FHBA Legislative Update—Week IV
2022 Regular Legislative Session
Week IV of the 2022 Regular Session ended with lawmakers sending the approved House and Senate redistricting maps to the Florida Supreme Court for approval. Interestingly, Governor DeSantis halted the Congressional redistricting map pending a ruling on the North Florida district that spans from Jacksonville to the Panhandle for minority representation. Legislators closed out the week with the budget allocations for each Chamber with the Senate “spending” an historic $108.6B and the House answering with $105.3B spending plan—both more that the Governor’s proposal of $99B+. The House Infrastructure budget of $15.6B does not include funding to replace the gas tax for five months that the Governor requested, neither does the Senate Infrastructure proposal which caps at $15.1B. The Governor requested $100M for Infrastructure & Job Growth training, but the House only dedicated $25M. The transportation work program would receive $10.8B in both proposals. The House includes $268.1M in State Housing Initiative Partnership (SHIP) and the Senate budgeted $209.5M for SHIP and $128.3 for other affordable housing programs.
Bills relating to construction defects, lien law, building plans and contraction advanced this week. Additional bills of interest are outlined below and you may view the bills by clicking on the bill numbers.
- 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: No movement this week. FHBA has been working with DEP and drafted amendments to require a study, permit DEP to charge an administrative fee and delete Section 2 of the bill, which was redundant. SB 856 is awaiting action in the S. Appropriations Committee, final stop before the Senate floor. Disappointedly, HB 309 did not make the agenda for the Feb. 7 Appropriations Subcommittee on Environment, Agriculture & Flooding. We continue to put pressure on lawmakers to move these bills forward to alleviate the costly delays on inspections.
- Construction Defects—HB 583 by Rep. Yarborough and SB 736 by Sen. Hutson
A top priority for FHBA, 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. SB 736 has passed two committees and key provisions of the Senate bill include reducing the Statute of Repose (SOR), mandating claimant to provide reason for rejecting offer of settlement or repair, and changing the “clock” timeline from “the later of” to “the earlier of.” The Florida Justice Association is floating an amendment to require mediation as an alternative to Chapter 558, F.S.
ACTION: On Feb. 3, SB 736 was amended in S. Rules Committee and passed 11-4. Importantly, the bill now includes a 5 year SOR for single-family and 10 years for all other construction. It also starts the “clock” earlier for SOR and includes an inspection prior to filing a Chapter 558 claim as well as a focus on repair. The House continues to work on an amendment to add SOR, earlier “clock” and material violation definition. HB 583 is in the H. Regulatory Reform Committee and is expected to be heard next week.
- 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. Per SB 1876, 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. The House Bill will be amended to match the Senate companion.
ACTION: HB 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 S. Education Committee on Feb. 1. HB 851 will be heard Feb. 8 in H. Education & Employment.
- 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: HB 263 is on 2nd Reading on the H. Calendar; SB 352 passed the Senate 37-0 on Feb. 3 and is in H. Messages.
- 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. NUCA of Florida, FHBA and AGC continue to meet with the bill sponsors along with representatives of the Florida Bar and the material suppliers to see where we can come to agreement.
ACTION: HB 345 was amended to address our concerns and unanimously passed H. Regulatory Reform on Feb. 3; SB 1272 was amended and passed S. Banking & Insurance but will need to be further amended to address concerns in its next stop.
- 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. HB 659 will start in H. Regulatory Reform and SB 626 travels to S. Community Affairs.
- 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: HB 7001 is on the H. Special Order Calendar for Feb. 9. FHBA worked with the bill sponsor to clarify that CDD board members are not covered by the lobbyist definition in bill. No Senate companion has been filed, so a committee bill will need to emerge.
- 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: 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.
- Sales Tax Refund for Building Mitigation Improvements—HB 863 by Rep. DiCeglie and SB 1250 by Sen. Gruters
This legislation would provide a sales tax refund on building materials utilized for building mitigation retrofit improvements. Building mitigation improvements 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: No action this week. HB 863 will be heard first in H. Regulatory Reform and SB 1250 goes to S. Community Affairs. We have been told to expect the bill to be included in the omnibus Finance and Tax package.
- Building Plans—HB 635 by Rep. Maggard and SB 1020 by Sen. Perry
HB 635 prohibits 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 bill also requires 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 bill also places new restrictions on local governments’ ability to prevent property owners from demolishing single-family buildings in flood zones. The Senate Bill is much more limited than the current version of the House Bill, and primarily provides that local officials do not have the authority to change building plans that have already been approved and sealed by the local building department.
ACTION: No action this week. HB 635 is now the vehicle for the permitting/plans issue. HB 635 was amended and passed H. Regulatory Reform unanimously and will be heard in H. Local Administration & Veteran Affairs Committee on Feb.7. SB 1020 awaits its first hearing in the S. Community Affairs Committee.
- 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 passed S. Regulated Industries 8-0 on Feb. 1 and is now in S. Rules.
- Community Association Building Safety—SB 7042 by Senate Regulated Industries
This legislation 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.
ACTION: SB 7042 passed S. Regulated Industries 8-0 on Feb. 1 and travels to S. Appropriations next.
- 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 bills have not been placed on the agenda of a committee in either the House or the Senate. At the request of Rep. Robinson, we met with the lobbyist that we understand to be the prime mover behind the bills to discuss the above issues and seek clarification. We have provided a memo regarding our concerns to key legislators and do not expect the bills to move much beyond their first committees of reference.