Florida Senate - 2011                       CS for CS for SB 476
       
       
       
       By the Committees on Judiciary; and Regulated Industries; and
       Senator Evers
       
       
       
       590-04946-11                                           2011476c2
    1                        A bill to be entitled                      
    2         An act relating to public lodging establishments;
    3         amending s. 509.032, F.S.; conforming provisions to
    4         changes made by the act; prohibiting local governments
    5         from regulating vacation rentals based solely on their
    6         classification or use; providing an exception;
    7         amending ss. 509.221 and 509.241, F.S.; conforming
    8         provisions to changes made by the act; amending s.
    9         509.242, F.S.; providing that public lodging
   10         establishments formerly classified as resort
   11         condominiums and resort dwellings are classified as
   12         vacation rentals; defining the term “vacation rental”;
   13         amending s. 509.251, F.S.; conforming provisions to
   14         changes made by the act; amending s. 509.261, F.S.;
   15         revising mandatory education requirements for certain
   16         violations; amending s. 509.291, F.S.; revising
   17         membership of the advisory council of the Division of
   18         Hotels and Restaurants of the Department of Business
   19         and Professional Regulation; requiring the Florida
   20         Vacation Rental Managers Association to designate a
   21         member to serve on the advisory council; amending ss.
   22         381.008 and 386.203, F.S.; conforming provisions to
   23         changes made by the act; providing a short title;
   24         amending s. 509.144, F.S.; revising the definition of
   25         the term “handbill”; providing additional penalties
   26         for the offense of unlawfully distributing handbills
   27         in a public lodging establishment; specifying that
   28         certain items used in committing such offense are
   29         subject to seizure and forfeiture under the Florida
   30         Contraband Forfeiture Act; creating s. 901.1503, F.S.;
   31         authorizing a law enforcement officer to give a notice
   32         to appear to a person without a warrant when there is
   33         probable cause to believe the person violated s.
   34         509.144, F.S., and the owner or manager of the public
   35         lodging establishment, and one additional affiant,
   36         signs an affidavit containing information supporting
   37         the determination of probable cause; amending s.
   38         932.701, F.S.; revising the definition of the term
   39         “contraband article”; providing that specified
   40         portions of the act do not affect or impede specified
   41         statutory provisions or any protection or right
   42         guaranteed by the Second Amendment to the United
   43         States Constitution; providing an effective date.
   44  
   45  Be It Enacted by the Legislature of the State of Florida:
   46  
   47         Section 1. Paragraph (a) of subsection (2) and subsection
   48  (7) of section 509.032, Florida Statutes, are amended to read:
   49         509.032 Duties.—
   50         (2) INSPECTION OF PREMISES.—
   51         (a) The division has responsibility and jurisdiction for
   52  all inspections required by this chapter. The division has
   53  responsibility for quality assurance. Each licensed
   54  establishment shall be inspected at least biannually, except for
   55  transient and nontransient apartments, which shall be inspected
   56  at least annually, and shall be inspected at such other times as
   57  the division determines is necessary to ensure the public’s
   58  health, safety, and welfare. The division shall establish a
   59  system to determine inspection frequency. Public lodging units
   60  classified as vacation rentals resort condominiums or resort
   61  dwellings are not subject to this requirement, but shall be made
   62  available to the division upon request. If, during the
   63  inspection of a public lodging establishment classified for
   64  renting to transient or nontransient tenants, an inspector
   65  identifies vulnerable adults who appear to be victims of
   66  neglect, as defined in s. 415.102, or, in the case of a building
   67  that is not equipped with automatic sprinkler systems, tenants
   68  or clients who may be unable to self-preserve in an emergency,
   69  the division shall convene meetings with the following agencies
   70  as appropriate to the individual situation: the Department of
   71  Health, the Department of Elderly Affairs, the area agency on
   72  aging, the local fire marshal, the landlord and affected tenants
   73  and clients, and other relevant organizations, to develop a plan
   74  which improves the prospects for safety of affected residents
   75  and, if necessary, identifies alternative living arrangements
   76  such as facilities licensed under part II of chapter 400 or
   77  under chapter 429.
   78         (7) PREEMPTION AUTHORITY.—
   79         (a) The regulation of public lodging establishments and
   80  public food service establishments, including, but not limited
   81  to, the inspection of public lodging establishments and public
   82  food service establishments for compliance with the sanitation
   83  standards, inspections, adopted under this section, and the
   84  regulation of food safety protection standards for required
   85  training and testing of food service establishment personnel,
   86  and matters related to the nutritional content and marketing of
   87  foods offered in such establishments, are preempted to the
   88  state. This paragraph subsection does not preempt the authority
   89  of a local government or local enforcement district to conduct
   90  inspections of public lodging and public food service
   91  establishments for compliance with the Florida Building Code and
   92  the Florida Fire Prevention Code, pursuant to ss. 553.80 and
   93  633.022.
   94         (b) A local law, ordinance, or regulation may not restrict
   95  the use of vacation rentals, prohibit vacation rentals, or
   96  regulate vacation rentals based solely on their classification,
   97  use, or occupancy. This paragraph does not apply to any local
   98  law, ordinance, or rule adopted on or before June 1, 2011.
   99         Section 2. Subsection (9) of section 509.221, Florida
  100  Statutes, is amended to read:
  101         509.221 Sanitary regulations.—
  102         (9) Subsections (2), (5), and (6) do not apply to any
  103  facility or unit classified as a vacation rental or resort
  104  condominium, nontransient apartment, or resort dwelling as
  105  described in s. 509.242(1)(c) and, (d), and (g).
  106         Section 3. Subsection (2) of section 509.241, Florida
  107  Statutes, is amended to read:
  108         509.241 Licenses required; exceptions.—
  109         (2) APPLICATION FOR LICENSE.—Each person who plans to open
  110  a public lodging establishment or a public food service
  111  establishment shall apply for and receive a license from the
  112  division prior to the commencement of operation. A condominium
  113  association, as defined in s. 718.103, which does not own any
  114  units classified as vacation rentals resort condominiums under
  115  s. 509.242(1)(c) is shall not be required to apply for or
  116  receive a public lodging establishment license.
  117         Section 4. Subsection (1) of section 509.242, Florida
  118  Statutes, is amended to read:
  119         509.242 Public lodging establishments; classifications.—
  120         (1) A public lodging establishment shall be classified as a
  121  hotel, motel, resort condominium, nontransient apartment,
  122  transient apartment, roominghouse, bed and breakfast inn, or
  123  vacation rental resort dwelling if the establishment satisfies
  124  the following criteria:
  125         (a) Hotel.—A hotel is any public lodging establishment
  126  containing sleeping room accommodations for 25 or more guests
  127  and providing the services generally provided by a hotel and
  128  recognized as a hotel in the community in which it is situated
  129  or by the industry.
  130         (b) Motel.—A motel is any public lodging establishment
  131  which offers rental units with an exit to the outside of each
  132  rental unit, daily or weekly rates, offstreet parking for each
  133  unit, a central office on the property with specified hours of
  134  operation, a bathroom or connecting bathroom for each rental
  135  unit, and at least six rental units, and which is recognized as
  136  a motel in the community in which it is situated or by the
  137  industry.
  138         (c) Vacation rental Resort condominium.—A vacation rental
  139  resort condominium is any unit or group of units in a
  140  condominium, cooperative, or timeshare plan or any individually
  141  or collectively owned single-family, two-family, or four-family
  142  house or dwelling unit that is also a transient public lodging
  143  establishment which is rented more than three times in a
  144  calendar year for periods of less than 30 days or 1 calendar
  145  month, whichever is less, or which is advertised or held out to
  146  the public as a place regularly rented for periods of less than
  147  30 days or 1 calendar month, whichever is less.
  148         (d) Nontransient apartment or roominghouse.—A nontransient
  149  apartment or roominghouse is a building or complex of buildings
  150  in which 75 percent or more of the units are available for rent
  151  to nontransient tenants.
  152         (e) Transient apartment or roominghouse.—A transient
  153  apartment or roominghouse is a building or complex of buildings
  154  in which more than 25 percent of the units are advertised or
  155  held out to the public as available for transient occupancy.
  156         (f) Roominghouse.—A roominghouse is any public lodging
  157  establishment that may not be classified as a hotel, motel,
  158  resort condominium, nontransient apartment, bed and breakfast
  159  inn, vacation rental, or transient apartment under this section.
  160  A roominghouse includes, but is not limited to, a boardinghouse.
  161         (g) Resort dwelling.—A resort dwelling is any individually
  162  or collectively owned one-family, two-family, three-family, or
  163  four-family dwelling house or dwelling unit which is rented more
  164  than three times in a calendar year for periods of less than 30
  165  days or 1 calendar month, whichever is less, or which is
  166  advertised or held out to the public as a place regularly rented
  167  for periods of less than 30 days or 1 calendar month, whichever
  168  is less.
  169         (g)(h)Bed and breakfast inn.—A bed and breakfast inn is a
  170  family home structure, with no more than 15 sleeping rooms,
  171  which has been modified to serve as a transient public lodging
  172  establishment, which provides the accommodation and meal
  173  services generally offered by a bed and breakfast inn, and which
  174  is recognized as a bed and breakfast inn in the community in
  175  which it is situated or by the hospitality industry.
  176         Section 5. Subsection (1) of section 509.251, Florida
  177  Statutes, is amended to read:
  178         509.251 License fees.—
  179         (1) The division shall adopt, by rule, a schedule of fees
  180  to be paid by each public lodging establishment as a
  181  prerequisite to issuance or renewal of a license. Such fees
  182  shall be based on the number of rental units in the
  183  establishment. The aggregate fee per establishment charged any
  184  public lodging establishment shall not exceed $1,000; however,
  185  the fees described in paragraphs (a) and (b) may not be included
  186  as part of the aggregate fee subject to this cap. Vacation
  187  rental Resort condominium units within separate buildings or at
  188  separate locations but managed by one licensed agent may be
  189  combined in a single license application, and the division shall
  190  charge a license fee as if all units in the application are in a
  191  single licensed establishment. Resort dwelling units may be
  192  licensed in the same manner as condominium units. The fee
  193  schedule shall require an establishment which applies for an
  194  initial license to pay the full license fee if application is
  195  made during the annual renewal period or more than 6 months
  196  prior to the next such renewal period and one-half of the fee if
  197  application is made 6 months or less prior to such period. The
  198  fee schedule shall include fees collected for the purpose of
  199  funding the Hospitality Education Program, pursuant to s.
  200  509.302, which are payable in full for each application
  201  regardless of when the application is submitted.
  202         (a) Upon making initial application or an application for
  203  change of ownership, the applicant shall pay to the division a
  204  fee as prescribed by rule, not to exceed $50, in addition to any
  205  other fees required by law, which shall cover all costs
  206  associated with initiating regulation of the establishment.
  207         (b) A license renewal filed with the division within 30
  208  days after the expiration date shall be accompanied by a
  209  delinquent fee as prescribed by rule, not to exceed $50, in
  210  addition to the renewal fee and any other fees required by law.
  211  A license renewal filed with the division more than 30 but not
  212  more than 60 days after the expiration date shall be accompanied
  213  by a delinquent fee as prescribed by rule, not to exceed $100,
  214  in addition to the renewal fee and any other fees required by
  215  law.
  216         Section 6. Subsection (1) of section 509.261, Florida
  217  Statutes, is amended to read:
  218         509.261 Revocation or suspension of licenses; fines;
  219  procedure.—
  220         (1) Any public lodging establishment or public food service
  221  establishment that has operated or is operating in violation of
  222  this chapter or the rules of the division, operating without a
  223  license, or operating with a suspended or revoked license may be
  224  subject by the division to:
  225         (a) Fines not to exceed $1,000 per offense;
  226         (b) Mandatory completion attendance, at personal expense,
  227  of a remedial at an educational program administered sponsored
  228  by a food safety training program provider whose program has
  229  been approved by the division, as provided in s. 509.049 the
  230  Hospitality Education Program; and
  231         (c) The suspension, revocation, or refusal of a license
  232  issued pursuant to this chapter.
  233         Section 7. Subsection (1) of section 509.291, Florida
  234  Statutes, is amended to read:
  235         509.291 Advisory council.—
  236         (1) There is created a 10-member advisory council.
  237         (a) The Secretary of Business and Professional Regulation
  238  shall appoint six seven voting members to the advisory council.
  239  Each member appointed by the secretary must be an operator of an
  240  establishment licensed under this chapter and shall represent
  241  the industries regulated by the division, except that one member
  242  appointed by the secretary must be a layperson representing the
  243  general public and one member must be a hospitality education
  244  administrator from an institution of higher education of this
  245  state. Such members of the council shall serve staggered terms
  246  of 4 years.
  247         (b) The Florida Restaurant and Lodging Association shall
  248  designate one representative to serve as a voting member of the
  249  council. The Florida Vacation Rental Managers Association shall
  250  designate one representative to serve as a voting member of the
  251  council. The Florida Apartment Association and the Florida
  252  Association of Realtors shall each designate one representative
  253  to serve as a voting member of the council.
  254         (c) Any member who fails to attend three consecutive
  255  council meetings without good cause may be removed from the
  256  council by the secretary.
  257         Section 8. Paragraph (c) of subsection (8) of section
  258  381.008, Florida Statutes, is amended to read:
  259         381.008 Definitions of terms used in ss. 381.008
  260  381.00897.—As used in ss. 381.008-381.00897, the following words
  261  and phrases mean:
  262         (8) “Residential migrant housing”—A building, structure,
  263  mobile home, barracks, or dormitory, and any combination thereof
  264  on adjacent property which is under the same ownership,
  265  management, or control, and the land appertaining thereto, that
  266  is rented or reserved for occupancy by five or more seasonal or
  267  migrant farmworkers, except:
  268         (c) A hotel or, motel, or resort condominium, as described
  269  defined in chapter 509, that is furnished for transient
  270  occupancy.
  271         Section 9. Subsection (4) of section 386.203, Florida
  272  Statutes, is amended to read:
  273         386.203 Definitions.—As used in this part:
  274         (4) “Designated smoking guest rooms at public lodging
  275  establishments” means the sleeping rooms and directly associated
  276  private areas, such as bathrooms, living rooms, and kitchen
  277  areas, if any, rented to guests for their exclusive transient
  278  occupancy in public lodging establishments, including hotels,
  279  motels, vacation rentals resort condominiums, transient
  280  apartments, transient lodging establishments, rooming houses,
  281  boarding houses, resort dwellings, bed and breakfast inns, and
  282  the like; and designated by the person or persons having
  283  management authority over such public lodging establishment as
  284  rooms in which smoking may be permitted.
  285         Section 10. Sections 11 through 14 of this act may be cited
  286  as the “Tourist Safety Act.”
  287         Section 11. Section 509.144, Florida Statutes, is amended
  288  to read:
  289         509.144 Prohibited handbill distribution in a public
  290  lodging establishment; penalties.—
  291         (1) As used in this section, the term:
  292         (a) “Handbill” means a flier, leaflet, pamphlet, or other
  293  written material that advertises, promotes, or informs persons
  294  about a person an individual, business, company, or food service
  295  establishment, but does shall not include employee
  296  communications permissible under the National Labor Relations
  297  Act, other communications protected by the First Amendment to
  298  the United States Constitution, or communications that relate to
  299  the public health, safety, or welfare and that are distributed
  300  by a federal, state, or local governmental entity or a public or
  301  private utility.
  302         (b) “Without permission” means without the expressed
  303  written or oral permission of the owner, manager, or agent of
  304  the owner or manager of the public lodging establishment where a
  305  sign is posted prohibiting advertising or solicitation in the
  306  manner provided in subsection (5) (4).
  307         (c) “At or in a public lodging establishment” means any
  308  property under the sole ownership or control of a public lodging
  309  establishment.
  310         (2) Any person individual, agent, contractor, or volunteer
  311  who is acting on behalf of a person an individual, business,
  312  company, or food service establishment and who, without
  313  permission, delivers, distributes, or places, or attempts to
  314  deliver, distribute, or place, a handbill at or in a public
  315  lodging establishment commits a misdemeanor of the first degree,
  316  punishable as provided in s. 775.082 or s. 775.083.
  317         (3) Any person who, without permission, directs another
  318  person to deliver, distribute, or place, or attempts to deliver,
  319  distribute, or place, a handbill at or in a public lodging
  320  establishment commits a misdemeanor of the first degree,
  321  punishable as provided in s. 775.082 or s. 775.083. Any person
  322  sentenced under this subsection shall be ordered to pay a
  323  minimum fine of $500 in addition to any other penalty imposed by
  324  the court.
  325         (4) In addition to any other penalty imposed by the court,
  326  a person who violates subsection (2) or subsection (3):
  327         (a) A second time shall be ordered to pay a minimum fine of
  328  $2,000.
  329         (b) A third or subsequent time shall be ordered to pay a
  330  minimum fine of $3,000.
  331         (5)(4) For purposes of this section, a public lodging
  332  establishment that intends to prohibit advertising or
  333  solicitation, as described in this section, at or in such
  334  establishment must comply with the following requirements when
  335  posting a sign prohibiting such solicitation or advertising:
  336         (a) There must appear prominently on any sign referred to
  337  in this subsection, in letters of not less than 2 inches in
  338  height, the terms “no advertising” or “no solicitation” or terms
  339  that indicate the same meaning.
  340         (b) The sign must be posted conspicuously.
  341         (c) If the main office of the public lodging establishment
  342  is immediately accessible by entering the office through a door
  343  from a street, parking lot, grounds, or other area outside such
  344  establishment, the sign must be placed on a part of the main
  345  office, such as a door or window, and the sign must face the
  346  street, parking lot, grounds, or other area outside such
  347  establishment.
  348         (d) If the main office of the public lodging establishment
  349  is not immediately accessible by entering the office through a
  350  door from a street, parking lot, grounds, or other area outside
  351  such establishment, the sign must be placed in the immediate
  352  vicinity of the main entrance to such establishment, and the
  353  sign must face the street, parking lot, grounds, or other area
  354  outside such establishment.
  355         (6) Any personal property, including, but not limited to,
  356  any vehicle of any kind, item, object, tool, device, weapon,
  357  machine, money, security, book, or record, which is used or
  358  attempted to be used as an instrumentality in the commission of,
  359  or in aiding and abetting in the commission of, a person’s third
  360  or subsequent violation of this section, whether or not
  361  comprising an element of the offense, is subject to seizure and
  362  forfeiture under the Florida Contraband Forfeiture Act.
  363         Section 12. Section 901.1503, Florida Statutes, is created
  364  to read:
  365         901.1503 When notice to appear by officer without warrant
  366  is lawful.—A law enforcement officer may give a notice to appear
  367  to a person without a warrant when the officer has determined
  368  that he or she has probable cause to believe that a violation of
  369  s. 509.144 has been committed and the owner or manager of the
  370  public lodging establishment in which the violation occurred,
  371  and one additional affiant, signs an affidavit containing
  372  information that supports the officer’s determination of
  373  probable cause.
  374         Section 13. Paragraph (a) of subsection (2) of section
  375  932.701, Florida Statutes, is amended to read:
  376         932.701 Short title; definitions.—
  377         (2) As used in the Florida Contraband Forfeiture Act:
  378         (a) “Contraband article” means:
  379         1. Any controlled substance as defined in chapter 893 or
  380  any substance, device, paraphernalia, or currency or other means
  381  of exchange that was used, was attempted to be used, or was
  382  intended to be used in violation of any provision of chapter
  383  893, if the totality of the facts presented by the state is
  384  clearly sufficient to meet the state’s burden of establishing
  385  probable cause to believe that a nexus exists between the
  386  article seized and the narcotics activity, whether or not the
  387  use of the contraband article can be traced to a specific
  388  narcotics transaction.
  389         2. Any gambling paraphernalia, lottery tickets, money,
  390  currency, or other means of exchange which was used, was
  391  attempted, or intended to be used in violation of the gambling
  392  laws of the state.
  393         3. Any equipment, liquid or solid, which was being used, is
  394  being used, was attempted to be used, or intended to be used in
  395  violation of the beverage or tobacco laws of the state.
  396         4. Any motor fuel upon which the motor fuel tax has not
  397  been paid as required by law.
  398         5. Any personal property, including, but not limited to,
  399  any vessel, aircraft, item, object, tool, substance, device,
  400  weapon, machine, vehicle of any kind, money, securities, books,
  401  records, research, negotiable instruments, or currency, which
  402  was used or was attempted to be used as an instrumentality in
  403  the commission of, or in aiding or abetting in the commission
  404  of, any felony, whether or not comprising an element of the
  405  felony, or which is acquired by proceeds obtained as a result of
  406  a violation of the Florida Contraband Forfeiture Act.
  407         6. Any real property, including any right, title,
  408  leasehold, or other interest in the whole of any lot or tract of
  409  land, which was used, is being used, or was attempted to be used
  410  as an instrumentality in the commission of, or in aiding or
  411  abetting in the commission of, any felony, or which is acquired
  412  by proceeds obtained as a result of a violation of the Florida
  413  Contraband Forfeiture Act.
  414         7. Any personal property, including, but not limited to,
  415  equipment, money, securities, books, records, research,
  416  negotiable instruments, currency, or any vessel, aircraft, item,
  417  object, tool, substance, device, weapon, machine, or vehicle of
  418  any kind in the possession of or belonging to any person who
  419  takes aquaculture products in violation of s. 812.014(2)(c).
  420         8. Any motor vehicle offered for sale in violation of s.
  421  320.28.
  422         9. Any motor vehicle used during the course of committing
  423  an offense in violation of s. 322.34(9)(a).
  424         10. Any photograph, film, or other recorded image,
  425  including an image recorded on videotape, a compact disc,
  426  digital tape, or fixed disk, that is recorded in violation of s.
  427  810.145 and is possessed for the purpose of amusement,
  428  entertainment, sexual arousal, gratification, or profit, or for
  429  the purpose of degrading or abusing another person.
  430         11. Any real property, including any right, title,
  431  leasehold, or other interest in the whole of any lot or tract of
  432  land, which is acquired by proceeds obtained as a result of
  433  Medicaid fraud under s. 409.920 or s. 409.9201; any personal
  434  property, including, but not limited to, equipment, money,
  435  securities, books, records, research, negotiable instruments, or
  436  currency; or any vessel, aircraft, item, object, tool,
  437  substance, device, weapon, machine, or vehicle of any kind in
  438  the possession of or belonging to any person which is acquired
  439  by proceeds obtained as a result of Medicaid fraud under s.
  440  409.920 or s. 409.9201.
  441         12. Any personal property, including, but not limited to,
  442  any vehicle of any kind, item, object, tool, device, weapon,
  443  machine, money, security, book, or record, which is used or
  444  attempted to be used as an instrumentality in the commission of,
  445  or in aiding and abetting in the commission of, a person’s third
  446  or subsequent violation of s. 509.144, whether or not comprising
  447  an element of the offense.
  448         Section 14. The amendments made by this act to ss. 509.144
  449  and 932.701, Florida Statutes, and the creation of s. 901.1503,
  450  Florida Statutes, by this act do not affect or impede the
  451  provisions of s. 790.251, Florida Statutes, or any other
  452  protection or right guaranteed by the Second Amendment to the
  453  United States Constitution.
  454         Section 15. This act shall take effect upon becoming a law.