2023 FHBA Legislative Session Priorities & Issues

The Florida Home Builders Association has outlined the following pieces of legislation as priorities for the 2023 Legislative Session. While these issues remain a top concern, this is by no means an exhaustive list. Further, the FHBA governmental affairs team continues to monitor legislation as it is filed to ensure that implications of potential laws are analyzed. The top priority when evaluating any proposed regulation is to ensure a favorable home building economy and to defend the industry against any threats that may jeopardize the home building industry.

Key Priorities

Construction Defects (Right to Repair)

SB 360 by Sen. Travis Hutson (R-Palm Coast) / HB 85 by Rep. John Snyder (R-Stuart)

The problem: A niche group of lawyers have taken advantage of Florida’s Right to Repair law and turned it into a settlement factory.  Claims are being filed for even the most minute issues; many of which have no bearing on a home’s performance. The result only raises the costs of construction and further burdens Floridians by increasing the cost of housing. 

This bill creates a solution by: 

  • Narrowing the suit “on-ramp” to ensure that this law defines a material violation as something that has or could reasonably result in results in system failure or bodily harm. This ensures that the definition of a “material violation” is in line with the definition provided by the Florida Building Code.
  • Reducing the statute of repose from 10 years to 7 years, thus further ensuring suits are not filed as a result of faulty/deferred maintenance. 
  • Clarifying how to determine when the repose period begins by clearly stating it starts at the time a certificate of occupancy, temporary certificate of occupancy or certificate of completion is issued. 

Testa Case Fix (Local Ordinances)

SB 1170 by Sen. Jay Trumbull (R-Panama City)

The problem: A recently rendered court opinion, Testa vs. the Town of Jupiter Island, has turned common notice practice on its head. This calls into doubt any ordinance decided at a continued public hearing. The bottom line is that until now, the longstanding practice has been that if a proposed ordinance duly advertised pursuant to F.S. 166.041(3)(a) is continued on second reading (on the record) for consideration at a subsequent public meeting, local governments throughout Florida have not been required re-advertise the proposal in a newspaper of general circulation. According to this (terrible) opinion, all local governments must now re-advertise. This applies to any ordinance, including things like changes in zoning or amendments to a local jurisdiction’s comprehensive plans. The case of Testa vs. the Town of Jupiter Island has huge impacts on both future and past local ordinances, as those passed without “properly noticing” continuances could be potentially rendered null and void due to being approved without proper notice, up to five years prior.

We are seeking a solution by:

  • FHBA is working diligently with other organizations, including the Florida League of Cities and the Florida Association of Community Developers, on an amendment to overturn this case.
  • During organizational committee weeks, a fix was amended into SB 170 by Sen. Trumbull. This good bill was filed as a result of cities and counties often passing ordinances that do not take into consideration the impact that it will have on local businesses.
  • SB 170 would require municipalities to produce a “business impact estimate” prior to passing the ordinance. Additionally, the bill imposes certain condition son lawsuits brought by any party to challenge the legal validity of the ordinance as preempted by state law, arbitrary, or unreasonable.
  • As amended, the proposed bill also allows for properly noticed consideration of a proposed ordinance may be continued to a subsequent meeting if certain conditions are met.

Local Licensing (Specialty Contractors)

SB 1584 by Sen. Keith Perry (R-Gainesville) / HB 1383 by Rep. Dana Trabulsy (R- Ft. Pierce)

This July HB 735, as passed in 2021, is set to be implemented. This bill prohibits local governments from requiring an occupational license that is not already required by the State. This law was a result of tradesmen, such as tile layers, required to obtain a license from every municipality in their area. Being seen as a hurdle to fostering business, the need for multiple licenses was considered red tape and unnecessary.

The problem: The law has now been interpreted to require that anyone performing a trade permitted by a local jurisdiction but not licensed by the state, either become a General Contractor or work for a General Contractor. This is not the intention of the recently passed law.

This bill creates a solution by:

  • Clarifying that state specified specialty licenses do not require additional licensing at the local level;
  • Preventing local governments from requiring a license for specialty contractors to obtain a local permit for a job within their limited scope of work.

DEP Stormwater Rule

The Florida Department of Environmental Protection (DEP) has proposed sweeping changes to the stormwater rules after the passage of the Clean Waterways Act, SB 712, in 2020.

The problem: The rule, as proposed, raises the cost of housing and will be nearly impossible to abide by. Because of the substantial cost, DEP is required to have the rule ratified by the Legislature.

We are seeking a solution by:

In addition to FHBA meeting with DEP, the FHBA advocacy team has joined forces with a coalition of associations who agree. The group has held several meetings with DEP staff and with Shawn Hamilton, Secretary of the DEP. FHBA Director of Government Affairs and Staff Counsel, Ashton Mears, as well as FHBA President, Frank Severino, also met with Governor DeSantis’s Office of Budget and Policy to underscore the fact that we understand the need to update rules, but the rule as proposed has some major gaps, and will not make housing more affordable. The advocacy team has also met with key members of the Legislature to underscore the issues in ratification and will continue to do so as the Session begins. 

Additional Priorities

Impact Fees (Alternative Mobility Funding Systems)

SB 350 by Sen. Jason Brodeur (R-Lake Mary) / HB 235 by Rep. Will Robinson (R- Bradenton)

In 2021, the impact fee bill passed into law limited what impact fees could be used for, clarified the retroactivity of impact fee credit portability, and attempted to cap the amount of impact fee increases. The legislature added a bypass to the capped fee increases, if the local jurisdiction could prove “extraordinary circumstances.”

The problem: The law provides no definition of “extraordinary circumstances,” and local governments seem to be using the bypass with regularity. It is becoming the rule and not the exception that the fees are not capped as intended. The impact fee cap increase is a very liberal 12.5%. Bypassing this cap does not provide the stability and predictability needed to plan houses and communities years in advance.

We are seeking a solution by:

Working with bill sponsors to ensure the bill passed includes a definition defining “Extraordinary Circumstances.”

Contraction (De-Annexation)

SB 718 by Sen. Clay Yarborough (R-Jacksonville) / HB 653 by Rep. Jennifer Canady (R-Lakeland)

Under Chapter 171, there are both annexation and de-annexation statutes. The de-annexation statute was established in 1974, and the annexation statute was established in 1975.  Although the annexation statute was amended in 1976 to include landowner consent language.

The problem: At that time, the same language was NOT added to the de-annexation statute. 

This bill creates a solution by:

  • Adding the same amendment from 1976 (current law – Section. 171.0413, F.S.) to the de-annexation statute under Section 171.051 F.S.;
  • Ensuring when voters decide to de-annex from the City, that majority landowners would have a voice in the decision process to de-annex/contract;
  • Ensures that if more than 70% of the land in an area proposed to be contracted is owned by individuals, corporations, or legal entities that are not registered electors of the area, the area may not be contracted unless the owners of more than 50% of the land in the area to be contracted consent to the contraction.

Take note:

There is a de-annexation dispute in Sarasota County involving landowners in the City of North Port.  Some residents would like to de-annex, but other landowners do not because they have certain entitlements with the city, vested rights, and have made prior contributions to infrastructure.  A suit is pending.

This language is NOT retroactive with respect to that case but would ensure that large property owners are treated equitably in the future. This case brought to light how large property owners are disenfranchised in the de-annexation process.

Building Code Timing

Implementation of the 7th Edition (2020) Florida Building Code was nearly disastrous, due to the energy software not being ready for industry testing until early November (effective date of the code: December 31, 2020). Fortunately, the energy updates were minimal, and the software did not require a major re-write. The Florida Fire Prevention Code also necessitated a last-minute change, prior to its publishing.

We are seeking a solution by:

Supporting legislation that grans the Building Commission the ability to delay the Energy Portion of the building code if the energy software is not finalized at least three months prior to the date a new Building Code Implementation is to take effect.

Self-Attestation (Construction Fraud)

The problem: Self-attestation in the application process is leading to construction fraud and unqualified applicants are becoming certified contractors.

We are seeking a solution by supporting legislation that:

  • Eliminates “self-attestation” from the application process and return to a notarized process where a certified contractor qualifies a new applicant;
  • Whereas the contractor certifies that they have direct knowledge of the work experience of the applicant and that he/she meets the requirements for a certified contractor licensure, as set forth in Florida Statute and Administrative Code. Further, the contractor qualifying the license must understand that their license can be subject to discipline if the information given and attested to is found to be purposely misleading and fraudulent.

Mitigation Banking

HB 1167 by Rep. Wyman Duggan (R-Jacksonville)

The problem:

Wetland mitigation banking credits are difficult to obtain in certain areas around the state. Even if the water management district website lists a mitigation bank as having available credits, they are often reserved and not available for purchase. As this issue grows, FHBA has been working with the mitigation banking industry crafting proposed legislation to access additional available credits.

This bill creates a solution by:

  • Allowing a developer to utilize credits in an adjacent basin if no credits are available and provides a mechanism to expedite credit release if certain criteria are met.

Take note: We expect a companion bill to be filed in the Senate by Sen. Nick DiCeglie (R- St. Petersburg)

Housing

SB 102 by Sen. Alexis Calatayund (R-Miami) / HB 627 by Rep. Demi Busatta Cabrera (R-Coral Gables)

The problem: It is continuously getting harder and harder to attain affordable housing for many of Florida’s 21 million residents.

This bill works to create some solutions by:

  • Appropriating $711 million to SAIL and SHIP programs;
  • Codifying the Hometown Heroes down payment assistance program, and expanding eligible recipients which may include workers in the trades;
  • Preempting some of local governments’ zoning requirements;
  • Preventing any local government to place rental caps;
  • Requiring cities and counties to update and publish an inventory of publicly owned properties and encourages them to be used for affordable housing.

Take note: This is one of the session priorities for Senate President Kathleen Passidomo.

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