Florida Senate - 2011 SENATOR AMENDMENT
Bill No. CS for CS for SB 476
Barcode 968726
LEGISLATIVE ACTION
Senate . House
.
.
.
Floor: 1/AD/2R .
05/05/2011 05:23 PM .
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
Senator Evers moved the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (b) of subsection (4) of section
6 509.013, Florida Statutes, is amended to read:
7 (4)
8 (b) The following are excluded from the definitions in
9 paragraph (a):
10 1. Any dormitory or other living or sleeping facility
11 maintained by a public or private school, college, or university
12 for the use of students, faculty, or visitors;
13 2. Any facility certified or licensed and regulated by the
14 Agency for Health Care Administration or the Department of
15 Children and Family Services or other similar place regulated
16 under s. 381.0072;
17 3. Any place renting four rental units or less, unless the
18 rental units are advertised or held out to the public to be
19 places that are regularly rented to transients;
20 4. Any unit or group of units in a condominium,
21 cooperative, or timeshare plan and any individually or
22 collectively owned one-family, two-family, three-family, or
23 four-family dwelling house or dwelling unit that is rented for
24 periods of at least 30 days or 1 calendar month, whichever is
25 less, and that is not advertised or held out to the public as a
26 place regularly rented for periods of less than 1 calendar
27 month, provided that no more than four rental units within a
28 single complex of buildings are available for rent;
29 5. Any migrant labor camp or residential migrant housing
30 permitted by the Department of Health; under ss. 381.008
31 381.00895; and
32 6. Any establishment inspected by the Department of Health
33 and regulated by chapter 513; and
34 7. Any nonprofit organization that operates a facility
35 providing housing only to patients, patients’ families, and
36 patients’ caregivers and not to the general public.
37 Section 2. Paragraph (a) of subsection (2) and subsection
38 (7) of section 509.032, Florida Statutes, are amended to read:
39 509.032 Duties.—
40 (2) INSPECTION OF PREMISES.—
41 (a) The division has responsibility and jurisdiction for
42 all inspections required by this chapter. The division has
43 responsibility for quality assurance. Each licensed
44 establishment shall be inspected at least biannually, except for
45 transient and nontransient apartments, which shall be inspected
46 at least annually, and shall be inspected at such other times as
47 the division determines is necessary to ensure the public’s
48 health, safety, and welfare. The division shall establish a
49 system to determine inspection frequency. Public lodging units
50 classified as vacation rentals resort condominiums or resort
51 dwellings are not subject to this requirement, but shall be made
52 available to the division upon request. If, during the
53 inspection of a public lodging establishment classified for
54 renting to transient or nontransient tenants, an inspector
55 identifies vulnerable adults who appear to be victims of
56 neglect, as defined in s. 415.102, or, in the case of a building
57 that is not equipped with automatic sprinkler systems, tenants
58 or clients who may be unable to self-preserve in an emergency,
59 the division shall convene meetings with the following agencies
60 as appropriate to the individual situation: the Department of
61 Health, the Department of Elderly Affairs, the area agency on
62 aging, the local fire marshal, the landlord and affected tenants
63 and clients, and other relevant organizations, to develop a plan
64 which improves the prospects for safety of affected residents
65 and, if necessary, identifies alternative living arrangements
66 such as facilities licensed under part II of chapter 400 or
67 under chapter 429.
68 (7) PREEMPTION AUTHORITY.—
69 (a) The regulation of public lodging establishments and
70 public food service establishments, including, but not limited
71 to, the inspection of public lodging establishments and public
72 food service establishments for compliance with the sanitation
73 standards, inspections, adopted under this section, and the
74 regulation of food safety protection standards for required
75 training and testing of food service establishment personnel,
76 and matters related to the nutritional content and marketing of
77 foods offered in such establishments, is are preempted to the
78 state. This paragraph subsection does not preempt the authority
79 of a local government or local enforcement district to conduct
80 inspections of public lodging and public food service
81 establishments for compliance with the Florida Building Code and
82 the Florida Fire Prevention Code, pursuant to ss. 553.80 and
83 633.022.
84 (b) A local law, ordinance, or regulation may not restrict
85 the use of vacation rentals, prohibit vacation rentals, or
86 regulate vacation rentals based solely on their classification,
87 use, or occupancy. This paragraph does not apply to any local
88 law, ordinance, or regulation adopted on or before June 1, 2011.
89 (c) Paragraph (b) does not apply to any local law,
90 ordinance, or regulation exclusively relating to property
91 valuation as a criterion for vacation rental if the local law,
92 ordinance, or regulation is required to be approved by the
93 Department of Community Affairs pursuant to an area of critical
94 state concern designation.
95 Section 3. Subsection (9) of section 509.221, Florida
96 Statutes, is amended to read:
97 509.221 Sanitary regulations.—
98 (9) Subsections (2), (5), and (6) do not apply to any
99 facility or unit classified as a vacation rental or resort
100 condominium, nontransient apartment, or resort dwelling as
101 described in s. 509.242(1)(c) and, (d), and (g).
102 Section 4. Subsection (2) of section 509.241, Florida
103 Statutes, is amended to read:
104 509.241 Licenses required; exceptions.—
105 (2) APPLICATION FOR LICENSE.—Each person who plans to open
106 a public lodging establishment or a public food service
107 establishment shall apply for and receive a license from the
108 division prior to the commencement of operation. A condominium
109 association, as defined in s. 718.103, which does not own any
110 units classified as vacation rentals resort condominiums under
111 s. 509.242(1)(c) is shall not be required to apply for or
112 receive a public lodging establishment license.
113 Section 5. Subsection (1) of section 509.242, Florida
114 Statutes, is amended to read:
115 509.242 Public lodging establishments; classifications.—
116 (1) A public lodging establishment shall be classified as a
117 hotel, motel, resort condominium, nontransient apartment,
118 transient apartment, roominghouse, bed and breakfast inn, or
119 vacation rental resort dwelling if the establishment satisfies
120 the following criteria:
121 (a) Hotel.—A hotel is any public lodging establishment
122 containing sleeping room accommodations for 25 or more guests
123 and providing the services generally provided by a hotel and
124 recognized as a hotel in the community in which it is situated
125 or by the industry.
126 (b) Motel.—A motel is any public lodging establishment
127 which offers rental units with an exit to the outside of each
128 rental unit, daily or weekly rates, offstreet parking for each
129 unit, a central office on the property with specified hours of
130 operation, a bathroom or connecting bathroom for each rental
131 unit, and at least six rental units, and which is recognized as
132 a motel in the community in which it is situated or by the
133 industry.
134 (c) Vacation rental Resort condominium.—A vacation rental
135 resort condominium is any unit or group of units in a
136 condominium, cooperative, or timeshare plan or any individually
137 or collectively owned single-family, two-family, or four-family
138 house or dwelling unit that is also a transient public lodging
139 establishment which is rented more than three times in a
140 calendar year for periods of less than 30 days or 1 calendar
141 month, whichever is less, or which is advertised or held out to
142 the public as a place regularly rented for periods of less than
143 30 days or 1 calendar month, whichever is less.
144 (d) Nontransient apartment or roominghouse.—A nontransient
145 apartment or roominghouse is a building or complex of buildings
146 in which 75 percent or more of the units are available for rent
147 to nontransient tenants.
148 (e) Transient apartment or roominghouse.—A transient
149 apartment or roominghouse is a building or complex of buildings
150 in which more than 25 percent of the units are advertised or
151 held out to the public as available for transient occupancy.
152 (f) Roominghouse.—A roominghouse is any public lodging
153 establishment that may not be classified as a hotel, motel,
154 resort condominium, nontransient apartment, bed and breakfast
155 inn, vacation rental, or transient apartment under this section.
156 A roominghouse includes, but is not limited to, a boardinghouse.
157 (g) Resort dwelling.—A resort dwelling is any individually
158 or collectively owned one-family, two-family, three-family, or
159 four-family dwelling house or dwelling unit which is rented more
160 than three times in a calendar year for periods of less than 30
161 days or 1 calendar month, whichever is less, or which is
162 advertised or held out to the public as a place regularly rented
163 for periods of less than 30 days or 1 calendar month, whichever
164 is less.
165 (g)(h) Bed and breakfast inn.—A bed and breakfast inn is a
166 family home structure, with no more than 15 sleeping rooms,
167 which has been modified to serve as a transient public lodging
168 establishment, which provides the accommodation and meal
169 services generally offered by a bed and breakfast inn, and which
170 is recognized as a bed and breakfast inn in the community in
171 which it is situated or by the hospitality industry.
172 Section 6. Subsection (1) of section 509.251, Florida
173 Statutes, is amended to read:
174 509.251 License fees.—
175 (1) The division shall adopt, by rule, a schedule of fees
176 to be paid by each public lodging establishment as a
177 prerequisite to issuance or renewal of a license. Such fees
178 shall be based on the number of rental units in the
179 establishment. The aggregate fee per establishment charged any
180 public lodging establishment shall not exceed $1,000; however,
181 the fees described in paragraphs (a) and (b) may not be included
182 as part of the aggregate fee subject to this cap. Vacation
183 rental Resort condominium units within separate buildings or at
184 separate locations but managed by one licensed agent may be
185 combined in a single license application, and the division shall
186 charge a license fee as if all units in the application are in a
187 single licensed establishment. Resort dwelling units may be
188 licensed in the same manner as condominium units. The fee
189 schedule shall require an establishment which applies for an
190 initial license to pay the full license fee if application is
191 made during the annual renewal period or more than 6 months
192 prior to the next such renewal period and one-half of the fee if
193 application is made 6 months or less prior to such period. The
194 fee schedule shall include fees collected for the purpose of
195 funding the Hospitality Education Program, pursuant to s.
196 509.302, which are payable in full for each application
197 regardless of when the application is submitted.
198 (a) Upon making initial application or an application for
199 change of ownership, the applicant shall pay to the division a
200 fee as prescribed by rule, not to exceed $50, in addition to any
201 other fees required by law, which shall cover all costs
202 associated with initiating regulation of the establishment.
203 (b) A license renewal filed with the division within 30
204 days after the expiration date shall be accompanied by a
205 delinquent fee as prescribed by rule, not to exceed $50, in
206 addition to the renewal fee and any other fees required by law.
207 A license renewal filed with the division more than 30 but not
208 more than 60 days after the expiration date shall be accompanied
209 by a delinquent fee as prescribed by rule, not to exceed $100,
210 in addition to the renewal fee and any other fees required by
211 law.
212 Section 7. Subsection (1) of section 509.261, Florida
213 Statutes, is amended to read:
214 509.261 Revocation or suspension of licenses; fines;
215 procedure.—
216 (1) Any public lodging establishment or public food service
217 establishment that has operated or is operating in violation of
218 this chapter or the rules of the division, operating without a
219 license, or operating with a suspended or revoked license may be
220 subject by the division to:
221 (a) Fines not to exceed $1,000 per offense;
222 (b) Mandatory completion attendance, at personal expense,
223 of a remedial at an educational program administered sponsored
224 by a food safety training program provider approved by the
225 division, as provided in s. 509.049 the Hospitality Education
226 Program; and
227 (c) The suspension, revocation, or refusal of a license
228 issued pursuant to this chapter.
229 Section 8. Subsection (1) of section 509.291, Florida
230 Statutes, is amended to read:
231 509.291 Advisory council.—
232 (1) There is created a 10-member advisory council.
233 (a) The Secretary of Business and Professional Regulation
234 shall appoint six seven voting members to the advisory council.
235 Each member appointed by the secretary must be an operator of an
236 establishment licensed under this chapter and shall represent
237 the industries regulated by the division, except that one member
238 appointed by the secretary must be a layperson representing the
239 general public and one member must be a hospitality education
240 administrator from an institution of higher education of this
241 state. Such members of the council shall serve staggered terms
242 of 4 years.
243 (b) The Florida Restaurant and Lodging Association shall
244 designate one representative to serve as a voting member of the
245 council. The Florida Vacation Rental Managers Association shall
246 designate one representative to serve as a voting member of the
247 council. The Florida Apartment Association and the Florida
248 Association of Realtors shall each designate one representative
249 to serve as a voting member of the council.
250 (c) Any member who fails to attend three consecutive
251 council meetings without good cause may be removed from the
252 council by the secretary.
253 Section 9. Paragraph (c) of subsection (8) of section
254 381.008, Florida Statutes, is amended to read:
255 381.008 Definitions of terms used in ss. 381.008
256 381.00897.—As used in ss. 381.008-381.00897, the following words
257 and phrases mean:
258 (8) “Residential migrant housing”—A building, structure,
259 mobile home, barracks, or dormitory, and any combination thereof
260 on adjacent property which is under the same ownership,
261 management, or control, and the land appertaining thereto, that
262 is rented or reserved for occupancy by five or more seasonal or
263 migrant farmworkers, except:
264 (c) A hotel, or motel, or resort condominium, as described
265 defined in chapter 509, that is furnished for transient
266 occupancy.
267 Section 10. Subsection (4) of section 386.203, Florida
268 Statutes, is amended to read:
269 386.203 Definitions.—As used in this part:
270 (4) “Designated smoking guest rooms at public lodging
271 establishments” means the sleeping rooms and directly associated
272 private areas, such as bathrooms, living rooms, and kitchen
273 areas, if any, rented to guests for their exclusive transient
274 occupancy in public lodging establishments, including hotels,
275 motels, vacation rentals resort condominiums, transient
276 apartments, transient lodging establishments, rooming houses,
277 boarding houses, resort dwellings, bed and breakfast inns, and
278 the like; and designated by the person or persons having
279 management authority over such public lodging establishment as
280 rooms in which smoking may be permitted.
281 Section 11. Sections 11 through 14 of this act may be cited
282 as the “Tourist Safety Act of 2011.”
283 Section 12. Section 509.144, Florida Statutes, is amended
284 to read:
285 509.144 Prohibited handbill distribution in a public
286 lodging establishment; penalties.—
287 (1) As used in this section, the term:
288 (a) “Handbill” means a flier, leaflet, pamphlet, or other
289 written material that advertises, promotes, or informs persons
290 about a person an individual, business, company, or food service
291 establishment, but does shall not include employee
292 communications permissible under the National Labor Relations
293 Act, other communications protected by the First Amendment to
294 the United States Constitution, or communications about public
295 health, safety, or welfare distributed by a federal, state, or
296 local governmental entity or a public or private utility.
297 (b) “Without permission” means without the expressed
298 written or oral permission of the owner, manager, or agent of
299 the owner or manager of the public lodging establishment where a
300 sign is posted prohibiting advertising or solicitation in the
301 manner provided in subsection (5) (4).
302 (c) “At or in a public lodging establishment” means any
303 property under the sole ownership or control of a public lodging
304 establishment.
305 (2) Any person individual, agent, contractor, or volunteer
306 who is acting on behalf of a person an individual, business,
307 company, or food service establishment and who, without
308 permission, delivers, distributes, or places, or attempts to
309 deliver, distribute, or place, a handbill at or in a public
310 lodging establishment commits a misdemeanor of the first degree,
311 punishable as provided in s. 775.082 or s. 775.083.
312 (3) Any person who, without permission, directs another
313 person to deliver, distribute, or place, or attempts to deliver,
314 distribute, or place, a handbill at or in a public lodging
315 establishment commits a misdemeanor of the first degree,
316 punishable as provided in s. 775.082 or s. 775.083. Any person
317 sentenced under this subsection shall be ordered to pay a
318 minimum fine of $500 in addition to any other penalty imposed by
319 the court.
320 (4) In addition to any penalty imposed by the court, a
321 person who violates subsection (2) or subsection (3):
322 (a) Shall pay a minimum fine of $2,000 for a second
323 violation.
324 (b) Shall pay a minimum fine of $3,000 for a third or
325 subsequent violation.
326 (5)(4) For purposes of this section, a public lodging
327 establishment that intends to prohibit advertising or
328 solicitation, as described in this section, at or in such
329 establishment must comply with the following requirements when
330 posting a sign prohibiting such solicitation or advertising:
331 (a) There must appear prominently on any sign referred to
332 in this subsection, in letters of not less than 2 inches in
333 height, the terms “no advertising” or “no solicitation” or terms
334 that indicate the same meaning.
335 (b) The sign must be posted conspicuously.
336 (c) If the main office of the public lodging establishment
337 is immediately accessible by entering the office through a door
338 from a street, parking lot, grounds, or other area outside such
339 establishment, the sign must be placed on a part of the main
340 office, such as a door or window, and the sign must face the
341 street, parking lot, grounds, or other area outside such
342 establishment.
343 (d) If the main office of the public lodging establishment
344 is not immediately accessible by entering the office through a
345 door from a street, parking lot, grounds, or other area outside
346 such establishment, the sign must be placed in the immediate
347 vicinity of the main entrance to such establishment, and the
348 sign must face the street, parking lot, grounds, or other area
349 outside such establishment.
350 (6) Any personal property, including, but not limited to,
351 any vehicle, item, object, tool, device, weapon, machine, money,
352 security, book, or record, that is used or attempted to be used
353 as an instrumentality in the commission of, or in aiding and
354 abetting in the commission of, a person’s third or subsequent
355 violation of this section, whether or not comprising an element
356 of the offense, is subject to seizure and forfeiture under the
357 Florida Contraband Forfeiture Act.
358 Section 13. Section 901.1503, Florida Statutes, is created
359 to read:
360 901.1503 When notice to appear by officer without warrant
361 is lawful.—A law enforcement officer may give a notice to appear
362 to a person without a warrant when the officer has determined
363 that he or she has probable cause to believe that a violation of
364 s. 509.144 has been committed and the owner or manager of the
365 public lodging establishment in which the violation occurred and
366 one additional affiant sign an affidavit containing information
367 that supports the officer’s determination of probable cause.
368 Section 14. Paragraph (a) of subsection (2) of section
369 932.701, Florida Statutes, is amended to read:
370 932.701 Short title; definitions.—
371 (2) As used in the Florida Contraband Forfeiture Act:
372 (a) “Contraband article” means:
373 1. Any controlled substance as defined in chapter 893 or
374 any substance, device, paraphernalia, or currency or other means
375 of exchange that was used, was attempted to be used, or was
376 intended to be used in violation of any provision of chapter
377 893, if the totality of the facts presented by the state is
378 clearly sufficient to meet the state’s burden of establishing
379 probable cause to believe that a nexus exists between the
380 article seized and the narcotics activity, whether or not the
381 use of the contraband article can be traced to a specific
382 narcotics transaction.
383 2. Any gambling paraphernalia, lottery tickets, money,
384 currency, or other means of exchange which was used, was
385 attempted, or intended to be used in violation of the gambling
386 laws of the state.
387 3. Any equipment, liquid or solid, which was being used, is
388 being used, was attempted to be used, or intended to be used in
389 violation of the beverage or tobacco laws of the state.
390 4. Any motor fuel upon which the motor fuel tax has not
391 been paid as required by law.
392 5. Any personal property, including, but not limited to,
393 any vessel, aircraft, item, object, tool, substance, device,
394 weapon, machine, vehicle of any kind, money, securities, books,
395 records, research, negotiable instruments, or currency, which
396 was used or was attempted to be used as an instrumentality in
397 the commission of, or in aiding or abetting in the commission
398 of, any felony, whether or not comprising an element of the
399 felony, or which is acquired by proceeds obtained as a result of
400 a violation of the Florida Contraband Forfeiture Act.
401 6. Any real property, including any right, title,
402 leasehold, or other interest in the whole of any lot or tract of
403 land, which was used, is being used, or was attempted to be used
404 as an instrumentality in the commission of, or in aiding or
405 abetting in the commission of, any felony, or which is acquired
406 by proceeds obtained as a result of a violation of the Florida
407 Contraband Forfeiture Act.
408 7. Any personal property, including, but not limited to,
409 equipment, money, securities, books, records, research,
410 negotiable instruments, currency, or any vessel, aircraft, item,
411 object, tool, substance, device, weapon, machine, or vehicle of
412 any kind in the possession of or belonging to any person who
413 takes aquaculture products in violation of s. 812.014(2)(c).
414 8. Any motor vehicle offered for sale in violation of s.
415 320.28.
416 9. Any motor vehicle used during the course of committing
417 an offense in violation of s. 322.34(9)(a).
418 10. Any photograph, film, or other recorded image,
419 including an image recorded on videotape, a compact disc,
420 digital tape, or fixed disk, that is recorded in violation of s.
421 810.145 and is possessed for the purpose of amusement,
422 entertainment, sexual arousal, gratification, or profit, or for
423 the purpose of degrading or abusing another person.
424 11. Any real property, including any right, title,
425 leasehold, or other interest in the whole of any lot or tract of
426 land, which is acquired by proceeds obtained as a result of
427 Medicaid fraud under s. 409.920 or s. 409.9201; any personal
428 property, including, but not limited to, equipment, money,
429 securities, books, records, research, negotiable instruments, or
430 currency; or any vessel, aircraft, item, object, tool,
431 substance, device, weapon, machine, or vehicle of any kind in
432 the possession of or belonging to any person which is acquired
433 by proceeds obtained as a result of Medicaid fraud under s.
434 409.920 or s. 409.9201.
435 12. Any personal property, including, but not limited to,
436 any vehicle, item, object, tool, device, weapon, machine, money,
437 security, book, or record, that is used or attempted to be used
438 as an instrumentality in the commission of, or in aiding and
439 abetting in the commission of, a person’s third or subsequent
440 violation of s. 509.144, whether or not comprising an element of
441 the offense.
442 Section 15. The amendments made to ss. 509.144 and 932.701,
443 Florida Statutes, and the creation of s. 901.1503, Florida
444 Statutes, by this act do not affect or impede the provisions of
445 s. 790.251, Florida Statutes, or any other protection or right
446 guaranteed by the Second Amendment to the United States
447 Constitution.
448 Section 16. This act shall take effect upon becoming a law.
449
450 ================= T I T L E A M E N D M E N T ================
451 And the title is amended as follows:
452
453 Delete everything before the enacting clause
454 and insert:
455 A bill to be entitled
456 An act relating to public lodging establishments and
457 public food service establishments; amending s.
458 509.013, F.S.; excluding nonprofit organizations
459 providing certain housing from the definition of
460 “public lodging establishment”; amending s. 509.032,
461 F.S.; conforming provisions to changes made by the
462 act; prohibiting local governments from regulating,
463 restricting, or prohibiting vacation rentals based
464 solely on their classification, use, or occupancy;
465 providing exceptions; revising authority preempted to
466 the state with regard to regulation of public lodging
467 establishments and public food service establishments;
468 amending ss. 509.221 and 509.241, F.S.; conforming
469 provisions to changes made by the act; amending s.
470 509.242, F.S.; providing that public lodging
471 establishments formerly classified as resort
472 condominiums and resort dwellings are classified as
473 vacation rentals; defining the term “vacation rental”;
474 amending s. 509.251, F.S.; conforming provisions to
475 changes made by the act; amending s. 509.261, F.S.;
476 revising penalties for public lodging establishments
477 and public food service establishments operating
478 without a valid license; amending s. 509.291, F.S.;
479 revising membership of the advisory council of the
480 Division of Hotels and Restaurants of the Department
481 of Business and Professional Regulation; requiring the
482 Florida Vacation Rental Managers Association to
483 designate a member to serve on the advisory council;
484 amending ss. 381.008 and 386.203, F.S.; conforming
485 provisions to changes made by the act; providing a
486 short title; amending s. 509.144, F.S.; revising
487 definitions; providing additional penalties for the
488 offense of unlawfully distributing handbills in a
489 public lodging establishment; specifying that certain
490 items used in committing such offense are subject to
491 seizure and forfeiture under the Florida Contraband
492 Forfeiture Act; creating s. 901.1503, F.S.;
493 authorizing a law enforcement officer to give a notice
494 to appear to a person without a warrant when there is
495 probable cause to believe the person violated s.
496 509.144, F.S., and the owner or manager of the public
497 lodging establishment and one additional affiant sign
498 an affidavit containing information supporting the
499 determination of probable cause; amending s. 932.701,
500 F.S.; revising the definition of the term “contraband
501 article”; providing that specified portions of the act
502 do not affect or impede specified statutory provisions
503 or any protection or right guaranteed by the Second
504 Amendment to the United States Constitution; providing
505 an effective date.