Recap of Week 5 & Preview of Week 6 of Session
With four weeks remaining in the Florida legislative session, bills are making steady progress that would open the insurance market to more surplus lines companies, help check the rapidly rising policy count at Citizens Property Insurance, and provide rules of the road on handling construction defect claims. There is now a lot of action on bills to mandate inspections of high-rise condominium buildings in the wake of the Surfside tragedy and ensure proper reserve accounts exist for needed maintenance and repairs. We even have bills that address flying cars (read on)!
The Legislature has sent the Governor bills to sign that would extend COVID liability protections from the current expiration of March 29, 2022, to June 1, 2023, and create a $500 million “Emergency Preparedness and Response Fund” that the governor could directly access during emergencies.
At this point in the session, more time and energy will now be focused on the next state budget for the July 1 fiscal year. The House meets tomorrow (Feb.15) on its proposed $105.3 billion budget proposal and the Senate on Thursday (Feb. 17) on its proposed $108.6 billion budget plan. Once approved, members from both houses will meet in a budget conference committee to reconcile funding issues so they can agree on a final budget and end the session on time on Friday, March 11.
A special note: we have separated this Bill Watch and those for the remainder of our weekly session newsletters into two categories – “Bills in Play” and “Bills Not in Play”. For those of you who were following closely and have a favorite that has been placed in the latter, don’t forget: It has been my experience that most good ideas take 3 years to pass!”
Here is a master list of the legislative bills we’re following so far in this 60-day session. An observation: The Senate is moving insurance bills through the process and these bills are “stacking up” as we say awaiting either the entire House to hear them and/or the House companion to these Senate bills are awaiting hearings in the Commerce Committee. You can click the bill link in the list below to go directly to the bill and its details farther below. “New” and “Updated” bills are so noted. Updates within each bill are noted in blue font:
Insurance Policies (aka Insurance Omnibus Bill)
Insolvent Insurers Updated
Property Insurer Reimbursements Updated
Domestic Surplus Lines Insurers Updated
Citizens Property Insurance Updated
Property Insurance Updated
Department of Financial Services (DFS) Updated
Fraud Prevention Updated
Motor Vehicle Glass
Hurricane Impact Programs
Sales Tax Refunds for Building Mitigation Retrofit Improvements
Mandatory Building Inspections Updated
Community Association Building Safety Updated
Community Association Database
Powers of the Florida Building Commission
Construction Defect Claims Updated
Building Inspection Services Updated
Motor Vehicle Insurance (PIP) Updated
Consumer Data Privacy Updated
Judicial Notice Updated
COVID-19-related Claims Updated
Communicable and Infectious Diseases
Insurance Coverage for At-home COVID-19 Test Kits
Veterinary Telehealth Updated
Nutrient Application Rates Updated
Statewide Flooding and Sea Level Rise Resilience Updated
Advanced Air Mobility NEW
Insurance Policies (Insurance Omnibus bill) – SB 468 and HB 503 by Senator Keith Perry (R-Gainesville) and Rep. Tommy Gregory (R-Sarasota) would, among the many provisions, redefine the term “covered policy” under the Florida Hurricane Catastrophe Fund in relation to certain collateral protection insurance policies; authorize insurers to file certain rating plans based on certain windstorm mitigation construction standards, if certain requirements are met; and relax rules on Citizens Property Insurance offering wind-only policies for condominium buildings, among other provisions. The Senate Judiciary Committee and the House Insurance & Banking Subcommittee in mid-January both passed revised bills that eliminated the Legal Service of Process (LSOP) changes that had been debated in December committee meetings. Those changes would have altered “when the lawsuit clock starts” to when the company receives the notice from Department of Financial Services rather than when DFS receives it. These changes are now part of the Department of Financial Services (DFS) bills, HB 959 and SB 1874, further down in this Bill Watch.
The revised bills also made tweaks to the collateral protection provisions; changed the workers’ comp provisions to require on-site audits only for policies with premiums greater than $10,000; allow a modeling indication that is the weighted or straight average of two or more hurricane loss projection models; clarify in Assignment of Benefits (AOB) agreements that the contractor provide the 10-day pre-lawsuit notice to the policyholder, insurance company and assignor; and loosen licensing requirements on agents selling motor vehicle service agreements and home warranty contracts.
In late January, Senator Jeff Brandes proposed and then withdrew an amendment that would have changed the funding of the Florida Hurricane Catastrophe Fund, to help put more money into consumers’ pocketbooks by reducing rates by nearly $1 billion this year (you can read more here). He said he may bring it up again this session.
SB 468 on February 3 unanimously passed the full Senate with a floor amendment now included and is sitting in House messages meaning the full House must schedule it for a floor vote and the companion HB 503 must get through its third and last committee of reference. The amendment added on the Senate floor:
- Re-inserted a previously deleted portion of the bill to allow an insurer to use an “independent, non-for-profit scientific research organization” to develop windstorm mitigation construction standards for personal lines residential rating plans;
- Modified the term “Assignment Agreement” under Chapter 627.7152 to not include any instrument by which a licensed public adjuster as defined in s. 626.854(1) receives any compensation, payment, commission, fee, or other thing of value for providing services under such licensure;
- Clarified that assignees of such agreements send their 10-day presuit notice to the insurance company to the name and mailing address or the email address designated by the company in the policy form;.
- Reduced from 15 days to 10 days the timeframe insurance companies must give written notice to a policyholder with auto-payment of any premium increase of more than $10; and
- Eliminated a provision requiring an insurance company sending policies electronically to remind the policyholder of their right to receive a paper copy of the policy. (Return to Top of Page)
Insolvent Insurers – HB 1023 and SB 1430 by Rep. Tom Fabricio (R-Miramar) and Senator Danny Burgess (R-Zephyrhills) amend several provisions of the Florida Insurance Code relating to the regulation and workings of our various backstop entities tasked with managing insolvent insurance companies. Specifically these bills would:
- For the Florida Insurance Guaranty Association (FIGA): Authorize insurers to make advance assessment payments made to FIGA in quarterly installments; authorize an insurer to forego recouping advances of assessments to FIGA; and require insurers making assessment payments to FIGA to file reconciliation reports on a form and schedule adopted by FIGA regardless of assessment payment method.
- For the Florida Workers’ Compensation Insurance Guaranty Association (FWCIGA): Provide that past loss experience and prospective loss experience for insolvent insurers must be used in the determination and fixing of workers’ compensation rates, and that data previously reported by insolvent insurers may be used to assess the impact on rates; authorize the Workers’ Compensation Insurance Guaranty Association (WCIGA) to allow an insurer to make advance assessment payments in a single payment or on a quarterly basis based on cash-flow needs; reduce the frequency of annual reconciliation reports subsequently filed with the WCIGA after the assessment year from a period of 3 years to a period of 2 years; clarify that an assessment paid before surcharges are collected is an advance; and make additional technical and conforming changes.
The Senate bill passed now includes an amendment by Senator Jeff Brandes (R-Pinellas) that would allow officers and directors of insolvent carriers to serve as officers or directors of other carriers in the future, unless regulators found their actions contributed to or caused the insolvency. It is scheduled to have its second hearing on Wednesday (Feb. 16) before the Appropriations Subcommittee on Agriculture, Environment, and General Government at 1pm. The House bill last Tuesday passed unanimously in the State Administration & Technology Appropriations Subcommittee and now goes to the Commerce Committee (as we discussed above), its last of three committee stops. (Return to Top of Page)
Property Insurer Reimbursements – HB 695 and SB 1058 by Rep. Cyndi Stevenson (R-St. Augustine) and Senator Travis Hutson (R-Palm Coast) revise requirements for coverage under the Florida Hurricane Catastrophe Fund of certain policies assumed from “unsound insurers” by authorized insurers or Citizens Property Insurance Corporation. The bills would allow cat fund contract fund transfers when a company is in an “unsound condition” not just declared insolvent, making the funds available sooner. The House bill unanimously passed the Commerce Committee last week and now goes to the full House for consideration. The Senate bill unanimously passed the Rules Committee last week and is scheduled to be heard on the Senate floor this week. In mid-January Senator Brandes offered an amendment that he later withdrew that would require any policy from an unsound insurer rolling into Citizens to keep the same premium pricing through two policy renewal cycles at Citizens. A similar provision has since been added to the Citizens Property Insurance bills, SB 186 and HB 1307, further down in this Bill Watch. (Return to Top of Page)
Domestic Surplus Lines Insurers – HB 951 and SB 1402 by Rep. Tommy Gregory (R-Sarasota) and Senator Danny Burgess (R-Zephyrhills) changes the law governing surplus lines carriers, providing more options to consumers. It provides that the term “eligible surplus lines insurer” now includes domestic surplus lines insurers; authorizes specified non-admitted insurers to transact insurance as domestic surplus lines insurers; authorizes domestic surplus lines insurers to write surplus lines insurance in any jurisdiction; requires such insurers to be considered unauthorized insurers & non-admitted insurers for specified purposes; limits circumstances under which such insurers may write surplus lines insurance; and provides such policies are subject to specified taxes but are not subject to certain other taxes. The Senate bill last Wednesday passed unanimously in the Appropriations Committee. There was some testimony against the bill because of the lack of rates and forms regulation for surplus lines insurers, the lack of guaranteed claim payout protection under the Florida Insurance Guaranty Association (FIGA), and jurisdictional issues among various states’ laws governing surplus lines. The bill now goes to the Senate floor for consideration. There were similar concerns expressed last week about the House bill in the Ways & Means Committee but it passed unanimously there and now goes to the Commerce Committee, its last of three stops before going to the full House. Both bills were scheduled to be examined and discussed by the Office of Economic & Demographic Research, the legislature’s research arm, this past Friday for their estimated impact on state revenues and expenditures. (Return to Top of Page)
Citizens Property Insurance – SB 186 and HB 1307 by Senator Jeff Brandes (R-Pinellas) and Reps. Tommy Gregory (R-Sarasota) and Mike Giallombardo (R-Cape Coral) would allow surplus lines companies to do takeouts of Citizens policies, just as admitted carriers can do. The bills also have other provisions to attempt to stem Citizens explosive growth, which ended 2021 with a policy count of 759,305, a 40% increase from 2020, with continued growth of almost 5,000 policies weekly. They would make a current Citizens policyholder ineligible for renewal unless a private insurance company take-out premium is more than 20% higher than the Citizens renewal premium; and require Citizens to keep any premium in place from an unsound insurance company policy that Citizens assumes unless Citizens’ premium is higher. The Senate bill was changed in late January and now:
- Requires Citizens to merge its three accounts (personal, commercial, and coastal) to prevent a scenario of Citizens having to access surcharges from one account while maintaining robust reserves in another,
- Increases the Citizens policyholder surcharge from 15% to 20% when claims exceed reserves, should Citizens grow above 1 million policies and to 25% when policy growth hits 1.5 million;
- Defines “Primary Residence” for purposes of applying the glide path (a second home would not be eligible for the capped rate) and creates a $5 surcharge on primary residence policies to cover administration and auditing costs;
- Applies the 20% threshold take-out premium eligibility to the current renewal rate within Citizens;
- Sets parameters for agent commissions;
- Allows Surplus Lines to make takeout offers when Citizens policy count grows above 700,000:
- Participating insurers must get OIR approval and meet certain disclosure and solvency requirements; and
- Citizens policies valued above $700,000 can be made ineligible for renewal with a surplus lines offer no greater than the rate currently offered by Citizens.
The Senate bill is scheduled this Wednesday (Feb. 16) at 1pm before the Agriculture, Environment, and General Government Appropriations Subcommittee, its second of three committee stops.
The House bill now differs from the Senate bill in that it phases in the take-out offer 20% non-eligibility standard over 4 years by 5% a year. It awaits its last hearing before the Commerce Committee. (Return to Top of Page)
Property Insurance – SB 1728 by Senator Jim Boyd (R-Bradenton) has identical changes to the Citizens Property Insurance Corporation that SB 186 and HB 1307 above have but also attempts to clarify advertising and solicitation restrictions in last session’s SB 76 reform law that a federal judge enjoined from enforcement last summer on free-speech grounds. This bill would also allow insurance companies to offer homeowners (HO-3) policies covering actual cash value of roofs older than 10 years old, rather than currently required full replacement value, to reduce a cost-driver contributing to double-digit rate increases. That provision failed to be included in last year’s SB 76. There is no identical House companion to this bill, but it may be that parts of this bill end up being included in HB 1307 above.
The bill, which Senator Boyd described in mid-January as “another pass at property insurance reform, but nothing too aggressive,” finally had its first hearing on February 2 before the Senate Banking and Insurance Committee that Senator Boyd chairs. The bill clarifies the roofing solicitation reform from the last session by allowing advertising and solicitation but requires the contractor provide a statement to the homeowner, in large-print typeface, making it clear that:
- The consumer is responsible for payment of any insurance deductible;
- It is insurance fraud punishable as a felony of the third degree for a contractor to pay, waive, or rebate all or part of an insurance deductible applicable to payment to the contractor for repairs to property covered by a property insurance policy; and
- It is insurance fraud punishable as a felony of the third degree to intentionally file an insurance claim containing any false, incomplete, or misleading information.
Senator Kelli Stargel (R-Lakeland) described how she was almost a victim of a roofing scam and said, “It’s not even a matter of the cost of insurance. You’re not going to be able to get insurance. That’s an even bigger problem.” Senator Linda Stewart (D-Orlando) said she, too, had a roof scam “and it was a lot of money.”
The other big component of the bill would allow insurance companies to once again offer homeowners policies that cover only the depreciated or actual cash value of a roof, as opposed to full replacement, currently required under law for HO-3 policies. Companies who do so would use a roof-surface type replacement schedule but would have to continue to replace roofs under 10 years old, damaged by named hurricanes, or if the structure is declared a total loss. Stated-value policies would also be allowed. Some on the committee wondered whether limiting roof coverage to actual cash value would disproportionately hurt low-income and elderly homeowners.
“What I’m fascinated by and continue to be fascinated by, is the opponents of the bill have not offered one single amendment that would reduce prices for homeowners in Florida, not one, not one in years, years, to reduce prices for Floridians,” said Senator Jeff Brandes (R-Pinellas) at that meeting. “They come talk a big game up here. But they do nothing as far as putting forth real ideas to reduce premiums for homeowners.” In a published report, Brandes also said the state’s CFO and many House members aren’t paying attention to the property insurance crisis. “I think there are a handful of legislators that are on deck. I think many other people are below deck sleeping.”
Amendments added the day before the hearing added “commercial residential policies” to the requirement that new applicants are eligible for a Citizens policy only if an offer from a private insurance company is more than 20% higher than the Citizens premium for comparable coverage; likewise for existing Citizens commercial residential policyholders at renewal; and an exclusion from capped rates on second homes, just like SB 186 and HB 1307 above. The bill now requires that Citizens’ board members and officers have significant experience in the insurance business and a chair with “demonstrated expertise in insurance.”
Senator Doug Broxson (R-Pensacola) predicted at the meeting “we’re going to have an outcry from our citizens…unless we solve this issue.” The Banking and Insurance Committee approved the bill by a 9-2 vote with Senator Brandes supporting the bill but insisting more changes are needed. He brought up again his idea introduced at the January 27 Appropriations Committee meeting to change the Florida Hurricane Catastrophe Fund by lowering the retention level for insurance companies (see our past Bill Watch). “That would expose the state to a little bit more risk, but would save homeowners potentially up to a billion dollars this year in their pocket,” he pleaded.
SB 1728 will be heard on Wednesday (Feb. 16) at 1pm before the Senate Appropriations Subcommittee on Agriculture, Environment, and General Government, its second of three committees of reference. (Return to Top of Page)
Department of Financial Services (DFS) – HB 959 and SB 1874 by Rep. Chip LaMarca (R-Broward) and Senator Jim Boyd (R-Bradenton) pertain to various administrative procedures, but tighten the rules on public adjusters; also included is that proposed change in the Department’s Legal Service of Process (LSOP) that alters when the “lawsuit notice of commencement clock starts.” According to the bill, “service of process is considered valid and binding at the time the process documents are received by, rather than sent to, the insurance company…and “when the process documents are made available on the DFS electronic system.” There are measures in these bills impacting insurance agents and workers’ compensation insurance, too. The bill prohibits compensation to a public adjuster based on amounts attributable to additional living expenses unless the public adjuster and the policyholder agree to such compensation in a separate agreement that includes a specified disclosure. The bills also:
- Create a new provision which states that compensation paid to a public adjuster may not be increased based on a claim being resolved by litigation.
- Require that adjusting firms seeking licensure include the name and license number of the designated primary adjuster who is responsible for adjusters at each business location, and requires fingerprints for background checks of the owner(s) as well as corporate officers and directors;
- Require that an applicant for licensure as a public adjuster must have been licensed and appointed in Florida as a non-resident public adjuster, or as an all-lines adjuster, on a continual basis, during the six months prior to application;
- Amend the definition of “public adjuster apprentice” to state that such apprentice must be employed by a public adjusting firm, rather than employed by a public adjuster;
- Require that a $50,000 bond posted by each public adjuster apprentice remain in effect for one year after termination of the public adjuster apprentice license, and requires that the public adjusting firm provide DFS with notice of the primary adjuster who responsible for the supervision of all adjusters at the firm’s location;
- Require that the $50,000 bond posted by each nonresident public adjuster must remain in effect for one year following the expiration or termination of the public adjuster license, and also makes changes to comply with federal law related to the use of fingerprints in national background checks, discussed above.
The bills also add an exemption to the examination requirement for the all-lines adjuster license; allow unaffiliated insurance agents to adjust claims without surrendering their appointments; clarify existing laws for title agents and agencies; and modify existing laws for public adjuster compensation, qualifications and bonding requirements. In workers’ compensation insurance, the bills would revise statewide schedules of maximum reimbursement allowances (aka the Workers’ Comp Reimbursement Manual) for medically necessary treatment to exempt from the requirement that the legislature ratify rules with an adverse economic impact in excess of $1 million, along with other provisions.
The House bill passed unanimously last Wednesday in the Appropriations Committee and awaits its final committee stop in the Commerce Committee. The Senate bill had a strike-all amendment clarifying existing bill language that was offered and amended by an amendment that limited public adjuster fees to recovery awards only and not attorney fee awards. The bill was unanimously approved as amended by the Banking and Insurance Committee on January 25. It awaits a hearing before the Appropriations Subcommittee on Agriculture, Environment, and General Government, its second of three committee stops. (Return to Top of Page)
Fraud Prevention – HB 749 and SB 1292 by Rep. Chuck Clemons (R-Newberry) and Senator Joe Gruters (R-Sarasota) increase fines on public adjusters & public adjuster apprentices for certain violations under specified circumstances, including work performed during a state of emergency. The measures also requires sellers to allow consumers to cancel in specified manners & by specified means service contracts with automatic renewal provisions. They also remove provisions relating to circumstances under which investigations are considered active; revise requirements for advertisements issued or caused to be issued by service agreement companies or salespersons; revise felony violations for which prosecutions must be commenced within specified timeframe; provide that certain insurers are entitled to specified expenses at trials & appellate courts; and create a $2,000 daily fine for insurance companies that fail to comply with a Division of Investigative and Forensic Services or State Fire Marshall investigation. Both the House and Senate bills passed their respective first committees in mid-January, with the following provisions added to both bills:
- Expanding the existing $10,000 fine for contractors or unlicensed persons acting on their behalf who solicit or incentivize a residential property owner to file a roof damage insurance claim or receive a paid referral from insurance proceeds to $20,000 if the violations occur during a declared state of emergency.
- Entitling insurance companies that are victims of false and fraudulent insurance claims to recover investigation and litigation expenses, including attorney fees, when they have reported the possible fraud to the Department of Financial Services Division of Investigative and Forensic Services and the accused has been found guilty. This is in addition to having a cause of action in other cases to the recovery of compensatory damages, investigation and litigation expenses, including attorney fees that is already part of these bills.
- Requiring service agreement companies and salespersons to disclose their full legal name during phone solicitations and radio/television and written advertisements.
- A new section that requires development of a digital insurance verification system for licensed Florida motor vehicle drivers that can interface seamlessly to the Department of Highway Safety and Motor Vehicles’ digital driver’s license project already in process.
The House bill will be heard tomorrow (Feb. 15) at 8am before the State Administration & Technology Appropriations Subcommittee, its second of three stops. The Senate bill awaits a hearing before the Appropriations Committee, its final stop before the Senate floor. (Return to Top of Page)
Hurricane Impact Programs – SB 578 and HB 837 by Senator Ed Hooper (R-Palm Harbor) and Rep. Matt Willhite (D-Wellington) would extend the state Division of Emergency Management’s hurricane loss mitigation program for 10 years. The Senate bill directs an appropriation of $10 million a year from the Florida Hurricane Catastrophe Fund that would fund 4 programs: tie-downs or mobile homes; wind resistance mitigation for homes; new construction and retrofits of public shelters; and continued hurricane research at Florida International University. Under an amendment offered by Senator Jeff Brandes (R-Pinellas) and approved by the Senate Banking and Insurance Committee on January 12, an additional $2 million each year from the Cat Fund would fund research by the University of South Florida School of Risk Management. The research would examine Florida’s property insurance market, analyze trends, and recommend polices for reducing property insurance rates, Citizens Property Insurance policy counts, and frequency of insurance litigation. The school would also be tasked with determining to what extent hurricane losses and rebuilding costs influence these trends. Unfortunately, the Senate bill sponsor, at its stop in the Community Affairs Committee, moved to delete the USF research provision. It awaits a hearing before the Appropriations Committee, its last stop before the full Senate. The House bill now mirrors the Senate version and awaits a hearing in the Infrastructure & Tourism Appropriations Subcommittee, its second of three committee stops . (Return to Top of Page)
Sales Tax Refunds for Building Mitigation Retrofit Improvements – HB 863 and SB 1250 by Rep. Nick DiCeglie (R-Pinellas) and Senator Joe Gruters (R-Sarasota) would create a sales & use tax refund for homeowners who purchase building materials used for mitigation retrofit improvements, along with regulation of mitigation inspectors. This would be a win-win for Florida homeowners, to encourage them to fortify their homes and help save on future insurance premiums. The House bill still awaits its first hearing in the Regulatory Reform Subcommittee; the Senate bill its first hearing in the Community Affairs Committee. (Return to Top of Page)
Mandatory Building Inspections – This bill is among several filed in the aftermath of the Champlain Towers South condominium collapse that killed 98 people in June of 2021. Although near the last of the group to be filed, legislative intelligence is such that all eyes in the condo communities and other stakeholders are on this bill as it appears it will be the “vehicle” for condo law changes in the 2022 session. SB 1702 by Senator Jennifer Bradley (R-Fleming Island) who Chairs the Community Affairs Committee would require multifamily residential building inspections statewide “to ensure that such buildings are safe for continued use.”
It would impose “milestone inspections” for buildings taller than three stories. Those within three miles of a coast would be structurally inspected on their 20th anniversary and every seven years afterward; the rest on their 30th anniversary and every 10 years afterward. All those buildings opened before July 1, 1992 would need to have initial inspections performed by Dec. 31, 2024. Inspections would have to be performed by architects or engineers that “have a minimum of 5 years’ experience designing primary structural components of buildings and a minimum 5 years’ experience inspecting structural components of existing buildings of a similar size, scope and type of construction.”
For condominium buildings or cooperatives, copies of inspection reports would be sent under seal to authorities and distributed to unit owners. The bill also requires the Florida Building Commission to further develop structural and life-safety standards for all building types and structures by the end of this year. The bill mirrors some of the suggestions in a joint report by The Florida Engineering Society and the American Council of Engineering Companies of Florida, one of two reports out so far in the aftermath of the tragedy. The bill allows local communities to establish even tighter standards.
At the bill’s first hearing in late January before her Senate Community Affairs Committee, Senator Bradley said Florida needs a minimum statewide standard so that another Champlain Towers collapse doesn’t happen again. ““We have half a million condo units in our state that are between 40 and 50 years old, more than 100,000 that are 50 years old or greater. And there is no requirement that they be inspected.”
SB 1702 awaits a hearing in the Senate Rules Committee, its final stop before going before the full Senate. (Return to Top of Page)
Community Association Building Safety – SPB 7042 by the Senate Regulated Industries Committee is substantially the same and includes the same milestone inspections as SB 1702 above, but adds reserving requirements so that high-rise condominium buildings can fund needed engineering studies, maintenance, and repair. The bill requires three-story or higher condo buildings conduct a reserve study every three years and that the condo board review its reserves annually for sufficiency, along with other very specific requirements. The bill includes an “alternative funding method” for a reserve account by means other than an assessment or special assessment of condo owners, including a line of credit and payments by developers offering units for sale. It also enhances the authority of the Department of Business and Professional Regulation’s Division of Florida Condominiums, Timeshares, and Mobile Homes. The bill also stresses mandatory building maintenance, requiring the association perform any required work identified by the developer until new maintenance protocols are obtained by a licensed professional engineer or architect. The bill amends Chapter 718 which is condo law and Chapter 719 which is HOA law.
At the bill’s first hearing on February 1, Senator Kathleen Passidomo (R-Naples) who is next in line to be Senate President, noted there are almost 1.6 million condos in Florida with nearly 106,000 that are at least 50 years old. “This problem is going to increase,” she warned the committee. There was limited public testimony and full Republican and Democrat support for the bill, which passed unanimously. It heads now to the Appropriations Committee, its only stop before the full Senate.
There is now a similar House bill that was introduced last Thursday from the House Pandemics and Public Emergencies Committee. HB 7069 differs from both Senate bills by requiring structures 3 miles from the coast receive a milestone inspection on their 25th anniversary (rather than their 20th anniversary as in the Senate versions in SB 7042 & SB 1702) and thereafter every 10 years (rather than seven years in the Senate versions). Both the House and Senate bills require those structures further than 3 miles from the coast to be inspected on their 30th anniversary and every 10 years thereafter.
Committee Chairman Daniel Perez (R-Miami) who is leading the committee bill, said the changes it requires are “long overdue” in “making sure that what happened on that day (in Surfside) never happens again,” he said. The bill requires that second inspections be conducted in the event that substantial damage is found and that if necessary repairs aren’t made, the “local building official must determine that the building is unsafe for human occupancy until such repairs are scheduled or begin,” according to the bill. The bill also addresses reserve requirements by condo associations, prohibiting them from waiving reserves for items that require inspection.
There was much testimony during the committee meeting in favor of the bill; however, concerns were raised regarding reserve study issues and timing, board direction issues, the definitions of “substantial damage” and “structural safe” and mailing requirements. Additional work on the bill is expected. (Return to Top of Page)
Community Association Database – HB 329 and SB 642 by Rep. Nicholas Duran (D-Miami-Dade) and Senator Ana Maria Rodriguez (R-Miami-Dade) require the Department of Business and Professional Regulation (DBPR) to establish a searchable database of condominium and homeowners’ associations’ information. This would include contact information of board members, community managers, articles of incorporation and the like, but also a copy of the annual budget and schedule of expenses and assessments. It must specify whether the association has reserve accounts for capital expenditures and deferred maintenance, and if they are fully funded. A copy of the most recent reserve study, if one has been conducted, would also be included in the database. The Senate bill has not been heard and may not be, given creation of SB 7042 above in late January. The House bill still awaits its first hearing in the House Regulatory Reform Subcommittee. (Return to Top of Page)
Construction Defect Claims – HB 583 and SB 736 by Rep. Clay Yarborough (R-Jacksonville) and Senator Travis Hutson (R-Palm Coast) would require a claimant to provide written reasons for rejecting a settlement offer to remedy a defect; authorizes a supplemental offer; provides notice requirements for a supplemental offer; requires a court to stay action under certain circumstances; limits attorney fees under certain circumstances; requires certain claimants to complete repairs of construction defect within a specified time; provides requirements for payment of repairs; requires an expert to examine defect & prepare report; provides report requirements; provides for compensation of expert; provides liability; and requires certain notices of construction defects be sent to mortgagee or assignee. One provision in the bills’ earlier versions would reduce the current statute of repose for filing a lawsuit over latent defects from 10 years, to a tiered-system of one to five years, depending on the structure, in the Senate bill and to seven years in the House bill. Supporters say the measures would protect builders from frivolous lawsuits and help control rising liability insurance costs. Opponents say it would limit consumer protection over latent defects. The Florida Home Builders Association has produced this short video that bears a shocking resemblance to the same tort issues facing our property insurance market.
The Senate bill passed the Rules Committee on February 3 on an 11-4 vote with an amendment adding specific timeframes for construction of improvements, occupancy, claims and counter-claims, and inspection requirements. The statute of repose would be five years for single- and multi-family homes not over two stories and keep the current 10-year repose for all other buildings. Dissenting Senators made similar arguments as in past meetings that a five-year window was too little time for some defects, such as faulty foundations and faulty structural components in attics and load-bearing walls, to present themselves. An amendment was added last week before a Senate floor vote that would set a seven-year repose for all improvements but allow a 10-year repose when defects have been fraudulently concealed. The Senate adopted the amendment last Thursday and are expected to vote on the full measure one last time this Thursday (Feb. 17).
The House bill last Tuesday passed the Regulatory Reform Subcommittee on an 11-5 vote with a committee substitute amendment that keeps in place Chapter 558 governing the alternative dispute process. It now reduces the current 10-year repose to seven years and changes the triggering event timeframe. For latent defects, the bill now calls for the clock to start 45 days after a certificate of occupancy is issued or the building permit closes, in place of current law that begins when the defect was or should have been discovered under due diligence. For material defects/violations, the bill now allows a 15-year state of repose, beginning under the same 45-day timeframe as latent defects, where it can be proven by clear and convincing evidence that the engineer, architect, or contractor knew about the violation during construction. The amended bill keeps the current four-year statute of limitations but moves to the 45-day timeframe above. Some at the committee meeting expressed their desire to return to previous version of the bill, which completely repealed Chapter 558. Stay tuned! The bill now awaits its final committee stop before the Judiciary Committee. (Return to Top of Page)
Building Inspection Services – HB 423 and SB 644 by Rep. Chip LaMarca (R-Lighthouse Point) and Senator Jason Brodeur (R-Lake Mary) revise eligibility requirements for a building code inspector or plans examiner; revise special conditions that may be imposed on provisional certificates; authorize partial completion of an internship program to be transferred between jurisdictions & private entities; limit the administrative fee that local jurisdiction can charge; provide certificate of occupancy or completion is automatically granted & issued; and require a local building official to provide written certificate of occupancy or completion within specified time.
The House awaits a hearing before the Commerce Committee, its last stop before the full House. The Senate bill is similar and includes a section on demolition. The bill now prohibits local laws or regulations from preventing a private property owner from obtaining a permit to demolish a single-family home located in a coastal high hazard area, moderate flood zone, or special flood hazard area if the lowest finished floor is at or below base flood elevation. The Senate bill passed by a 16-1 vote last Thursday in the Rules Committee and now goes to the full Senate. (Return to Top of Page)
Motor Vehicle Insurance (PIP) – This is a perennial effort to do away with Personal Injury Protection (PIP) coverage under Florida’s No-Fault insurance law and replace it with bodily injury (BI) liability coverage. The primary difference between PIP and mandatory BI is that under PIP, someone injured in an auto accident seek coverage first under their own PIP policy, whereas under mandatory BI, someone injured in an auto accident would seek recovery from a responsible third-party’s (other driver’s) BI coverage.
While the legislature did pass a bill in the 2021 session, the Governor vetoed it, out of concern it could raise auto insurance rates and lead to more uninsured drivers on the road. This session, SB 150 and HB 1525 by Senators Danny Burgess (R-Zephyrhills) and Darryl Rouson (D-St. Petersburg) and Rep. Erin Grall (R-Vero Beach) are making another attempt at repealing PIP. The Senate bill has third-party bad faith reform and the House bill doesn’t – something that’s been a deal-breaker in the past. Many in the insurance industry insist that PIP repeal without bad faith reform will not reduce costs to motorists.
The Senate bill had its first hearing on Feb 2 before the Senate Banking & Insurance Committee and passed on a 10-1 vote, with Senator Jeff Brandes (R-Pinellas), as he was at last year’s Committee meeting, the sole vote against the measure.
“This is essentially, in my opinion, legislative malpractice that we are going to talk about a piece of legislation that affects the lives of millions and millions of Floridians and we have not, over the summer, got an actual study that says, based on the actuaries and based on the counsel that we’ve received, this is going to reduce rates by x,” said Brandes.
The bill’s sponsor, Senator Burgess admitted a new study has not been done and pointed to the most recent study done in June 2021 by the Office of Insurance Regulation (OIR) as “fundamentally flawed.” It showed that repealing PIP would increase auto rates by an average of $200 annually. “That report assumed that pretty much everybody in the state would have chosen to have $10,000 in medical payments coverage. Of course that reflected an increase” in premiums, Burgess said. He said this year’s bill allows drivers to opt-in – not opt-out – of the $10,000 medical payment coverage benefits, known as MedPay. With that, he said, many Floridians would not choose the more expensive medical coverage, so most rates would not increase, but could actually drop, Burgess said. He pointed to OIR’s September 2016 Pinnacle Actuarial Resources report that projected varying savings for most Florida drivers under different PIP repeal scenarios and said he believes rates will go down.
The House bill had its first hearing last Monday (Feb. 7) before the Civil Justice & Property Rights Subcommittee and passed on a 15-3 vote after much debate. Its sponsor, Rep Grall, fired back at Senator Brandes’ use of the term “legislative malpractice,” saying it “was agency malpractice (for OIR) to commission a report on draft legislation, to accept that report even though the report did not address the components of the bill that was passed, to hold that report until after we left for Session, and to present it without the ability to respond to it,” Grall said. She said the June OIR report, done by Pinnacle, misstated facts such as the percentage of uninsured drivers, calling it “equivalent to actuarial malpractice.” She said that two-thirds of Florida’s insured drivers on the road today have coverage that exceeds her bill’s requirement in addition to carrying PIP. Doing away with PIP would save those drivers money and would only raise costs on what she said were the 6.6% of drivers whose current basic coverage is less than what her bill requires. Many in the industry are un-swayed and remain opposed – arguing that the House bill in its current form simply shifts insurance costs, rather than comprehensively lowering them.
The House bill has one more stop before the Judiciary Committee, which Rep. Grall chairs, before going to the full House. The Senate bill’s next stop is the Senate Judiciary Committee, the second of three committee stops before going to the full Senate.
The Governor reportedly met with House Speaker Sprowls and Senate President Simpson and asked them not to send a PIP Repeal bill to him this session. Again, he vetoed last year’s bill, which differs little from this year’s bill. (Return to Top of Page)
Consumer Data Privacy – SB 1864 and HB 9 by Senator Jennifer Bradley (R-Fleming Island) and Rep. Fiona McFarland (R-Sarasota) would create the “Florida Privacy Protection Act”. It would require controllers that collect consumer personal information to provide certain information to the consumer and allow them to opt out of the sale and processing of their information by controllers. It also prohibits controllers from selling the personal information of consumers younger than 16 without their or (under 13) a parent’s consent. The House bill contains a private cause of action provision, something business interests are objecting to and that killed similar bills last session.
The House bill had its first hearing last Thursday before the Commerce Committee, passing unanimously. Industry groups opposed to the bill sent this letter to legislators beforehand warning that the costs of compliance would be excessive, especially given the pandemic and its related problems on business operations. “Adopting this costly privacy legislation on the heels of these financially crippling factors in Florida is not the answer,” according to the letter. The groups say such a law is better applied at the federal level “to avoid a compliance patchwork of 50 different state laws that will impact job creators in multiple states.”
That opposition was amplified by some lobbyists who testified during the committee meeting. They didn’t receive a sympathetic ear by the bill’s sponsor, Rep. McFarland. “You have the privilege of my personal information, and I hate to tell you, but I value my privacy and I value the privacy of Floridians, so in this case, I’m okay with businesses to have to incur a compliance cost,” McFarland said.
“I heard a lot of specious arguments against this bill today, and shame on you, shame on you, to come up in front of the dais and try to feed us some of those arguments,” added Rep. Chuck Clemons (R-Gainesville).
Opponents also expressed concern that the bill could create “gotcha” lawsuits filed on behalf of consumers who claim violations and receive up to $750 in damages under its provisions. “The real bad actor is going to be the attorney who’s going to get their fees paid because this is a one-way attorney fees provision only for the consumer,” said William Large, of the Florida Justice Reform Institute.
The bill now goes to the Judiciary Committee, its only remaining stop before heading to the full House. The Senate bill, which allows only the Florida Attorney General to sue companies for alleged violations, is still awaiting its first hearing before the Commerce and Tourism Committee. (Return to Top of Page)
Judicial Notice – SB 634 and HB 677 by Senator Jennifer Bradley (R-Fleming Island) and Rep. Will Robinson (R-Bradenton) would allow courts to accept images and other information taken from web mapping services, global satellite imaging sites, or Internet mapping tools (such as Google Maps) as evidence, so long as a date stamp is visible. The measures also provide for the authorizing parties to object to the admissibility of such information. The bills now include a provision addressing constitutional concerns related to criminal trials and specific elements of crimes that could not be proven without live testimony authenticating specific issues for criminal conviction. The Senate unanimously passed SB 634 last Thursday and sent it to the Florida House for consideration. The House bill last Tuesday unanimously passed the Judiciary Committee and now goes to the full House. (Return to Top of Page)
COVID-19-related Claims – This is one of several bills addressing the ongoing coronavirus pandemic. SB 610 by Senator Jeff Brandes (R-Pinellas) (there is no corresponding House Bill to date) would extend current COVID-19 liability protections for health care providers through December 2023. Another Senate bill, SB 7014 recognizes the same need and extends the protections against claims filed before June 1, 2023. The Senate passed SB 7014 in mid-January on a 22-13 vote. The House was poised to take up its identical bill HB 7021 last Wednesday, but agreed to consider the Senate bill instead, passing it on Thursday with an 87-31 vote. It now goes to the Governor. If signed into law, it would extend COVID liability protections from the current expiration of March 29, 2022, to June 1, 2023. (Return to Top of Page)
Telehealth – SB 312 and HB 17 by Senator Manny Diaz (R-Hialeah) and Rep. Tom Fabricio (R-Miramar) and Rep. Mike Giallombardo (R-Cape Coral) revise the definition of the term “telehealth” and narrow the prohibition on prescribing controlled substances through telehealth to include only specified controlled substances. The Senate bill was passed unanimously by the full Senate on January 27 and was scheduled to be considered by the full House last Wednesday along with the House bill, but was temporarily postponed. The only difference in the bills at this point is that the Senate version strikes a current prohibition on audio-only devices in telehealth visits, while the House version keeps the prohibition in place. (Return to Top of Page)
Veterinary Telehealth – SB 448 and HB 723 by Senator Jason Brodeur (R-Lake Mary) and Rep. James Buchanan (R-Sarasota) and Rep. Kristen Arrington (D-Osceola) would provide a framework for veterinary telemedicine. The measures generally authorize prescription of controlled substances under specified circumstances; revise grounds for disciplinary action against a veterinarian; and provide a supervising veterinarian assumes responsibility for person working under or at his or her supervision, among other provisions. The Senate bill was temporarily postponed twice from committee consideration in January and was not received last week by the Agriculture Committee where it was scheduled to be heard. The full House unanimously passed HB 723 last Thursday and sent it to the Rules Committee. It appears the veterinary association and its members are still struggling with the balance between live visits and telehealth visits. Behind the scenes there are those who believe that telehealth visits are not as financially viable as office visits because veterinarians routinely recommend prescriptions during office visits and the pet owner may not be as engaged to buy those prescriptions from the veterinarian in a telehealth visit, opting to buy pet drugs online, often less expensively. If our readers are like me, the loyalty to our pet’s veterinarian is unwavering and we spend more on our pets than our mortgage! (Return to Top of Page)
Nutrient Application Rates – SB 1000 and HB 1291 by Senator Ben Albritton (R-Bartow) and Rep. Lawrence McClure (R-Hillsborough) is meant to control nutrient run-off pollution from farms into streams and rivers. The bills authorize agricultural producers to use specified recommendations to tailor nutrient application rates; require such producers to keep certain records & to enroll in & implement certain best management practices; require certain state universities & Florida College System institutions to recommend nutrient application rates, ranges, rate tailoring authorizations; and provide a presumption of compliance with certain requirements for agricultural producers using rate tailoring. The Senate bill passed unanimously last Thursday in the Rules Committee and now goes to the full Senate for consideration. The House bill passed on a vote of 14-4 last Tuesday in the Environment, Agriculture & Flooding Subcommittee. It now goes to the Appropriations Committee, its second of three committee stops. (Return to Top of Page)
Statewide Flooding and Sea Level Rise Resilience – SB 1940 and HB 7053 by Senator Jason Brodeur (R-Lake Mary) and the House Environment, Agriculture & Flooding Subcommittee and Rep. Demi Busatta Cabrera (R-Miami) augment last year’s SB 1954 that created sea-level rise and flood resiliency efforts across the state up to $100 million a year. These bills do the following: Create the Statewide Office of Resilience and mandate a State Highway System resilience action plan. The bills also augment the Resilient Florida Grant Program and amend the statute outlining the University of South Florida’s Florida Flood Hub for Applied Research and Innovation. Lastly the bills seek to create a searchable database of flood elevation certificates. The Senate bill awaits a hearing before the Appropriations Subcommittee on Agriculture, Environment, and General Government, its second of three committee stops. The House bill unanimously passed the Appropriations Committee last Wednesday and has a final stop in the State Affairs Committee before it can go to the full House. (Return to Top of Page)
In 2021, the Legislature passed Senate Bill 1954, which established several new programs and initiatives aimed at addressing the impacts of flooding and sea level rise on the state. To assist local governments in resilience planning, the bill created the Resilient Florida Grant Program (grant program), which authorized the Department of Environmental Protection (DEP) to provide grants to a city or county to fund the costs of community resilience planning. SB 1954 also directed DEP to develop a comprehensive flood vulnerability and sea level rise data set and conduct a vulnerability assessment based on the data set. In addition, the bill directed DEP to develop an annual Statewide Flooding and Sea Level Rise Resilience Plan (plan), which consists of a list of ranked projects submitted by cities and counties that address risks posed by flooding and sea level rise. The plan must propose $100 million in funding and be submitted to the Legislature for approval each year. Lastly, SB 1954 established the Florida Flood Hub for Applied Research and Innovation (hub). (Return to Top of Page)
(NEW) Advanced Air Mobility – SB 728 and HB 1005 by Senator Gayle Harrell (R-Stuart) and the House Tourism, Infrastructure & Energy Subcommittee and Rep. Jason Fischer (R-Mandarin) are designed to pave the way to the future of “VTOL aircraft” – vertical takeoff and landing craft. Our regular readers may remember past stories on these type of aircraft coming to Florida with More Self-Driving & Flying Cars and Flying Cars Welcome at Miami Condo. The bills create the Advanced Air Mobility Study Task Force adjunct to the Department of Transportation and associated administrative details, including defining the term “VTOL aircraft” and creating a report for the Governor and Legislature on this exciting new mode of transportation that’s under continued development. The Senate bill will be heard tomorrow (Feb. 15) at 10am before the Rules Committee, its last stop before going before the full Senate. The House bill has a final stop before the Commerce Committee before going to the full House. (Return to Top of Page)
Motor Vehicle Glass – SB 484 by Senator Linda Stewart (D-Orlando) (there is no corresponding House Bill to date) targets Assignment of Benefits (AOB) abuse in the windshield repair industry, an effort that failed to gain traction last session. The bill would prohibit motor vehicle repair shops or their employees from offering anything of value to a customer in exchange for making an insurance claim for motor vehicle glass replacement or repair, including offers made through certain persons, etc. The bill still awaits its first hearing in the Banking and Insurance committee. (Return to Top of Page)
Powers of the Florida Building Commission – HB 771 and SB 1604 by Rep. Alex Andrade (R-Pensacola) and Senator Keith Perry (R-Gainesville) would require the Florida Building Commission to develop uniform standards for the maintenance and periodic inspection of existing building structures or facilities; provide requirements for such standards; and authorize the commission to adopt certain local rules that deviate from statewide standards. The House bill still awaits its first hearing in the Regulatory Reform Subcommittee. The Senate bill still awaits its first hearing in the Community Affairs Committee. (Return to Top of Page)
Condominium Associations – Another bill following the Surfside condo collapse, SB 880 by Senator Jason Pizzo (D-Miami) (there is no corresponding House Bill to date), would expand the jurisdiction of DBPR in investigating complaints about condo associations. It would also revise criminal penalties on acceptance of things or services of value or kickbacks, specify acts that comprise fraudulent voting activities relating to association elections, and require an association provide an itemized list and a sworn affidavit to persons requesting to inspect records. It still awaits its first hearing in the Regulated Industries Committee. (Return to Top of Page)
Communicable and Infectious Diseases – Citing this act as the “Sergeant Justin White Act,” SB 774 and HB 117 by Senator Joe Gruters (R-Sarasota) and Rep. Elizabeth Fetterhoff (R-Deland) and Rep. Anika Omphroy (D-Lauderdale Lakes), the bills provide a presumption to specified workers that an impairment of health caused by COVID-19 or an infectious disease happened in the line of duty. They require certain actions in order to be entitled to the presumption and require emergency rescue or public safety workers to file an incident or accident report under certain conditions. The Senate bill still awaits its first hearing before the Governmental Oversight and Accountability Committee. The House bill still awaits its first hearing before the Government Operations Subcommittee. (Return to Top of Page)
Insurance Coverage for At-home COVID-19 Test Kits – SB 328 and H 129 by Senator Ana Maria Rodriguez (R-Miami-Dade) and Rep. Ardian Zika (R-Pasco) define the term “at-home COVID-19 test kit”; require health insurers and health maintenance organizations to provide 100 percent coverage for at-home COVID-19 test kits; and provide for expiration of the insurance coverage, among other provisions. The Senate bill still awaits its first hearing in the Banking and Insurance committee. The House bill still awaits its first hearing in the Finance & Facilities Subcommittee. (Return to Top of Page)
LMA Newsletter of 2-14-22