CODING: Words stricken are deletions; words underlined are additions.
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Senator Williams moved the following amendment:
SENATE AMENDMENT
Bill No. CS/HB 3585
Amendment No.
CHAMBER ACTION
Senate House
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11 Senator Williams moved the following amendment:
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13 Senate Amendment (with title amendment)
14 Delete everything after the enacting clause
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16 and insert:
17 Section 1. Section 395.3036, Florida Statutes, is
18 created to read:
19 395.3036 Confidentiality of records and meetings of
20 corporations that lease public hospitals or other public
21 health care facilities.--The records of a private corporation
22 that leases a public hospital or other public health care
23 facility are confidential and exempt from the provisions of s.
24 119.07(1) and s. 24(a), Art. I of the State Constitution, and
25 the meetings of the governing board of a private corporation
26 are exempt from s. 286.011 and s. 24(b), Art. I of the State
27 Constitution when the public lessor complies with the public
28 finance accountability provisions of s. 155.40(5) with respect
29 to the transfer of any public funds to the private lessee and
30 when the private lessee meets at least three of the five
31 following criteria:
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1 (1) The public lessor that owns the public hospital or
2 other public health care facility was not the incorporator of
3 the private corporation that leases the public hospital or
4 other health care facility.
5 (2) The public lessor and the private lessee do not
6 commingle any of their funds in any account maintained by
7 either of them, other than the payment of the rent and
8 administrative fees or the transfer of funds pursuant to
9 subsection (2).
10 (3) Except as otherwise provided by law, the private
11 lessee is not allowed to participate, except as a member of
12 the public, in the decisionmaking process of the public
13 lessor.
14 (4) The lease agreement does not expressly require the
15 lessee to comply with the requirements of s. 119.07(1) and s.
16 286.011.
17 (5) The public lessor is not entitled to receive any
18 revenues from the lessee, except for rental or administrative
19 fees due under the lease, and the lessor is not responsible
20 for the debts or other obligations of the lessee.
21 Section 2. (1) The Legislature finds that it is a
22 public necessity that all records of a private corporation and
23 all meetings of the governing board of the private corporation
24 be confidential and exempt from the public records and public
25 meeting laws of this state when the private corporation leases
26 a public hospital or other public health care facility from a
27 public entity in accordance with the terms of this act. The
28 Legislature further finds that private corporations have
29 entered into such leases in reliance on the legal standard
30 governing the application of the public records and open
31 meeting laws to such lease agreements which was set forth in
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1 case law existing at the time of the transaction. That
2 standard provided that such private lessees were not "acting
3 on behalf of" the public entity and, therefore, not subject to
4 the state's public records laws so long as the public entity
5 did not retain control over the private lessee. No one factor
6 was used to determine whether the public entity exerted
7 control; instead a "totality of factors" was analyzed and the
8 decision made on the balance of those factors. In a recent
9 decision, however, the Fifth District Court of Appeal has now
10 applied the standard in a manner that may cause more lessees
11 to be subject to public records and meetings requirements. The
12 Legislature finds that the effect of the decision has been:
13 (a) To create uncertainty with respect to the status
14 of records and meetings under existing lease arrangements; and
15 (b) To create a disincentive for private corporations
16 to enter into such lease agreements in the future.
17 (2) Public entities have chosen to privatize the
18 operations of their public hospitals and public health care
19 facilities in order to alleviate three problems that pose a
20 significant threat to the continued viability of Florida's
21 public hospitals:
22 (a) A financial drain on the facilities from their
23 forced participation in the Florida Retirement System;
24 (b) The competitive disadvantage placed on these
25 facilities vis a vis their private competitors resulting from
26 their required compliance with the state's public records and
27 public meeting laws; and
28 (c) State constitutional restrictions on public
29 facility participation in partnerships with private
30 corporations as a result of the limitations contained in the
31 State Constitution. For years, the Legislature has approved
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1 and encouraged these leases, first through special acts that
2 it has adopted authorizing the lease agreements and, more
3 recently, through the adoption of section 155.40, Florida
4 Statutes, which provides for the conversion of public hospital
5 facilities to private operation by lease, as a means to
6 provide public entities with the necessary flexibility to use
7 these public assets in a manner that best serves the interests
8 of the public. Through such lease arrangement, public entities
9 have been able to obtain substantial and oftentimes
10 desperately needed private capital investment into these
11 facilities and to relieve the oftentimes burdensome drain on
12 public tax revenues which resulted from public operation.
13 (3) In the absence of a defined and, therefore,
14 predictable statewide standard for determining when the public
15 records and public meetings laws apply to future lease
16 agreements, public entities may find it difficult, if not
17 impossible, to find a private corporation that is willing to
18 enter into a lease to operate the public hospital or other
19 public health care facility. This, in turn, could force the
20 public entity:
21 (a) To close the hospital or other health care
22 facility, which would result in a reduction in health care
23 services to the public;
24 (b) To sell the hospital or other health care
25 facility, which sale, if the facility has deteriorated because
26 of inadequate capital investments over time, will likely be at
27 a loss; or
28 (c) To continue operating the hospital or other health
29 care facility using public tax dollars to subsidize recurring
30 losses. None of these options is in the best interest of the
31 public.
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1 (3) The Legislature, therefore, finds that it is a
2 public necessity for it, through this act, to clarify when the
3 public records and public meeting laws apply to private
4 lessees of public hospital or other public health care
5 facilities. The Legislature further finds that it is a public
6 necessity for these private lessees to be exempt from the
7 public records and public meetings laws of the state so long
8 as, applying the standard codified by this act, the public
9 entity does not retain control over the private entity.
10 Section 3. This act does not change existing law
11 relating to discovery of records and information that are
12 otherwise discoverable under the Florida Rules of Civil
13 Procedure or any statutory provision allowing discovery or
14 pre-suit disclosure of such records and information for the
15 purpose of civil actions.
16 Section 4. This act shall take effect upon becoming
17 law and shall apply to existing leases and future leases of
18 public hospitals and other health care facilities.
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22 And the title is amended as follows:
23 Delete everything before the enacting clause
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25 and insert:
26 A bill to be entitled
27 An act relating to public records and meetings;
28 creating s. 395.3036, F.S.; providing that when
29 a public lessor complies with the public
30 finance accountability provisions of s.
31 155.40(5), F.S., with respect to the transfer
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1 of any public funds to a private lessee, the
2 records of a private corporation that leases a
3 public hospital or other public health care
4 facility are confidential and exempt from
5 public records requirements, and the meetings
6 of the governing board of such corporation are
7 exempt from public meeting requirements if the
8 corporation meets specified criteria; providing
9 for future review and repeal; providing a
10 finding of public necessity; providing for the
11 continued applicability of the Florida Rules of
12 Civil Procedure and statutory provisions
13 relating to discoverability in civil actions to
14 records and information made exempt in the act;
15 providing an effective date.
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