FHBA Legislative Update - February 28, 2022 -

FHBA Legislative Update—Week VII

2022 Regular Legislative Session

As we enter the last two weeks of the 2022 Regular Session, lawmakers and lobbyists alike will be scrambling to amend bills that are moving and secure final appropriations for local projects. The conference committees have not yet been appointed but both chambers indicated the allocations for the subcommittees have been decided and work begins on Monday to bring the budget in for a landing. Bills of interest relating to an omnibus tax cut package, private providers for septic tanks, construction defects, CDDs and school concurrency moved forward, while many other bills appear to be dead this Session. Additional bills of interest are outlined below and you may view the bills by clicking on the bill numbers.

Tax Cut Package—HB 7071(WMC1) by H. Ways & Means & Rep. Payne

HB 7071 is an omnibus tax relief package which includes provisions for property tax relief for homestead property rendered uninhabitable for 30 days or more and for all assessments for owners affected by the Surfside collapse; revises some corporate tax provisions and includes the following key provisions:

A 14- day “back-to-school” tax holiday in July & August;
A 14-day “disaster preparedness” tax holiday in May & June for supplies and pet supplies;
A 7-day “Freedom Week” tax holiday in July for recreational items & activities;
A 7-day tax holiday in September for tools & equipment needed in skilled trades;
A two-year tax exemption for impact-resistant window, doors and garage doors for residential buildings;
A one-year exemption for baby & kids clothing, shoes, diapers;
A 6-month exemption for ENERGY STAR appliances;
A 3-month exemption for children’s books;
An exemption for machinery & equipment used in the production of green energy;
A sales tax exemption for admissions to Formula One Grand Prix races; and,
A reduction from 6% to 3% for new mobile homes.

ACTION: HB 7071 unanimously passed full Appropriations on Feb. 22 and is now on the H. Calendar for March 1. The proposed list of tax-exempt skilled- trades items include:
— Toolboxes for vehicles selling for $300 or less.
— Power tools selling for $250 or less.
— Power tool batteries selling for $150 or less.
— Industry textbooks and code books selling for $125 or less.
— Work boots selling for $120 or less.
— Electrical voltage & testing equipment selling for $100 or less.
— Handheld pipe cutters, drain opening tools, & plumbing inspection equipment for $100 or less.
— Toolboxes selling for $75 or less.
— Hand tools, protective coveralls, tool belts, duffle/tote bags, and LED flashlights and shop lights selling for $50 or less.
— Work gloves and safety glasses selling for $25 or less.
Private Provider Septic Tank Inspections–HB 309 by Rep. Fetterhoff and SB 856 by Sen. Brodeur

This FHBA priority legislation authorizes the owner of a septic tank or the contractor upon the owner’s written authorization and contract to hire a private provider to inspect the septic tank. The bills provide qualifications the provider must hold to perform such inspections, prohibit DEP from charging any fees associated with a private provider inspection, and authorize DEP to audit the performance of such inspections. Notice must be given to DEP that the private inspection will be done and the owner is required to execute a form acknowledging that the owner must hold the department harmless from any claims arising from the use of the private provider inspection. HB 309 also prohibits a septic tank from being inspected by the person or company that installed the septic tank and an amendment will be offered to SB 856 to match. The bills authorize the department to audit “up to 25 percent of private providers each year.”

ACTION: HB 309 was approved unanimously by H. State Affairs Committee this week. SB 856 passed S. Appropriations Committee and is on Special Order Calendar for March 1.

Construction Defects—HB 583 by Rep. Yarborough and SB 736 by Sen. Hutson

This legislation attempts to fix the “Notice & Right to Repair” law in Chapter 558, F.S., and reign in the fraudulent construction defect claims while still maintaining a remedy for homeowners with legitimate issues.

ACTION: HB 583 was amended significantly in H. Judiciary on Feb. 23 and passed by a vote of 17-2, Reps. Plakon and Learned dissenting. HB 583 is now on the H. Calendar. There are several key problems with HB 583 including the changes to statute of repose, repealing Chapter 558, F.S., and adding a “material violation” repose period. We are trying to resolve the issues working with the House and Senate sponsors. SB 736 passed the Senate by a vote of 26-13, with Democrats Gibson and Stewart breaking party line to vote for the bill. SB 736 provides several different limitations periods for filing a construction defect claim (4 years, 7 years, 10 years, unlimited) depending on whether the defect is “latent” or not, whether the claimant can show the defect was fraudulently concealed by the contractor, and the type of building (single-family residence vs. everything else). SB 736 also requires a notice of claim to include an inspection report describing the alleged construction defect and requires a claimant to utilize any settlement funds to pay for repairs.

Municipal Contraction (Deannexation) Procedures —HB 1401 by Rep. Persons-Mulicka and SB 1876 by Sen. Perry

An FHBA initiative, these bills outline requirements that must be followed prior to holding a referendum proposing to contract an area of a municipality. If more than 70 percent of the land in an area proposed to be contracted is owned by persons or legal entities that are not registered electors of the area, then the area may only be contracted if the owners of more than 50 percent of the total land area to be contracted consent to the contraction. If the area to be contracted does not have any registered electors then the proponents of contraction must obtain the consent of the owners of more than 50 percent of the total land area before final adoption of the ordinance of contraction.

ACTION: No movement this week so FHBA staff is exploring alternative vehicles to amend with the contraction provisions. 1401 unanimously passed H. Local Administration & Veterans Affairs on Feb. 2. SB 1876 is awaiting action in S. Community Affairs.

School Concurrency—HB 851 by Rep. McClain and SB 706 by Sen. Perry

The initial version of this legislation would require, rather than encourage, local governments that adopt school concurrency to apply concurrency to development on a districtwide basis. The bills also provide that proportionate-share mitigation may be set aside and not spent if improvements have not been identified, a sort of “pay-as-you-go” provision.

ACTION: SB 706 passed the full Senate 38-0 on Feb. 17 and is in H. Messages. HB 851 sailed thru H. State Affairs on Feb. 21 and is now on the H. Calendar.

Liens & Bonds—HB 345 by Rep. Overdorf and SB 1272 by Sen. Bradley

Here we go again—these companion bills include many of the same provisions we have battled in the past two legislative sessions, although there are some good provisions that improve the notice process. The bills include stop-start language, clarification on the use of lien waivers and releases and modify the definition of contractor and real property.

ACTION: FHBA fought off a bad amendment that had resurfaced. HB 345 was favorably amended and passed H. Judiciary on Feb 23 and is now on the H. Calendar. SB 1272 is awaiting action in S. Judiciary.

Notice of Commencement Requirements–HB 263 by Rep. Bell and SB 352 by Sen. Hooper

HB 263 was amended to increase the exemption from the NOC filing requirement from the current $2,500 to $5,000. The bill also increases the threshold for application of the Notice of Commencement (NOC) requirements for direct contracts to repair or replace an existing HVAC system from $7,500 to $12,500. The bill also requires the NOC issuing authority to verify the address of the contractor listed on the Notice, in addition to the contractor’s name, which is required by current law. The Senate bill increases the threshold from $7,500 to $15,000. It does not increase the threshold for the filing of an NOC outside the context of an HVAC repair, nor does it include the contractor address verification requirement.

ACTION: No movement this week. HB 263 is on 2^nd Reading on the H. Calendar; SB 352 passed the Senate 37-0 on Feb. 3 and is in H. Messages.

Constitutional Prohibition Against Lobbying by a Public Officer/CDDs –HB 7001 by the Rep. Koster & H. Public Integrity & Elections Committee

Another key bill for FHBA, HB 7001 implements the public officer lobbying prohibitions required by a 2018 amendment to the Florida Constitution passed by Florida voters which is slated to take effect on December 31, 2022. The bill defines terms and provides enforcement mechanisms and penalties. HB 7001 defines a “public subdivision” to include a “special district with ad valorem taxing authority,” which could include Community Development Districts. With regard to political subdivisions, the bill defines the term “lobby” to mean “influencing legislative actions or other discretionary decisions, but does not include administrative actions.” The bill also specifies that the term “lobby for compensation” does not include an officer of a governmental entity or other public employee “acting in the normal course of his or her duties.” Violations may be punished by one or more of the following: public censure and reprimand; a civil penalty not to exceed $10,000; and forfeiture of any pecuniary benefits received for any violation.

ACTION: FHBA worked with the bill sponsor to clarify that CDD board members are not covered by the lobbyist definition in the bill. HB 7001 passed the full House 117-0 on Feb. 10, was sent to S. Rules and sailed thru S. Rules on Feb. 15. HB 7001 then passed the full Senate 39-0 on Feb. 23.

Building Plans—HB 635 by Rep. Maggard and SB 644 by Sen. Brodeur/HB 423 by LaMarca

These bills prohibbit local governments from making substantive changes to building plans after a permit has been issued, unless the changes are required to bring the plans into compliance with the Building Code or the Fire Prevention Code. If a local government makes substantive changes to building plans, it must notify the permitholder of the specific reasons for the changes. The bills also require a local fire official to notify a permit applicant if the plans do not comply with the Fire Prevention Code of the specific reasons the plans are not in compliance. The bills also place new restrictions on local governments’ ability to prevent property owners from demolishing single-family buildings in flood zones. The legislation (HB 423) was further amended to limit how many times local governments may request information from a building permit applicant and specifies timeline for the local government to act on the application and approve or deny the permit. Provisions limiting local government authority relating to demolition of a single-family residential structure located in the coastal high-hazard area, moderate flood zone or special flood hazard area were also added to the bill

ACTION: HB 423 was amended to mirror HB 635 with an additional provision that allows an owner, builder or state association representing owners and builders who pull permits and pay fees to bring a civil action against local governments that do not comply with statutes regarding excess permit fee funds. SB 644 by Sen. Brodeur was temporarily postponed on Special Order Calendar on Feb. 23 as the Senate is waiting on the House bill to come over to the Senate.

Mandatory Building Inspections—SB 1702 by Sen. Bradley

SB 1702 includes several of the recommendations from the Florida Bar RPPTL Condominium Law and Policy Life Safety Advisory Task Force. Specifically the bill requires a milestone inspection for all multifamily residential buildings three-stories or more by December 31 of the year in which the building reaches 30 years old, and every 10 years after the first inspection. For buildings located within 3 miles of the coastline, the inspection period begins at 20 years, with subsequent inspections every 7 years. The inspections do not apply to two-family dwellings or buildings less than 3500 square feet. For buildings occupied before July 1, 1992, the first milestone report is due by December 31, 2024. The bill outlines the two phases of the milestone inspection with Phase I being a visual inspection conducted by a licensed architect or engineer to perform a qualitative assessment of the structural conditions of the building. Phase II inspection occurs if structural distress is identified in Phase I, and may only be performed by a special threshold inspector and destructive testing may occur during this phase. Once inspections are completed, the architect, engineer or threshold inspector must send a sealed copy of their report to the building owner, or if a condominium, the condominium administrator, each condominium owner and it must be posted on the website, even if no deficiencies are identified. The report must also be sent to the local building official. The local enforcement agency may establish timelines and penalties and the bill grants the Florida Building Commission the authority to develop structural and life safety standards for maintaining and inspecting all buildings types for local governments to voluntarily adopt.

ACTION: SB 1702 was reported favorably by S. Rules on Feb. 23 and is now on the S. Calendar. SB 1702 was amended to include some of the Surfside Task Force recommendations, such as unit owner access to records and reports, reserve funding disclosures and alternative funding mechanisms for maintenance, repair and reserve funding obligations. It includes mandatory reserve studies every three years and provides specific provisions related to funding of reserves. SB 1702 allows a developer to waive reserves only if the association’s reserve obligations are funded consistent with the reserve study in effect or the association provides an alternative funding mechanism for the association’s reserve obligations.

Community Association Building Safety—SB 7042 by Senate Regulated Industries and HB 7069 by Pandemics & Public Emergencies Committee

SB 7042 incorporates some of the recommendations of the Surfside Task Force relating to building safety. Importantly, the bill includes the milestone inspection requirement performed by a licensed architect or engineer for buildings three stories or more once the building reaches 30 years of age and every 10 years thereafter. For buildings within 3 miles of the coast, the milestone inspection must take place at 20 years of age and every 7 years thereafter. The milestone inspection includes two phases: visual inspection and structural inspection. The bill includes maintenance obligations for condominiums and cooperatives and authorizes condominium boards to adopt a special assessment or borrow money without owner unit approval. The bill mandates reserve studies every three years and revises requirements for developer turnover reports.

The companion bill, HB 7069 is similar but includes building recertification requirements every 30 years for buildings 3 stories or higher after initial occupancy and 25 years after initial occupancy for buildings within 3 miles of the coast and requires recertification every 10 years after initial recertification. The bill also requires structural integrity reserves studies every 10 years and prohibits waiver of funding of certain reserves and requires developers to conduct structural integrity reserves studies prior to turning over an association to the unit owners. The bill also repeals the ability of developers to waive the collection of all types of reserve funds. The structural integrity reserves studies, Phase 2 inspections and recertifications must be conducted by a licensed engineer or architect.

ACTION. SB 7042 passed S. Regulated Industries 8-0 on Feb. 1 and travels to S. Appropriations next. HB 7069 passed the full House on Feb. 24 by a vote of 114-0.

Heat Illness Prevention in Outdoor Work Environments—HB 887 by Rep. Chambliss and SB 732 by A. Rodriguez

HB 887 and its companion require employers of employees who work primarily outdoors (agriculture, construction, landscaping) to provide drinking water, access to shade, implement an outdoor heat exposure safety program and provide annual training to employees and supervisors on heat illness prevention and treatment. These requirements are supplemental to all related industry-specific standards.

ACTION: No movement this week which signals the bill is most likely dead for this Session. SB 732 was reported favorably by S. Agriculture on Jan. 19; HB 887 goes to H. Regulatory Reform first. We were informed by the Senate Sponsor that the bill will not move any further through the process.

Florida Building Code & Florida Fire Prevention Code Timing—HB 659 by Rep. Harding and SB 626 by Sen. Wright

In order to ensure time for training and understanding these bills provide for a delay in implementation for the Florida Building Code and Florida Fire Prevention Code as well as ensuring the Energy Code compliance software is available prior to effective date of a new code. FHBA has been working with the State Fire Marshal’s Office to ensure a 3-month delay and is negotiating with the Dept. of Business & Professional Regulation for a similar solution for the energy compliance software.

ACTION: No action this week and it appears this bill is dead for this Session. HB 659 will start in H. Regulatory Reform and SB 626 travels to S. Community Affairs.

Sales Tax Refund for Building Mitigation Improvements—HB 863 by Rep. DiCeglie and SB 1250 by Sen. Gruters

These bills provide a sales tax refund on building materials utilized for building mitigation retrofit improvements. Building mitigation improvements include installation of a roofing underlayment; roof covering replacement; strengthening of roof-to-wall connections, soffits and attic ventilations; and the installation of impact-resistant windows and entry doors. The bills specify the procedures for validating improvements and submittal for refund of sales tax paid on materials.

ACTION: A sales tax refund for impact-resistant windows, doors and garage doors was included this week in the omnibus sales tax package in H. Ways & Means.

Mobility Fees —HB 1415 by Rep. Robinson and SB 1824 by Sen. Brodeur

The bills require local governments to adopt either a transportation concurrency system or a mobility plan and fee system. The bills also prescribe a number of requirements with which local mobility plans would have to comply. Existing mobility plans previously adopted by local governments would have to be revised in order to comply with the law. The bills require that an adopted mobility fee be updated at least every five years, otherwise the fee is rendered void by operation of law. There are a number of issues raised by the bill, including seeming internal inconsistencies, the deletion of a requirement that such plans utilize “professionally accepted techniques,” the method of accounting for extra-territorial impacts (which the bills appear to require to be factored into any fee charged to a developer), and how existing credits would be treated by newly adopted mobility plans or transferred from one type of credit to another type of credit in the adopted mobility plan.

ACTION: The bill sponsor has agreed not to move the bill this Session in response to our concerns.