Preview of the 2018 Legislative Session: Preemption bills and unfunded mandates

Old Florida State Capitol Building in Tallahassee

Submitted by Suanne Z. Thamm
Reporter – News Analyst
December 22, 2017 3:00 p.m.

The Florida Legislature is already hard at work preparing bills for consideration during their 2018 Session. And the Florida League of Cities is also hard at work trying to identify those bills that would be beneficial or detrimental to the state’s municipalities.

The Florida League of Cities is the united voice for Florida’s municipal governments. Its goals are to serve the needs of Florida’s cities and promote local self-government.The League was founded on the belief that local self-government is the keystone of American democracy.

Tracking Senate (flsenate.gov) and House Bills (flhouse.gov) is the work that lobbyists do on behalf of their clients. But citizens who have particular interest in a bill also have tools to track bills as bills wend their way through various committees where they may be amended or die on their way to the floor.

Although it is early yet in the legislative year, the Florida League of Cities has identified the bills listed below as ones they are opposing on behalf of Florida cities, either because they override local ordinances (preemption) or they push funding for the law onto local governments (unfunded mandates).  Note that preemption bills may or may not have merit.  But it is the position of the League that local government should decide these issues, not the state.

Below are only some of the bills that have been filed thus far. Names of sponsoring legislators appear in parentheses following the bill number. All information and summaries has been taken from the Florida League of Cities website provided below:

http://floridaleagueofcities.com/advocacy/legislative-bill-summaries

As the old saying goes, no man’s life, liberty or property are safe while the legislature is in session.

Florida Building Commission (Preemption)

HB 299 (McClain) revises the membership of the Florida Building Commission from 27 members to 11. This bill also deletes the ability of the Florida League of Cities (FLC) and the Florida Association of Counties (FAC) to recommend a list of candidates for consideration to the commission. Under current law, FLC and FAC have a joint representative on the FBC.

Community Redevelopment Agencies (Preemption)

HB 17 (Raburn) and SB 432 (Lee) increase audit, ethics, reporting and accountability measures for community redevelopment agencies (CRAs). The bills require CRAs to annually submit additional reporting information to the state, including performance data for each CRA plan, number of projects started, total number of projects completed, commercial property vacancy rates, amount expended on affordable housing, etc. The bills require CRA procurement to comport with city and county procurement procedures. Of specific concern to cities, HB 17 outlines a process by which CRAs can be phased out, unless reauthorized by a super majority vote of the body that created the CRA. Additionally, HB 17 prohibits the creation of a new CRA unless authorized by a special act of the Legislature. SB 432 differs from HB 17 in that it does not provide for the phase out of existing CRAs or require legislative approval of new CRAs. SB 432 contains additional provisions that would cap administrative spending at 18 percent. In addition, SB 432 prohibits tax increment expenditures on festivals, street parties, grants to promote tourism, and grants to socially beneficial programs. SB 432 would also change CRA board composition by requiring the appointment of two non-elected members. Lastly, SB 432 would require CRAs to create lobbyist registrations for individuals who lobby the CRA.

Health Care Facility Regulation (Preemption)

SB 622 (Grimsley) and HB 597 (Yarborough) are comprehensive bills dealing with health care facilities. Of concern to cities, the bills provide that a designated health care facility owned or operated by a public health trust and located within the boundaries of a municipality is under the exclusive jurisdiction of the county creating the public health trust and is not within the jurisdiction of the municipality.

Impact Fees (Preemption)

CS/SB 324 (Young) and HB 697 (Miller) prohibit local governments from collecting impact fees prior to the issuance of a certificate of occupancy for the property that is subject to the fee. CS/SB 324 was amended in the Senate Community Affairs Committee to specify the collection of the impact fee be no earlier than the issuance of the building permit for the property that is subject to the fee. In addition, the scope of CS/SB 324 was expanded to codify the dual rational nexus test. The rational nexus test requires that the expenditures of funds collected by an impact fee and the benefits that are accrued to the new construction (both residential and commercial) should be reasonably connected to the need for additional capital used for a major facility, and should be connected to the increased impact caused by said new construction. Additionally, the amendment requires the local government to specifically earmark funds collected by the impact fees for use in acquiring capital facilities to benefit the “new residents.” Finally, the bill prohibits the use of impact fee revenues to pay existing debt or for prior approved projects unless the expenditure is reasonably connected to, or has a rational nexus with, the increased impact generated by the new residential or commercial construction.

Parking Garages (Preemption)

SB 378 (Steube) preempts a city from adopting an ordinance or rule that prohibits a driver from, or authorizes the issuance of a citation to a driver for, back-in parking a vehicle in a parking space located in a parking garage. The bill would void any such ordinance or rule in effect on July 1, 2018.

Discrimination in Employment Screening (Preemption)

SB 702 (Farmer) prohibits a public employer from inquiring into or considering an applicant’s criminal history on an initial employment application, unless otherwise required by law. A public employer could inquire into or consider an applicant’s criminal history only after the applicant’s qualifications have been screened and the employer has determined the applicant meets the minimum employment requirements for the position.

Concealed Weapons or Firearms in Courthouses (Preemption)

SB 134 (Steube) creates a process by which concealed weapons licensees can temporarily surrender a firearm to security or management personnel upon arrival at a courthouse. The bill specifically defines courthouse as “a building in which trials and hearings are conducted on a regular basis,” and would preempt any local ordinance in conflict with this definition. If a building is used primarily for purposes other than the conduct of hearings, trials and housing judicial chambers, the definition only applies to the portion that is primarily used for hearings, trials and judicial chambers.

Red Light Cameras (Preemption)

HB 6001 (Avila), SB 548 (Campbell) and SB 176 (Hutson) preempt the Florida Department of Highway Safety and Motor Vehicles, counties and municipalities from installing and maintaining red light cameras. The Revenue Estimating Conference met on September 22, 2017, and estimated that the bills have a recurring annual impact of $76.8 million to local government revenues.

Utility Work Exemption from Development/Transmission Line Siting (Preemption)

SB 494 (Lee, T.) and HB 405 (Williamson) amend the exemptions from current law “development” and revises statutory provisions applicable to transmission line and power plant siting.  “Development,” as defined in state law, must comply with various state and local regulations, including local government comprehensive plans and development permits. There are various exemptions from the statutory definition of development, including an exemption for work by any utility engaged in transmission and distribution on established rights of way to construct pipes, cables, power lines, poles, etc. The bills specify this exemption also applies to rights of way and corridors yet to be established, and to the creation of distribution and transmission line corridors. The bills also specify the standard to be used in authorizing variances in a site certification under the Power Plant Siting Act and Transmission Line Siting Act.  Finally, the bills provide that the Siting Acts cannot affect the Public Service Commission’s exclusive jurisdiction to require transmission lines to be located underground.

Storm-generated Debris and Solid Waste (Preemption)

HB 879 (Toledo) addresses the regulation and management of recovered materials, solid waste and storm-generated debris. The bill amends the statutory definition of “recovered materials” to include wood, asphalt and concrete. This change would eliminate the authority of local governments to regulate these materials or include them within franchise agreements. The bill also requires local governments to suspend any exclusive contracts for the collection, hauling, staging or disposal of storm-generated debris or commercial or residential solid waste if the local government “reasonably” determines the contractor will not be able to provide the contracted level of service. After March 1, 2018, a local government is prohibited from entering a new exclusive contract, or from extending an existing exclusive contract, for the collection, hauling, staging or disposal of storm-generated debris.  (O’Hara)

Tree Trimming and Removal (Preemption)

SB 574 (Steube) and HB 521 (Edwards) preempt to the state the trimming, removal or harvesting of trees and timber on private property, and prohibit local governments from restricting these activities on private property. The bills also prohibit local governments from imposing mitigation requirements (including fees or tree planting) for the removal or harvesting of trees. Lastly, the bills prohibit a local government from prohibiting the burial of trees or vegetative debris on properties larger than 2.5 acres.

Vacation Rentals (Preemption)

HB 773 (La Rosa) prohibits cities from establishing ordinances specific to short-term vacation rentals. Instead, the law would require that all residential properties be treated the same, regardless of whether the property is being used as a rental or not. The bill would allow cities with vacation rental ordinances in place prior to June 1, 2011, to amend their ordinance, as long as the amendment makes the regulation of vacation rentals less restrictive.

UNFUNDED MANDATES

Permit Fees (Unfunded Mandate)

SB 1144 (Perry) and HB 0725 (Williamson) require local governments to publish permit and inspection fee schedules and reports on the their website. Specifically, the bills require the building permit and inspection report to include direct and indirect costs incurred by local government to implement the Florida Building Code.

Workers’ Compensation Benefits for First Responders/Mental or Nervous Injury (Unfunded Mandate)

HB 227 (Willhite) and CS/SB 376 (Book) provide that a mental or nervous injury suffered by a law enforcement officer, firefighter, emergency medical technician or paramedic is compensable under the workers’ compensation law if the mental or nervous injury was shown to meet the criteria for post-traumatic stress disorder. CS/SB 376 was amended in the Senate Banking and Insurance Committee to lower the evidentiary standard for compensability from clear and convincing evidence to a preponderance of evidence. The clear and convincing evidence standard requires that the evidence be substantially more likely to be true whereas the preponderance of evidence standard requires that the evidence be mostly true (above 50 percent). This has the potential to impact cities because it is a less stringent standard of proof.  Additionally, the amendment eliminates the requirement that an employee must initiate mental health treatment within 15 days after the incident. Finally, the amendment to CS/SB 376 expands the instances that qualify for compensability by allowing a first responder to arrive at the scene of a murder, suicide, fatal injury or child death, rather than witnessing a qualifying act.

Workers’ Compensation Benefits for First Responders (Unfunded Mandate)

SB 126 (Torres) and HB 629 (Asencio) provide that a mental or nervous injury suffered by a law enforcement officer, firefighter, emergency medical technician or paramedic is compensable under the workers’ compensation law if the mental or nervous injury was demonstrated by a preponderance of the evidence.

Private Property Comprehensive Plan Element (Unfunded Mandate)

HB 207 (McClain) and SB 362 (Perry) require local governments to adopt a new mandatory element in their comprehensive plans that addresses the protection of private property.

Companion Animal Public-Private Partnership Act (Unfunded Mandate)

HB 249 (Watson, B.) prohibits an animal shelter from euthanizing an animal, with certain exceptions, if a rescue organization has indicated it will take custody of the animal. The bill allows for a reasonable fee to be assessed to the rescue organization.

Public Meetings (Unfunded Mandate)

HB 589 (Newton) and SB 1092 (Rader) require meetings of any entities created by general or special law to be subject to the public meetings law. In addition, the bills require agendas and other meeting materials of these entities to be made available at least three days prior the meeting. The bills require the presiding officer to allot time for public comment as either the first or last item listed on the agenda. Each member of the public must be given at least three minutes to speak regarding any agenda item relating to the appointment of a public officer; zoning or land use regulations; the imposition of taxes, fees, and fines or other interests affecting the rights of residents and businesses within the jurisdiction of the entity. The bills also require the board or commission of the entity to respond, either publicly at the meeting or through written correspondence, to any question made by a member of the public. If the response is in writing, it must be provided within 10 days after the meeting and be incorporated into the minutes of the meeting.

To learn more about the positions of your Florida Senator and State Representative, see the contact information provided below:

Senator Aaron Bean  https://www.flsenate.gov/Senators/s4

Representative Cord Byrd https://www.myfloridahouse.gov/Sections/Representatives/details.aspx?MemberId=4632&LegislativeTermId=87

 

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