CS/CS/CS/HB 883

1
A bill to be entitled
2An act relating to public lodging establishments and
3public food service establishments; amending s. 509.032,
4F.S.; conforming provisions to changes made by the act;
5prohibiting local governments from regulating,
6restricting, or prohibiting vacation rentals based solely
7on their classification or use; providing an exception;
8revising authority preempted to the state with regard to
9regulation of public lodging establishments and public
10food service establishments; amending ss. 509.221 and
11509.241, F.S.; conforming provisions to changes made by
12the act; amending s. 509.242, F.S.; providing that public
13lodging establishments formerly classified as resort
14condominiums and resort dwellings are classified as
15vacation rentals; defining the term "vacation rental";
16amending s. 509.251, F.S.; conforming provisions to
17changes made by the act; amending s. 509.261, F.S.;
18revising penalties for public lodging establishments and
19public food service establishments operating without a
20valid license; amending s. 509.291, F.S.; revising
21membership of the advisory council of the Division of
22Hotels and Restaurants of the Department of Business and
23Professional Regulation; requiring the Florida Vacation
24Rental Managers Association to designate a member to serve
25on the advisory council; amending ss. 381.008 and 386.203,
26F.S.; conforming provisions to changes made by the act;
27providing a short title; amending s. 509.144, F.S.;
28revising definitions; providing additional penalties for
29the offense of unlawfully distributing handbills in a
30public lodging establishment; specifying that certain
31items used in committing such offense are subject to
32seizure and forfeiture under the Florida Contraband
33Forfeiture Act; creating s. 901.1503, F.S.; authorizing a
34law enforcement officer to give a notice to appear to a
35person without a warrant when there is probable cause to
36believe the person violated s. 509.144, F.S., and the
37owner or manager of the public lodging establishment signs
38an affidavit containing information supporting the
39determination of probable cause; amending s. 932.701,
40F.S.; revising the definition of the term "contraband
41article"; providing that specified portions of the act do
42not affect or impede specified statutory provisions or any
43protection or right guaranteed by the Second Amendment to
44the United States Constitution; providing an effective
45date.
46
47Be It Enacted by the Legislature of the State of Florida:
48
49     Section 1.  Paragraph (a) of subsection (2) and subsection
50(7) of section 509.032, Florida Statutes, are amended to read:
51     509.032  Duties.-
52     (2)  INSPECTION OF PREMISES.-
53     (a)  The division has responsibility and jurisdiction for
54all inspections required by this chapter. The division has
55responsibility for quality assurance. Each licensed
56establishment shall be inspected at least biannually, except for
57transient and nontransient apartments, which shall be inspected
58at least annually, and shall be inspected at such other times as
59the division determines is necessary to ensure the public's
60health, safety, and welfare. The division shall establish a
61system to determine inspection frequency. Public lodging units
62classified as vacation rentals resort condominiums or resort
63dwellings are not subject to this requirement, but shall be made
64available to the division upon request. If, during the
65inspection of a public lodging establishment classified for
66renting to transient or nontransient tenants, an inspector
67identifies vulnerable adults who appear to be victims of
68neglect, as defined in s. 415.102, or, in the case of a building
69that is not equipped with automatic sprinkler systems, tenants
70or clients who may be unable to self-preserve in an emergency,
71the division shall convene meetings with the following agencies
72as appropriate to the individual situation: the Department of
73Health, the Department of Elderly Affairs, the area agency on
74aging, the local fire marshal, the landlord and affected tenants
75and clients, and other relevant organizations, to develop a plan
76which improves the prospects for safety of affected residents
77and, if necessary, identifies alternative living arrangements
78such as facilities licensed under part II of chapter 400 or
79under chapter 429.
80     (7)  PREEMPTION AUTHORITY.-
81     (a)  The regulation of public lodging establishments and
82public food service establishments, including, but not limited
83to, the inspection of public lodging establishments and public
84food service establishments for compliance with the sanitation
85standards, inspections, adopted under this section, and the
86regulation of food safety protection standards for required
87training and testing of food service establishment personnel,
88and matters related to the nutritional content and marketing of
89foods offered in such establishments, is are preempted to the
90state. This paragraph subsection does not preempt the authority
91of a local government or local enforcement district to conduct
92inspections of public lodging and public food service
93establishments for compliance with the Florida Building Code and
94the Florida Fire Prevention Code, pursuant to ss. 553.80 and
95633.022.
96     (b)  A local law, ordinance, or regulation may not restrict
97the use of vacation rentals, prohibit vacation rentals, or
98regulate vacation rentals based solely on their classification,
99use, or occupancy. This paragraph does not apply to any local
100law, ordinance, or regulation adopted on or before June 1, 2011.
101     Section 2.  Subsection (9) of section 509.221, Florida
102Statutes, is amended to read:
103     509.221  Sanitary regulations.-
104     (9)  Subsections (2), (5), and (6) do not apply to any
105facility or unit classified as a vacation rental or resort
106condominium, nontransient apartment, or resort dwelling as
107described in s. 509.242(1)(c) and, (d), and (g).
108     Section 3.  Subsection (2) of section 509.241, Florida
109Statutes, is amended to read:
110     509.241  Licenses required; exceptions.-
111     (2)  APPLICATION FOR LICENSE.-Each person who plans to open
112a public lodging establishment or a public food service
113establishment shall apply for and receive a license from the
114division prior to the commencement of operation. A condominium
115association, as defined in s. 718.103, which does not own any
116units classified as vacation rentals resort condominiums under
117s. 509.242(1)(c) is shall not be required to apply for or
118receive a public lodging establishment license.
119     Section 4.  Subsection (1) of section 509.242, Florida
120Statutes, is amended to read:
121     509.242  Public lodging establishments; classifications.-
122     (1)  A public lodging establishment shall be classified as
123a hotel, motel, resort condominium, nontransient apartment,
124transient apartment, roominghouse, bed and breakfast inn, or
125vacation rental resort dwelling if the establishment satisfies
126the following criteria:
127     (a)  Hotel.-A hotel is any public lodging establishment
128containing sleeping room accommodations for 25 or more guests
129and providing the services generally provided by a hotel and
130recognized as a hotel in the community in which it is situated
131or by the industry.
132     (b)  Motel.-A motel is any public lodging establishment
133which offers rental units with an exit to the outside of each
134rental unit, daily or weekly rates, offstreet parking for each
135unit, a central office on the property with specified hours of
136operation, a bathroom or connecting bathroom for each rental
137unit, and at least six rental units, and which is recognized as
138a motel in the community in which it is situated or by the
139industry.
140     (c)  Vacation rental Resort condominium.-A vacation rental
141resort condominium is any unit or group of units in a
142condominium, cooperative, or timeshare plan or any individually
143or collectively owned single-family, two-family, or four-family
144house or dwelling unit that is also a transient public lodging
145establishment which is rented more than three times in a
146calendar year for periods of less than 30 days or 1 calendar
147month, whichever is less, or which is advertised or held out to
148the public as a place regularly rented for periods of less than
14930 days or 1 calendar month, whichever is less.
150     (d)  Nontransient apartment or roominghouse.-A nontransient
151apartment or roominghouse is a building or complex of buildings
152in which 75 percent or more of the units are available for rent
153to nontransient tenants.
154     (e)  Transient apartment or roominghouse.-A transient
155apartment or roominghouse is a building or complex of buildings
156in which more than 25 percent of the units are advertised or
157held out to the public as available for transient occupancy.
158     (f)  Roominghouse.-A roominghouse is any public lodging
159establishment that may not be classified as a hotel, motel,
160resort condominium, nontransient apartment, bed and breakfast
161inn, vacation rental, or transient apartment under this section.
162A roominghouse includes, but is not limited to, a boardinghouse.
163     (g)  Resort dwelling.-A resort dwelling is any individually
164or collectively owned one-family, two-family, three-family, or
165four-family dwelling house or dwelling unit which is rented more
166than three times in a calendar year for periods of less than 30
167days or 1 calendar month, whichever is less, or which is
168advertised or held out to the public as a place regularly rented
169for periods of less than 30 days or 1 calendar month, whichever
170is less.
171     (g)(h)  Bed and breakfast inn.-A bed and breakfast inn is a
172family home structure, with no more than 15 sleeping rooms,
173which has been modified to serve as a transient public lodging
174establishment, which provides the accommodation and meal
175services generally offered by a bed and breakfast inn, and which
176is recognized as a bed and breakfast inn in the community in
177which it is situated or by the hospitality industry.
178     Section 5.  Subsection (1) of section 509.251, Florida
179Statutes, is amended to read:
180     509.251  License fees.-
181     (1)  The division shall adopt, by rule, a schedule of fees
182to be paid by each public lodging establishment as a
183prerequisite to issuance or renewal of a license. Such fees
184shall be based on the number of rental units in the
185establishment. The aggregate fee per establishment charged any
186public lodging establishment shall not exceed $1,000; however,
187the fees described in paragraphs (a) and (b) may not be included
188as part of the aggregate fee subject to this cap. Vacation
189rental Resort condominium units within separate buildings or at
190separate locations but managed by one licensed agent may be
191combined in a single license application, and the division shall
192charge a license fee as if all units in the application are in a
193single licensed establishment. Resort dwelling units may be
194licensed in the same manner as condominium units. The fee
195schedule shall require an establishment which applies for an
196initial license to pay the full license fee if application is
197made during the annual renewal period or more than 6 months
198prior to the next such renewal period and one-half of the fee if
199application is made 6 months or less prior to such period. The
200fee schedule shall include fees collected for the purpose of
201funding the Hospitality Education Program, pursuant to s.
202509.302, which are payable in full for each application
203regardless of when the application is submitted.
204     (a)  Upon making initial application or an application for
205change of ownership, the applicant shall pay to the division a
206fee as prescribed by rule, not to exceed $50, in addition to any
207other fees required by law, which shall cover all costs
208associated with initiating regulation of the establishment.
209     (b)  A license renewal filed with the division within 30
210days after the expiration date shall be accompanied by a
211delinquent fee as prescribed by rule, not to exceed $50, in
212addition to the renewal fee and any other fees required by law.
213A license renewal filed with the division more than 30 but not
214more than 60 days after the expiration date shall be accompanied
215by a delinquent fee as prescribed by rule, not to exceed $100,
216in addition to the renewal fee and any other fees required by
217law.
218     Section 6.  Subsection (1) of section 509.261, Florida
219Statutes, is amended to read:
220     509.261  Revocation or suspension of licenses; fines;
221procedure.-
222     (1)  Any public lodging establishment or public food
223service establishment that has operated or is operating in
224violation of this chapter or the rules of the division,
225operating without a license, or operating with a suspended or
226revoked license may be subject by the division to:
227     (a)  Fines not to exceed $1,000 per offense;
228     (b)  Mandatory completion attendance, at personal expense,
229of a remedial at an educational program administered sponsored
230by a food safety training program provider approved by the
231division, as provided in s. 509.049 the Hospitality Education
232Program; and
233     (c)  The suspension, revocation, or refusal of a license
234issued pursuant to this chapter.
235     Section 7.  Subsection (1) of section 509.291, Florida
236Statutes, is amended to read:
237     509.291  Advisory council.-
238     (1)  There is created a 10-member advisory council.
239     (a)  The Secretary of Business and Professional Regulation
240shall appoint six seven voting members to the advisory council.
241Each member appointed by the secretary must be an operator of an
242establishment licensed under this chapter and shall represent
243the industries regulated by the division, except that one member
244appointed by the secretary must be a layperson representing the
245general public and one member must be a hospitality education
246administrator from an institution of higher education of this
247state. Such members of the council shall serve staggered terms
248of 4 years.
249     (b)  The Florida Restaurant and Lodging Association shall
250designate one representative to serve as a voting member of the
251council. The Florida Vacation Rental Managers Association shall
252designate one representative to serve as a voting member of the
253council. The Florida Apartment Association and the Florida
254Association of Realtors shall each designate one representative
255to serve as a voting member of the council.
256     (c)  Any member who fails to attend three consecutive
257council meetings without good cause may be removed from the
258council by the secretary.
259     Section 8.  Paragraph (c) of subsection (8) of section
260381.008, Florida Statutes, is amended to read:
261     381.008  Definitions of terms used in ss. 381.008-
262381.00897.-As used in ss. 381.008-381.00897, the following words
263and phrases mean:
264     (8)  "Residential migrant housing"-A building, structure,
265mobile home, barracks, or dormitory, and any combination thereof
266on adjacent property which is under the same ownership,
267management, or control, and the land appertaining thereto, that
268is rented or reserved for occupancy by five or more seasonal or
269migrant farmworkers, except:
270     (c)  A hotel, or motel, or resort condominium, as described
271defined in chapter 509, that is furnished for transient
272occupancy.
273     Section 9.  Subsection (4) of section 386.203, Florida
274Statutes, is amended to read:
275     386.203  Definitions.-As used in this part:
276     (4)  "Designated smoking guest rooms at public lodging
277establishments" means the sleeping rooms and directly associated
278private areas, such as bathrooms, living rooms, and kitchen
279areas, if any, rented to guests for their exclusive transient
280occupancy in public lodging establishments, including hotels,
281motels, vacation rentals resort condominiums, transient
282apartments, transient lodging establishments, rooming houses,
283boarding houses, resort dwellings, bed and breakfast inns, and
284the like; and designated by the person or persons having
285management authority over such public lodging establishment as
286rooms in which smoking may be permitted.
287     Section 10.  Sections 11 through 14 of this act may be
288cited as the "Tourist Safety Act of 2011."
289     Section 11.  Section 509.144, Florida Statutes, is amended
290to read:
291     509.144  Prohibited handbill distribution in a public
292lodging establishment; penalties.-
293     (1)  As used in this section, the term:
294     (a)  "Handbill" means a flier, leaflet, pamphlet, or other
295written material that advertises, promotes, or informs persons
296about a person an individual, business, company, or food service
297establishment, but does shall not include employee
298communications permissible under the National Labor Relations
299Act, other communications protected by the First Amendment to
300the United States Constitution, or communications about public
301health, safety, or welfare distributed by a federal, state, or
302local governmental entity or a public or private utility.
303     (b)  "Without permission" means without the expressed
304written or oral permission of the owner, manager, or agent of
305the owner or manager of the public lodging establishment where a
306sign is posted prohibiting advertising or solicitation in the
307manner provided in subsection (5) (4).
308     (c)  "At or in a public lodging establishment" means any
309property under the sole ownership or control of a public lodging
310establishment.
311     (2)  Any person individual, agent, contractor, or volunteer
312who is acting on behalf of a person an individual, business,
313company, or food service establishment and who, without
314permission, delivers, distributes, or places, or attempts to
315deliver, distribute, or place, a handbill at or in a public
316lodging establishment commits a misdemeanor of the first degree,
317punishable as provided in s. 775.082 or s. 775.083.
318     (3)  Any person who, without permission, directs another
319person to deliver, distribute, or place, or attempts to deliver,
320distribute, or place, a handbill at or in a public lodging
321establishment commits a misdemeanor of the first degree,
322punishable as provided in s. 775.082 or s. 775.083. Any person
323sentenced under this subsection shall be ordered to pay a
324minimum fine of $500 in addition to any other penalty imposed by
325the court.
326     (4)  In addition to any penalty imposed by the court, a
327person who violates subsection (2) or subsection (3):
328     (a)  Shall pay a minimum fine of $2,000 for a second
329violation.
330     (b)  Shall pay a minimum fine of $3,000 for a third or
331subsequent violation.
332     (5)(4)  For purposes of this section, a public lodging
333establishment that intends to prohibit advertising or
334solicitation, as described in this section, at or in such
335establishment must comply with the following requirements when
336posting a sign prohibiting such solicitation or advertising:
337     (a)  There must appear prominently on any sign referred to
338in this subsection, in letters of not less than 2 inches in
339height, the terms "no advertising" or "no solicitation" or terms
340that indicate the same meaning.
341     (b)  The sign must be posted conspicuously.
342     (c)  If the main office of the public lodging establishment
343is immediately accessible by entering the office through a door
344from a street, parking lot, grounds, or other area outside such
345establishment, the sign must be placed on a part of the main
346office, such as a door or window, and the sign must face the
347street, parking lot, grounds, or other area outside such
348establishment.
349     (d)  If the main office of the public lodging establishment
350is not immediately accessible by entering the office through a
351door from a street, parking lot, grounds, or other area outside
352such establishment, the sign must be placed in the immediate
353vicinity of the main entrance to such establishment, and the
354sign must face the street, parking lot, grounds, or other area
355outside such establishment.
356     (6)  Any personal property, including, but not limited to,
357any vehicle, item, object, tool, device, weapon, machine, money,
358security, book, or record, that is used or attempted to be used
359as an instrumentality in the commission of, or in aiding and
360abetting in the commission of, a person's third or subsequent
361violation of this section, whether or not comprising an element
362of the offense, is subject to seizure and forfeiture under the
363Florida Contraband Forfeiture Act.
364     Section 12.  Section 901.1503, Florida Statutes, is created
365to read:
366     901.1503  When notice to appear by officer without warrant
367is lawful.-A law enforcement officer may give a notice to appear
368to a person without a warrant when the officer has determined
369that he or she has probable cause to believe that a violation of
370s. 509.144 has been committed and the owner or manager of the
371public lodging establishment in which the violation occurred
372signs an affidavit containing information that supports the
373officer's determination of probable cause.
374     Section 13.  Paragraph (a) of subsection (2) of section
375932.701, 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
380any substance, device, paraphernalia, or currency or other means
381of exchange that was used, was attempted to be used, or was
382intended to be used in violation of any provision of chapter
383893, if the totality of the facts presented by the state is
384clearly sufficient to meet the state's burden of establishing
385probable cause to believe that a nexus exists between the
386article seized and the narcotics activity, whether or not the
387use of the contraband article can be traced to a specific
388narcotics transaction.
389     2.  Any gambling paraphernalia, lottery tickets, money,
390currency, or other means of exchange which was used, was
391attempted, or intended to be used in violation of the gambling
392laws of the state.
393     3.  Any equipment, liquid or solid, which was being used,
394is being used, was attempted to be used, or intended to be used
395in violation of the beverage or tobacco laws of the state.
396     4.  Any motor fuel upon which the motor fuel tax has not
397been paid as required by law.
398     5.  Any personal property, including, but not limited to,
399any vessel, aircraft, item, object, tool, substance, device,
400weapon, machine, vehicle of any kind, money, securities, books,
401records, research, negotiable instruments, or currency, which
402was used or was attempted to be used as an instrumentality in
403the commission of, or in aiding or abetting in the commission
404of, any felony, whether or not comprising an element of the
405felony, or which is acquired by proceeds obtained as a result of
406a violation of the Florida Contraband Forfeiture Act.
407     6.  Any real property, including any right, title,
408leasehold, or other interest in the whole of any lot or tract of
409land, which was used, is being used, or was attempted to be used
410as an instrumentality in the commission of, or in aiding or
411abetting in the commission of, any felony, or which is acquired
412by proceeds obtained as a result of a violation of the Florida
413Contraband Forfeiture Act.
414     7.  Any personal property, including, but not limited to,
415equipment, money, securities, books, records, research,
416negotiable instruments, currency, or any vessel, aircraft, item,
417object, tool, substance, device, weapon, machine, or vehicle of
418any kind in the possession of or belonging to any person who
419takes aquaculture products in violation of s. 812.014(2)(c).
420     8.  Any motor vehicle offered for sale in violation of s.
421320.28.
422     9.  Any motor vehicle used during the course of committing
423an offense in violation of s. 322.34(9)(a).
424     10.  Any photograph, film, or other recorded image,
425including an image recorded on videotape, a compact disc,
426digital tape, or fixed disk, that is recorded in violation of s.
427810.145 and is possessed for the purpose of amusement,
428entertainment, sexual arousal, gratification, or profit, or for
429the purpose of degrading or abusing another person.
430     11.  Any real property, including any right, title,
431leasehold, or other interest in the whole of any lot or tract of
432land, which is acquired by proceeds obtained as a result of
433Medicaid fraud under s. 409.920 or s. 409.9201; any personal
434property, including, but not limited to, equipment, money,
435securities, books, records, research, negotiable instruments, or
436currency; or any vessel, aircraft, item, object, tool,
437substance, device, weapon, machine, or vehicle of any kind in
438the possession of or belonging to any person which is acquired
439by proceeds obtained as a result of Medicaid fraud under s.
440409.920 or s. 409.9201.
441     12.  Any personal property, including, but not limited to,
442any vehicle, item, object, tool, device, weapon, machine, money,
443security, book, or record, that is used or attempted to be used
444as an instrumentality in the commission of, or in aiding and
445abetting in the commission of, a person's third or subsequent
446violation of s. 509.144, whether or not comprising an element of
447the offense.
448     Section 14.  The amendments made to ss. 509.144 and
449932.701, Florida Statutes, and the creation of s. 901.1503,
450Florida Statutes, by this act do not affect or impede the
451provisions of s. 790.251, Florida Statutes, or any other
452protection or right guaranteed by the Second Amendment to the
453United States Constitution.
454     Section 15.  This act shall take effect upon becoming a
455law.


CODING: Words stricken are deletions; words underlined are additions.