CS/HB 63

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

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