government levies. The
Senate Finance and Tax Committee
temporarily postponed the new Senate companion,
SB 7104
. (
Hughes
)
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CS/SB 668
(
Perry
), a bill altering the process by which a city declares a property a public nuisance, passed the
Senate Criminal Justice Committee
on Monday. The bill allows for shorter notice where the public nuisance presents a danger of immediate and irreparable injury, but generally extends and increases the frequency of notice of a violation so a property owner has sufficient time to receive notice and correct violations. Finally, the bill provides that a rental property that is declared a public nuisance is not subject to forfeiture if the nuisance was committed by someone other than the owner and the owner commences rehabilitation of the property within 30 days after the property is declared a nuisance. The League is MONITORING this bill. (
Cook
)
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CS/CS SB 1792
(
Gruters
) passed unanimously through its second committee of reference, the
Senate Infrastructure and Security Committee
, on Tuesday. The bill prohibits cities from enacting ordinances or rules that impose fees or charges on authorized wrecker operators or towing businesses for towing, impounding, or storing vehicles. The bill also prohibits a city from requiring a towing business to accept checks as a form of payment and from authorizing attorney fees or court costs in connection with the towing of vehicles from private property. The bill was amended to grandfather existing county towing programs in Palm Beach, Broward, and Dade counties. (
Cook
)
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CS/CS/HB 1235
(
Fine
) passed its second House committee on Wednesday. The bill allows a city the option to publish legally required advertisements and notices on its website in lieu of purchasing space in a newspaper if it is determined that online publication would result in a cost savings for the government. The Senate companion
,
SB 1676
(
Baxley
), has yet to be heard in its first committee of reference. The League SUPPORTS these bills. (
Cook
)
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STRATEGY CALL ON MONDAY MORNING
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Please participate in our 30-minute conference call every Monday during session (March 5 through May 3) at 9:00 a.m. EST. You will be updated on what issues the legislature will be discussing in the upcoming week and what advocacy efforts might be needed.
CALL IN NUMBER: 1-888-585-9008
CONFERENCE ROOM #: 301-563-714
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STAY INFORMED. STAY ENGAGED.
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