CS for CS for SB 1012                            First Engrossed
       
       
       
       
       
       
       
       
       20091012e1
       
    1                        A bill to be entitled                      
    2         An act relating to state lands; amending s. 253.01,
    3         F.S.; authorizing the use of moneys in the Internal
    4         Improvement Trust Fund for the protection and
    5         restoration of water resources; amending s. 253.03,
    6         F.S.; providing rulemaking authority to the Board of
    7         Trustees of the Internal Improvement Trust Fund with
    8         respect to the uses of sovereignty submerged lands;
    9         defining lease types; providing for fees and lease
   10         rates; providing for exemptions; detailing minimum
   11         compliance standards; providing for a report; amending
   12         s. 253.04, F.S.; providing for the assessment of
   13         fines; amending s. 895.09, F.S.; conforming a cross
   14         reference; providing an effective date.
   15  
   16  Be It Enacted by the Legislature of the State of Florida:
   17  
   18         Section 1. Subsection (2) of section 253.01, Florida
   19  Statutes, is amended to read:
   20         253.01 Internal Improvement Trust Fund established.—
   21         (2) All revenues accruing from sources designated by law
   22  for deposit in the Internal Improvement Trust Fund shall be used
   23  for the acquisition, management, administration, protection, and
   24  conservation of state-owned lands, as well as the protection and
   25  restoration of water resources.
   26         Section 2. Subsection (7) of section 253.03, Florida
   27  Statutes, is amended, present subsections (8) through (17) of
   28  that section are renumbered as subsections (10) through (19),
   29  respectively, and new subsections (8) and (9) are added to that
   30  section, to read:
   31         253.03 Board of trustees to administer state lands; lands
   32  enumerated.—
   33         (7)(a) The Board of Trustees of the Internal Improvement
   34  Trust Fund is hereby authorized and directed to administer all
   35  state-owned lands and shall be responsible for the creation of
   36  an overall and comprehensive plan of development concerning the
   37  acquisition, management, and disposition of state-owned lands so
   38  as to ensure maximum benefit and use. The Board of Trustees of
   39  the Internal Improvement Trust Fund has authority to adopt rules
   40  pursuant to ss. 120.536(1) and 120.54 to implement the
   41  provisions of this act.
   42         (8)(b) With respect to administering, controlling, and
   43  managing sovereignty submerged lands, the Board of Trustees of
   44  the Internal Improvement Trust Fund also may adopt rules
   45  governing all uses of sovereignty submerged lands by vessels,
   46  floating homes, or any other watercraft, which shall be limited
   47  to regulations for anchoring, mooring, or otherwise attaching to
   48  the bottom; the establishment of anchorages; and the discharge
   49  of sewage, pumpout requirements, and facilities associated with
   50  anchorages. The regulations must not interfere with commerce or
   51  the transitory operation of vessels through navigable water, but
   52  shall control the use of sovereignty submerged lands as a place
   53  of business or residence.
   54         (9)Rules adopted for the uses of sovereignty submerged
   55  lands, except those uses provided in s. 253.51 and ss. 253.67
   56  253.75 and s. 311.09(1), shall provide at a minimum, for the
   57  following:
   58         (a) A standard lease term of at least 10 years.
   59         (b) An extended-term lease not to exceed 25 years, where
   60  the use of the sovereignty submerged lands and the associated
   61  existing or proposed structures on sovereignty submerged lands
   62  have or will have an expected life, or amortization period,
   63  equal to or greater than the requested lease term. Such
   64  extended-term leases shall be limited to those facilities that
   65  provide exclusive access to public waters by the general public
   66  on a first-come, first-served basis; that are constructed,
   67  operated, or maintained by a governmental entity or funded by
   68  government-secured bonds having a term greater than or equal to
   69  the requested lease term; or for which the applicant
   70  demonstrates the existence of an extreme hardship that is unique
   71  to the applicant if such hardship is not self-imposed or the
   72  result of any law, ordinance, rule, or regulation.
   73         (c) For purposes of this section, the term “first-come,
   74  first-served” means any water-dependent facility operated on
   75  state-owned submerged land, the services of which are open to
   76  the general public by at least 90 percent of all slips over the
   77  state-owned submerged land, with no qualifying requirements such
   78  as club membership, stock ownership, or equity interest, with no
   79  longer than 1-year rental terms, and with no automatic renewal
   80  rights or conditions. For purposes of this section, all other
   81  leases are considered private.
   82         (d) A nonrefundable application fee of $250 for a private
   83  residential single-family dock or pier. All other facilities
   84  shall remit an application fee of $500 unless a different fee is
   85  specifically provided for in general law.
   86         (e) New private leases, expansions of private leases, and
   87  lease conversions from a first-come, first-served basis to
   88  private use shall be assessed a one-time premium or qualify for
   89  a waiver of payment in accordance with rule 18-21, Florida
   90  Administrative Code. The one-time premium shall be 10 percent of
   91  the applicant’s projected retail price or the current market
   92  price, whichever is greater, to an end user for the use of the
   93  slips within the leased area. For applicants proposing to rent
   94  or lease the slips, or proposing to provide the slips to members
   95  at a below-market rate, the one-time premium shall be based on
   96  the current market price. The projected pricing shall be
   97  provided by the applicant and must be itemized by slip. All
   98  prices provided shall be reviewed by the department and verified
   99  with market data as reflective of the market prior to approval.
  100         1. An appraisal report is required if the department is
  101  unable to verify with market data and accept the applicant’s
  102  pricing documentation. The appraisal report conditions shall
  103  assume that the income to the lease area is at market rates. If
  104  an appraisal report is required, it shall be obtained by the
  105  department and paid for by the applicant.
  106         2.For all private lease expansions, the surcharge shall be
  107  charged only on the expansion area.
  108         (f)1.Annual lease fees shall be as follows:
  109         a.For leases located outside an aquatic preserve and open
  110  on a first-come, first-served basis, 10 cents per square foot or
  111  a minimum of $250. All other leases located outside an aquatic
  112  preserve shall be 30 cents per square foot or a minimum of $500.
  113         b.For leases located within an aquatic preserve and open
  114  on a first-come, first-served basis, 30 cents per square foot or
  115  a minimum of $500. All other leases located within an aquatic
  116  preserve shall be 60 cents per square foot or a minimum of
  117  $1,000.
  118         c.For leases of facilities that require a location
  119  adjacent to the water to provide services, such as boat repair
  120  and manufacturing, seafood purchasing, and public utility
  121  service, 15 cents per square foot. If these facilities are
  122  located in an aquatic preserve, the rate shall be 30 cents per
  123  square foot.
  124         2. The annual lease fees provided for in this paragraph
  125  shall be revised every 5 years beginning March 1, 2014, and
  126  increased or decreased based on the average change in the
  127  Consumer Price Index, calculated by averaging the Consumer Price
  128  Index over the previous 5-year period. Adjustments to the fees
  129  shall be to the nearest cent for the per-square-foot rates and
  130  to the nearest $25 for the minimums. Any increase or decrease
  131  may not exceed 10 percent and may not have the effect of
  132  lowering the fees below those established in the paragraph.
  133         3. There shall be a late payment assessment for lease fees
  134  or other charges due which are not paid within 30 days after the
  135  due date. This assessment shall be computed at the rate of 12
  136  percent per annum, calculated on a daily basis for every day the
  137  payment is late.
  138         4. For the purposes of this paragraph, the additional
  139  charges provided in subparagraph b. shall not apply to existing
  140  facilities in aquatic preserves that were excluded from the
  141  additional rate in accordance with rule 18-21.011, Florida
  142  Administrative Code.
  143         (g) Government, research, or education facilities are
  144  exempt from the annual lease fees in paragraph (f) except as
  145  otherwise defined by rule.
  146         (h) A community-based social club shall be classified as
  147  “first-come, first-served” for the purposes of assessing fees
  148  pursuant to this subsection if the club is designated as
  149  qualified under s. 501(c)(7) by Title 26, subtitle A, chapter 1,
  150  subchapter F, part 1, s. 501 of the United States Internal
  151  Revenue Code. The club must be organized for pleasure,
  152  recreation, and other similar nonprofitable purposes and
  153  substantially all of its activities must be for these purposes,
  154  and the club may not discriminate based on race, color,
  155  religion, or handicap. The club may not convey to any member the
  156  exclusive use of a club wet slip and all wet slips must be
  157  available on a first-come, first-served basis to all members in
  158  a specific membership category. Any publications related to
  159  membership and wet slip rental contracts must state that the wet
  160  slips are available on a first-come, first-served basis to all
  161  members in a specific membership category and that the club does
  162  not discriminate based on race, color, religion, or handicap.
  163  Upon the date the club is found to have conveyed, deeded, leased
  164  long term, included an automatic renewal or conditions, or
  165  issued in any form an exclusive right to use a wet slip, the
  166  submerged land lease fee shall revert to the private rate
  167  pursuant to this subsection and be subject to retroactive
  168  private lease fees. The club shall provide recreational,
  169  educational, or charitable activities at least once annually
  170  which are open to the general public beginning within 365 days
  171  after the lease anniversary date.
  172         (i) The department shall provide a draft lease to the
  173  applicant 14 days prior to the scheduled hearing before the
  174  board of trustees. The applicant may waive this requirement.
  175         (j) Rules adopted by the board of trustees must also
  176  provide for:
  177         1. The assessment of fines and penalties for violation of
  178  lease conditions. Such fines or penalties shall be in addition
  179  to those authorized pursuant to s. 253.04.
  180         2. An exemption from the annual fees for:
  181         a. Events that may require the installation and use of
  182  temporary structures, including docks, moorings, pilings, and
  183  access walkways on sovereign submerged lands solely for the
  184  purposes of facilitating boat shows or boat displays in, or
  185  adjacent to, established marinas or government-owned upland
  186  property.
  187         b. First-come first-served facilities that have a
  188  contractual arrangement with a county or municipality and can
  189  demonstrate financial hardship to the Board of Trustees.
  190         c. Those facilities that qualify for Consent by Rule or
  191  Letter of Consent pursuant to rule 18-21, Florida Administrative
  192  Code and shall also be exempt from paying application fees.
  193         3.Compliance methods to be used by the department and
  194  applicants. At a minimum, the applicant must supply an aerial
  195  photograph of the lease area which is date-stamped and shows the
  196  structures. The first aerial photograph shall be given to the
  197  department within the first year of the lease term and an
  198  additional aerial photograph shall be provided to the department
  199  within 60 days after the 5th year of the lease.
  200         (k)The Department of Environmental Protection in its
  201  capacity as staff to the Board of Trustees shall review and
  202  provide a report with recommendations, by February 1, 2010, to
  203  the Board of Trustees and the Legislature concerning the
  204  following:
  205         1. The development of a method which allows for fees to be
  206  modified based on geographical price differentials.
  207         2. Optional methods for determining the square footage for
  208  facilities that reflect those sovereignty lands that are
  209  occupied by structures or slips but have additional areas under
  210  lease that are needed for safe navigation or to protect the
  211  structure.
  212         3. Potential modifications to the definition of “first
  213  come, first-served” in order to account for those options that
  214  seek to fulfill the intent of increasing public access.
  215  
  216  The recommendations shall be developed in conjunction with the
  217  rulemaking efforts needed to implement changes to this
  218  subsection.
  219         (l)(c) Structures which are listed in or are eligible for
  220  the National Register of Historic Places or the State Inventory
  221  of Historic Places which are over the waters of the State of
  222  Florida and which have a submerged land lease, or have been
  223  grandfathered-in to use sovereignty submerged lands until
  224  January 1, 1998, pursuant to rule 18-21.00405, Florida
  225  Administrative Code, shall have the right to continue such
  226  submerged land leases, regardless of the fact that the present
  227  landholder is not an adjacent riparian landowner, so long as the
  228  lessee maintains the structure in a good state of repair
  229  consistent with the guidelines for listing. If the structure is
  230  damaged or destroyed, the lessee shall be allowed to
  231  reconstruct, so long as the reconstruction is consistent with
  232  the integrity of the listed structure and does not increase the
  233  footprint of the structure. If a structure so listed falls into
  234  disrepair and the lessee is not willing to repair and maintain
  235  it consistent with its listing, the state may cancel the
  236  submerged lease and either repair and maintain the property or
  237  require that the structure be removed from sovereignty submerged
  238  lands.
  239         (m)(d) By January 1, 2001, the owners of habitable
  240  structures built on or before May 1, 1999, located in
  241  conservation areas 2 or 3, on district or state-owned lands, the
  242  existence or use which will not impede the restoration of the
  243  Everglades, whether pursuant to a submerged lease or not, must
  244  provide written notification to the South Florida Water
  245  Management District of their existence and location, including
  246  an identification of the footprint of the structures. This
  247  notification will grant the leaseholders an automatic 20-year
  248  lease at a reasonable fee established by the district, or the
  249  Department of Environmental Protection, as appropriate, to
  250  expire on January 1, 2020. The district or Department of
  251  Environmental Protection, as appropriate, may impose reasonable
  252  conditions consistent with existing laws and rules. If the
  253  structures are located on privately owned lands, the landowners
  254  must provide the same notification required for a 20-year
  255  permit. If the structures are located on state-owned lands, the
  256  South Florida Water Management District shall submit this
  257  notification to the Department of Environmental Protection on
  258  the owner’s behalf. At the expiration of this 20-year lease or
  259  permit, the South Florida Water Management District or the
  260  Department of Environmental Protection, as appropriate, shall
  261  have the right to require that the leaseholder remove the
  262  structures if the district determines that the structures or
  263  their use are causing harm to the water or land resources of the
  264  district, or to renew the lease agreement. The structure of any
  265  owner who does not provide notification to the South Florida
  266  Water Management District as required under this subsection,
  267  shall be considered illegal and subject to immediate removal.
  268  Any structure built in any water conservation area after May 1,
  269  1999, without necessary permits and leases from the South
  270  Florida Water Management District, the Department of
  271  Environmental Protection, or other local government, as
  272  appropriate, shall be considered illegal and subject to removal.
  273         (n)(e) Failure to comply with the conditions contained in
  274  any permit or lease agreement as described in paragraph (l) (d)
  275  makes the structure illegal and subject to removal. Any
  276  structure built in any water conservation area on or after July
  277  1, 2000, is also illegal and subject to immediate removal.
  278         Section 3. Subsection (2) of section 253.04, Florida
  279  Statutes, is amended to read:
  280         253.04 Duty of board to protect, etc., state lands; state
  281  may join in any action brought.—
  282         (2) Upon election by the board to not assess In lieu of
  283  seeking monetary damages pursuant to subsection (1) against any
  284  person or the agent of any person who has been found to have
  285  willfully damaged lands of the state, the ownership or
  286  boundaries of which have been established by the state, to have
  287  willfully damaged or removed products thereof in violation of
  288  state or federal law, to have knowingly refused to comply with
  289  or willfully violated the provisions of this chapter, or to have
  290  failed to comply with an order of the board to remove or alter
  291  any structure or vessel that is not in compliance with
  292  applicable rules or with conditions of authorization to locate
  293  such a structure or vessel on state-owned land, the board may
  294  must impose a fine for each offense in an amount of at least
  295  $100 and up to $10,000 to be fixed by rule and imposed and
  296  collected by the board in accordance with the provisions of
  297  chapter 120. Each day during any portion of which such violation
  298  occurs constitutes a separate offense. This subsection does not
  299  apply to any act or omission which is currently subject to
  300  litigation wherein the state or any agency of the state is a
  301  party as of October 1, 1984, or to any person who holds such
  302  lands under color of title. Nothing contained herein impairs the
  303  rights of any person to obtain a judicial determination in a
  304  court of competent jurisdiction of such person’s interest in
  305  lands that are the subject of a claim or proceeding by the
  306  department under this subsection.
  307         Section 4. Paragraph (c) of subsection (1) of section
  308  895.09, Florida Statutes, is amended to read:
  309         895.09 Disposition of funds obtained through forfeiture
  310  proceedings.—
  311         (1) A court entering a judgment of forfeiture in a
  312  proceeding brought pursuant to s. 895.05 shall retain
  313  jurisdiction to direct the distribution of any cash or of any
  314  cash proceeds realized from the forfeiture and disposition of
  315  the property. The court shall direct the distribution of the
  316  funds in the following order of priority:
  317         (c) Any claim by the Board of Trustees of the Internal
  318  Improvement Trust Fund on behalf of the Internal Improvement
  319  Trust Fund or the Land Acquisition Trust Fund pursuant to s.
  320  253.03(14) s. 253.03(12), not including administrative costs of
  321  the Department of Environmental Protection previously paid
  322  directly from the Internal Improvement Trust Fund in accordance
  323  with legislative appropriation.
  324         Section 5. This act shall take effect July 1, 2009.