CS/HB 63

1	A bill to be entitled
2	An act relating to public lodging and food service
3	establishments; providing a short title; amending s.
4	509.144, F.S.; revising definitions; providing additional
5	penalties for the offense of unlawfully distributing
6	handbills in a public lodging establishment; specifying
7	that certain items used in committing such offense are
8	subject to seizure and forfeiture under the Florida
9	Contraband Forfeiture Act; creating s. 901.1503, F.S.;
10	authorizing a law enforcement officer to give a notice to
11	appear to a person without a warrant when there is
12	probable cause to believe the person violated s. 509.144,
13	F.S., and the owner or manager of the public lodging
14	establishment and one additional affiant sign an affidavit
15	containing information supporting the determination of
16	probable cause; amending s. 932.701, F.S.; revising the
17	definition of the term "contraband article"; amending s.
18	509.013, F.S.; excluding nonprofit organizations operating
19	facilities providing certain housing from the definition
20	of the term "public lodging establishment"; amending s.
21	509.032, F.S.; conforming provisions to changes made by
22	the act; revising authority preempted to the state with
23	regard to regulation of public lodging establishments and
24	public food service establishments; prohibiting local
25	governments from regulating, restricting, or prohibiting
26	vacation rentals based solely on their classification or
27	use; providing an exception; amending ss. 509.221 and
28	509.241, F.S.; conforming provisions to changes made by
29	the act; amending s. 509.242, F.S.; providing that public
30	lodging establishments formerly classified as resort
31	condominiums and resort dwellings are classified as
32	vacation rentals; defining the term "vacation rental";
33	amending s. 509.251, F.S.; conforming provisions to
34	changes made by the act; amending s. 509.261, F.S.;
35	revising penalties for operating a public lodging
36	establishment or public food service establishment without
37	a valid license; amending s. 509.291, F.S.; revising
38	membership of the advisory council of the Division of
39	Hotels and Restaurants of the Department of Business and
40	Professional Regulation; requiring the Florida Vacation
41	Rental Managers Association to designate a member to serve
42	on the advisory council; amending ss. 381.008 and 386.203,
43	F.S.; conforming provisions to changes made by the act;
44	providing that specified portions of this act do not
45	affect or impede specified statutory provisions or any
46	protection or right guaranteed by the Second Amendment to
47	the United States Constitution; providing effective dates.
48
49	Be It Enacted by the Legislature of the State of Florida:
50
51	Section 1.  This act may be cited as the "Tourist Safety
52	Act of 2011."
53	Section 2.  Section 509.144, Florida Statutes, is amended
54	to read:
55	509.144  Prohibited handbill distribution in a public
56	lodging establishment; penalties.-
57	(1)  As used in this section, the term:
58	(a)  "Handbill" means a flier, leaflet, pamphlet, or other
59	written material that advertises, promotes, or informs persons
60	about a person an individual, business, company, or food service
61	establishment, but does shall not include employee
62	communications permissible under the National Labor Relations
63	Act, other communications protected by the First Amendment to
64	the United States Constitution, or communications that relate to
65	the public health, safety, or welfare that are distributed by a
66	federal, state, or local governmental entity or a public or
67	private utility.
68	(b)  "Without permission" means without the expressed
69	written or oral permission of the owner, manager, or agent of
70	the owner or manager of the public lodging establishment where a
71	sign is posted prohibiting advertising or solicitation in the
72	manner provided in subsection (5) (4).
73	(c)  "At or in a public lodging establishment" means any
74	property under the sole ownership or control of a public lodging
75	establishment.
76	(2)  Any person individual, agent, contractor, or volunteer
77	who is acting on behalf of a person an individual, business,
78	company, or food service establishment and who, without
79	permission, delivers, distributes, or places, or attempts to
80	deliver, distribute, or place, a handbill at or in a public
81	lodging establishment commits a misdemeanor of the first degree,
82	punishable as provided in s. 775.082 or s. 775.083.
83	(3)  Any person who, without permission, directs another
84	person to deliver, distribute, or place, or attempts to deliver,
85	distribute, or place, a handbill at or in a public lodging
86	establishment commits a misdemeanor of the first degree,
87	punishable as provided in s. 775.082 or s. 775.083. Any person
88	sentenced under this subsection shall be ordered to pay a
89	minimum fine of $500 in addition to any other penalty imposed by
90	the court.
91	(4)  In addition to any other penalty imposed by the court,
92	a person who violates subsection (2) or subsection (3):
93	(a)  A second time shall be ordered to pay a minimum fine
94	of $2,000.
95	(b)  A third or subsequent time shall be ordered to pay a
96	minimum fine of $3,000.
97	(5)(4)  For purposes of this section, a public lodging
98	establishment that intends to prohibit advertising or
99	solicitation, as described in this section, at or in such
100	establishment must comply with the following requirements when
101	posting a sign prohibiting such solicitation or advertising:
102	(a)  There must appear prominently on any sign referred to
103	in this subsection, in letters of not less than 2 inches in
104	height, the terms "no advertising" or "no solicitation" or terms
105	that indicate the same meaning.
106	(b)  The sign must be posted conspicuously.
107	(c)  If the main office of the public lodging establishment
108	is immediately accessible by entering the office through a door
109	from a street, parking lot, grounds, or other area outside such
110	establishment, the sign must be placed on a part of the main
111	office, such as a door or window, and the sign must face the
112	street, parking lot, grounds, or other area outside such
113	establishment.
114	(d)  If the main office of the public lodging establishment
115	is not immediately accessible by entering the office through a
116	door from a street, parking lot, grounds, or other area outside
117	such establishment, the sign must be placed in the immediate
118	vicinity of the main entrance to such establishment, and the
119	sign must face the street, parking lot, grounds, or other area
120	outside such establishment.
121	(6)  Any personal property, including, but not limited to,
122	any vehicle of any kind, item, object, tool, device, weapon,
123	machine, money, security, book, or record, that is used or
124	attempted to be used as an instrumentality in the commission of,
125	or in aiding and abetting in the commission of, a person's third
126	or subsequent violation of this section, whether or not
127	comprising an element of the offense, is subject to seizure and
128	forfeiture under the Florida Contraband Forfeiture Act.
129	Section 3.  Section 901.1503, Florida Statutes, is created
130	to read:
131	901.1503  When notice to appear by officer without warrant
132	is lawful.-A law enforcement officer may give a notice to appear
133	to a person without a warrant when the officer has determined
134	that he or she has probable cause to believe that a violation of
135	s. 509.144 has been committed and the owner or manager of the
136	public lodging establishment in which the violation occurred and
137	one additional affiant sign an affidavit containing information
138	that supports the officer's determination of probable cause.
139	Section 4.  Paragraph (a) of subsection (2) of section
140	932.701, Florida Statutes, is amended to read:
141	932.701  Short title; definitions.-
142	(2)  As used in the Florida Contraband Forfeiture Act:
143	(a)  "Contraband article" means:
144	1.  Any controlled substance as defined in chapter 893 or
145	any substance, device, paraphernalia, or currency or other means
146	of exchange that was used, was attempted to be used, or was
147	intended to be used in violation of any provision of chapter
148	893, if the totality of the facts presented by the state is
149	clearly sufficient to meet the state's burden of establishing
150	probable cause to believe that a nexus exists between the
151	article seized and the narcotics activity, whether or not the
152	use of the contraband article can be traced to a specific
153	narcotics transaction.
154	2.  Any gambling paraphernalia, lottery tickets, money,
155	currency, or other means of exchange which was used, was
156	attempted, or intended to be used in violation of the gambling
157	laws of the state.
158	3.  Any equipment, liquid or solid, which was being used,
159	is being used, was attempted to be used, or intended to be used
160	in violation of the beverage or tobacco laws of the state.
161	4.  Any motor fuel upon which the motor fuel tax has not
162	been paid as required by law.
163	5.  Any personal property, including, but not limited to,
164	any vessel, aircraft, item, object, tool, substance, device,
165	weapon, machine, vehicle of any kind, money, securities, books,
166	records, research, negotiable instruments, or currency, which
167	was used or was attempted to be used as an instrumentality in
168	the commission of, or in aiding or abetting in the commission
169	of, any felony, whether or not comprising an element of the
170	felony, or which is acquired by proceeds obtained as a result of
171	a violation of the Florida Contraband Forfeiture Act.
172	6.  Any real property, including any right, title,
173	leasehold, or other interest in the whole of any lot or tract of
174	land, which was used, is being used, or was attempted to be used
175	as an instrumentality in the commission of, or in aiding or
176	abetting in the commission of, any felony, or which is acquired
177	by proceeds obtained as a result of a violation of the Florida
178	Contraband Forfeiture Act.
179	7.  Any personal property, including, but not limited to,
180	equipment, money, securities, books, records, research,
181	negotiable instruments, currency, or any vessel, aircraft, item,
182	object, tool, substance, device, weapon, machine, or vehicle of
183	any kind in the possession of or belonging to any person who
184	takes aquaculture products in violation of s. 812.014(2)(c).
185	8.  Any motor vehicle offered for sale in violation of s.
186	320.28.
187	9.  Any motor vehicle used during the course of committing
188	an offense in violation of s. 322.34(9)(a).
189	10.  Any photograph, film, or other recorded image,
190	including an image recorded on videotape, a compact disc,
191	digital tape, or fixed disk, that is recorded in violation of s.
192	810.145 and is possessed for the purpose of amusement,
193	entertainment, sexual arousal, gratification, or profit, or for
194	the purpose of degrading or abusing another person.
195	11.  Any real property, including any right, title,
196	leasehold, or other interest in the whole of any lot or tract of
197	land, which is acquired by proceeds obtained as a result of
198	Medicaid fraud under s. 409.920 or s. 409.9201; any personal
199	property, including, but not limited to, equipment, money,
200	securities, books, records, research, negotiable instruments, or
201	currency; or any vessel, aircraft, item, object, tool,
202	substance, device, weapon, machine, or vehicle of any kind in
203	the possession of or belonging to any person which is acquired
204	by proceeds obtained as a result of Medicaid fraud under s.
205	409.920 or s. 409.9201.
206	12.  Any personal property, including, but not limited to,
207	any vehicle of any kind, item, object, tool, device, weapon,
208	machine, money, security, book, or record, that is used or
209	attempted to be used as an instrumentality in the commission of,
210	or in aiding and abetting in the commission of, a person's third
211	or subsequent violation of s. 509.144, whether or not comprising
212	an element of the offense.
213	Section 5.  Paragraph (b) of subsection (4) of section
214	509.013, Florida Statutes, is amended to read:
215	509.013  Definitions.-As used in this chapter, the term:
216	(4)
217	(b)  The following are excluded from the definitions in
218	paragraph (a):
219	1.  Any dormitory or other living or sleeping facility
220	maintained by a public or private school, college, or university
221	for the use of students, faculty, or visitors;
222	2.  Any facility certified or licensed and regulated by the
223	Agency for Health Care Administration or the Department of
224	Children and Family Services or other similar place regulated
225	under s. 381.0072;
226	3.  Any place renting four rental units or less, unless the
227	rental units are advertised or held out to the public to be
228	places that are regularly rented to transients;
229	4.  Any unit or group of units in a condominium,
230	cooperative, or timeshare plan and any individually or
231	collectively owned one-family, two-family, three-family, or
232	four-family dwelling house or dwelling unit that is rented for
233	periods of at least 30 days or 1 calendar month, whichever is
234	less, and that is not advertised or held out to the public as a
235	place regularly rented for periods of less than 1 calendar
236	month, provided that no more than four rental units within a
237	single complex of buildings are available for rent;
238	5.  Any migrant labor camp or residential migrant housing
239	permitted by the Department of Health; under ss. 381.008-
240	381.00895; and
241	6.  Any establishment inspected by the Department of Health
242	and regulated by chapter 513; and
243	7.  Any nonprofit organization that operates a facility
244	providing housing only to patients, patients' families, and
245	patients' caregivers and not to the general public.
246	Section 6.  Effective upon this act becoming a law,
247	paragraph (a) of subsection (2) and subsection (7) of section
248	509.032, Florida Statutes, are amended to read:
249	509.032  Duties.-
250	(2)  INSPECTION OF PREMISES.-
251	(a)  The division has responsibility and jurisdiction for
252	all inspections required by this chapter. The division has
253	responsibility for quality assurance. Each licensed
254	establishment shall be inspected at least biannually, except for
255	transient and nontransient apartments, which shall be inspected
256	at least annually, and shall be inspected at such other times as
257	the division determines is necessary to ensure the public's
258	health, safety, and welfare. The division shall establish a
259	system to determine inspection frequency. Public lodging units
260	classified as vacation rentals resort condominiums or resort
261	dwellings are not subject to this requirement, but shall be made
262	available to the division upon request. If, during the
263	inspection of a public lodging establishment classified for
264	renting to transient or nontransient tenants, an inspector
265	identifies vulnerable adults who appear to be victims of
266	neglect, as defined in s. 415.102, or, in the case of a building
267	that is not equipped with automatic sprinkler systems, tenants
268	or clients who may be unable to self-preserve in an emergency,
269	the division shall convene meetings with the following agencies
270	as appropriate to the individual situation: the Department of
271	Health, the Department of Elderly Affairs, the area agency on
272	aging, the local fire marshal, the landlord and affected tenants
273	and clients, and other relevant organizations, to develop a plan
274	which improves the prospects for safety of affected residents
275	and, if necessary, identifies alternative living arrangements
276	such as facilities licensed under part II of chapter 400 or
277	under chapter 429.
278	(7)  PREEMPTION AUTHORITY.-
279	(a)  The regulation of public lodging establishments and
280	public food service establishments, including, but not limited
281	to, the inspection of public lodging establishments and public
282	food service establishments for compliance with the sanitation
283	standards, inspections, adopted under this section, and the
284	regulation of food safety protection standards for required
285	training and testing of food service establishment personnel,
286	and matters related to the nutritional content and marketing of
287	foods offered in such establishments, is are preempted to the
288	state. This paragraph subsection does not preempt the authority
289	of a local government or local enforcement district to conduct
290	inspections of public lodging and public food service
291	establishments for compliance with the Florida Building Code and
292	the Florida Fire Prevention Code, pursuant to ss. 553.80 and
293	633.022.
294	(b)  A local law, ordinance, or regulation may not restrict
295	the use of vacation rentals, prohibit vacation rentals, or
296	regulate vacation rentals based solely on their classification,
297	use, or occupancy. This paragraph does not apply to any local
298	law, ordinance, or regulation adopted on or before June 1, 2011,
299	or to any amendment to such local law, ordinance, or regulation
300	exclusively relating to property valuation as a criteria for
301	vacation rental if the existing local law, ordinance, or
302	regulation was approved by the Department of Community Affairs
303	pursuant to an area of critical state concern designation.
304	Section 7.  Effective upon this act becoming a law,
305	subsection (9) of section 509.221, Florida Statutes, is amended
306	to read:
307	509.221  Sanitary regulations.-
308	(9)  Subsections (2), (5), and (6) do not apply to any
309	facility or unit classified as a vacation rental or resort
310	condominium, nontransient apartment, or resort dwelling as
311	described in s. 509.242(1)(c) and, (d), and (g).
312	Section 8.  Effective upon this act becoming a law,
313	subsection (2) of section 509.241, Florida Statutes, is amended
314	to read:
315	509.241  Licenses required; exceptions.-
316	(2)  APPLICATION FOR LICENSE.-Each person who plans to open
317	a public lodging establishment or a public food service
318	establishment shall apply for and receive a license from the
319	division prior to the commencement of operation. A condominium
320	association, as defined in s. 718.103, which does not own any
321	units classified as vacation rentals resort condominiums under
322	s. 509.242(1)(c) is shall not be required to apply for or
323	receive a public lodging establishment license.
324	Section 9.  Effective upon this act becoming a law,
325	subsection (1) of section 509.242, Florida Statutes, is amended
326	to read:
327	509.242  Public lodging establishments; classifications.-
328	(1)  A public lodging establishment shall be classified as
329	a hotel, motel, resort condominium, nontransient apartment,
330	transient apartment, roominghouse, bed and breakfast inn, or
331	vacation rental resort dwelling if the establishment satisfies
332	the following criteria:
333	(a)  Hotel.-A hotel is any public lodging establishment
334	containing sleeping room accommodations for 25 or more guests
335	and providing the services generally provided by a hotel and
336	recognized as a hotel in the community in which it is situated
337	or by the industry.
338	(b)  Motel.-A motel is any public lodging establishment
339	which offers rental units with an exit to the outside of each
340	rental unit, daily or weekly rates, offstreet parking for each
341	unit, a central office on the property with specified hours of
342	operation, a bathroom or connecting bathroom for each rental
343	unit, and at least six rental units, and which is recognized as
344	a motel in the community in which it is situated or by the
345	industry.
346	(c)  Vacation rental Resort condominium.-A vacation rental
347	resort condominium is any unit or group of units in a
348	condominium, cooperative, or timeshare plan or any individually
349	or collectively owned single-family, two-family, or four-family
350	house or dwelling unit that is also a transient public lodging
351	establishment which is rented more than three times in a
352	calendar year for periods of less than 30 days or 1 calendar
353	month, whichever is less, or which is advertised or held out to
354	the public as a place regularly rented for periods of less than
355	30 days or 1 calendar month, whichever is less.
356	(d)  Nontransient apartment or roominghouse.-A nontransient
357	apartment or roominghouse is a building or complex of buildings
358	in which 75 percent or more of the units are available for rent
359	to nontransient tenants.
360	(e)  Transient apartment or roominghouse.-A transient
361	apartment or roominghouse is a building or complex of buildings
362	in which more than 25 percent of the units are advertised or
363	held out to the public as available for transient occupancy.
364	(f)  Roominghouse.-A roominghouse is any public lodging
365	establishment that may not be classified as a hotel, motel,
366	resort condominium, nontransient apartment, bed and breakfast
367	inn, vacation rental, or transient apartment under this section.
368	A roominghouse includes, but is not limited to, a boardinghouse.
369	(g)  Resort dwelling.-A resort dwelling is any individually
370	or collectively owned one-family, two-family, three-family, or
371	four-family dwelling house or dwelling unit which is rented more
372	than three times in a calendar year for periods of less than 30
373	days or 1 calendar month, whichever is less, or which is
374	advertised or held out to the public as a place regularly rented
375	for periods of less than 30 days or 1 calendar month, whichever
376	is less.
377	(g)(h)  Bed and breakfast inn.-A bed and breakfast inn is a
378	family home structure, with no more than 15 sleeping rooms,
379	which has been modified to serve as a transient public lodging
380	establishment, which provides the accommodation and meal
381	services generally offered by a bed and breakfast inn, and which
382	is recognized as a bed and breakfast inn in the community in
383	which it is situated or by the hospitality industry.
384	Section 10.  Effective upon this act becoming a law,
385	subsection (1) of section 509.251, Florida Statutes, is amended
386	to read:
387	509.251  License fees.-
388	(1)  The division shall adopt, by rule, a schedule of fees
389	to be paid by each public lodging establishment as a
390	prerequisite to issuance or renewal of a license. Such fees
391	shall be based on the number of rental units in the
392	establishment. The aggregate fee per establishment charged any
393	public lodging establishment shall not exceed $1,000; however,
394	the fees described in paragraphs (a) and (b) may not be included
395	as part of the aggregate fee subject to this cap. Vacation
396	rental Resort condominium units within separate buildings or at
397	separate locations but managed by one licensed agent may be
398	combined in a single license application, and the division shall
399	charge a license fee as if all units in the application are in a
400	single licensed establishment. Resort dwelling units may be
401	licensed in the same manner as condominium units. The fee
402	schedule shall require an establishment which applies for an
403	initial license to pay the full license fee if application is
404	made during the annual renewal period or more than 6 months
405	prior to the next such renewal period and one-half of the fee if
406	application is made 6 months or less prior to such period. The
407	fee schedule shall include fees collected for the purpose of
408	funding the Hospitality Education Program, pursuant to s.
409	509.302, which are payable in full for each application
410	regardless of when the application is submitted.
411	(a)  Upon making initial application or an application for
412	change of ownership, the applicant shall pay to the division a
413	fee as prescribed by rule, not to exceed $50, in addition to any
414	other fees required by law, which shall cover all costs
415	associated with initiating regulation of the establishment.
416	(b)  A license renewal filed with the division within 30
417	days after the expiration date shall be accompanied by a
418	delinquent fee as prescribed by rule, not to exceed $50, in
419	addition to the renewal fee and any other fees required by law.
420	A license renewal filed with the division more than 30 but not
421	more than 60 days after the expiration date shall be accompanied
422	by a delinquent fee as prescribed by rule, not to exceed $100,
423	in addition to the renewal fee and any other fees required by
424	law.
425	Section 11.  Effective upon this act becoming a law,
426	subsection (1) of section 509.261, Florida Statutes, is amended
427	to read:
428	509.261  Revocation or suspension of licenses; fines;
429	procedure.-
430	(1)  Any public lodging establishment or public food
431	service establishment that has operated or is operating in
432	violation of this chapter or the rules of the division,
433	operating without a license, or operating with a suspended or
434	revoked license may be subject by the division to:
435	(a)  Fines not to exceed $1,000 per offense;
436	(b)  Mandatory completion attendance, at personal expense,
437	of a remedial at an educational program administered sponsored
438	by a food safety training program provider whose program has
439	been approved by the division, as provided in s. 509.049 the
440	Hospitality Education Program; and
441	(c)  The suspension, revocation, or refusal of a license
442	issued pursuant to this chapter.
443	Section 12.  Effective upon this act becoming a law,
444	subsection (1) of section 509.291, Florida Statutes, is amended
445	to read:
446	509.291  Advisory council.-
447	(1)  There is created a 10-member advisory council.
448	(a)  The Secretary of Business and Professional Regulation
449	shall appoint six seven voting members to the advisory council.
450	Each member appointed by the secretary must be an operator of an
451	establishment licensed under this chapter and shall represent
452	the industries regulated by the division, except that one member
453	appointed by the secretary must be a layperson representing the
454	general public and one member must be a hospitality education
455	administrator from an institution of higher education of this
456	state. Such members of the council shall serve staggered terms
457	of 4 years.
458	(b)  The Florida Restaurant and Lodging Association shall
459	designate one representative to serve as a voting member of the
460	council. The Florida Vacation Rental Managers Association shall
461	designate one representative to serve as a voting member of the
462	council. The Florida Apartment Association and the Florida
463	Association of Realtors shall each designate one representative
464	to serve as a voting member of the council.
465	(c)  Any member who fails to attend three consecutive
466	council meetings without good cause may be removed from the
467	council by the secretary.
468	Section 13.  Effective upon this act becoming a law,
469	paragraph (c) of subsection (8) of section 381.008, Florida
470	Statutes, is amended to read:
471	381.008  Definitions of terms used in ss. 381.008-
472	381.00897.-As used in ss. 381.008-381.00897, the following words
473	and phrases mean:
474	(8)  "Residential migrant housing"-A building, structure,
475	mobile home, barracks, or dormitory, and any combination thereof
476	on adjacent property which is under the same ownership,
477	management, or control, and the land appertaining thereto, that
478	is rented or reserved for occupancy by five or more seasonal or
479	migrant farmworkers, except:
480	(c)  A hotel, or motel, or resort condominium, as described
481	defined in chapter 509, that is furnished for transient
482	occupancy.
483	Section 14.  Effective upon this act becoming a law,
484	subsection (4) of section 386.203, Florida Statutes, is amended
485	to read:
486	386.203  Definitions.-As used in this part:
487	(4)  "Designated smoking guest rooms at public lodging
488	establishments" means the sleeping rooms and directly associated
489	private areas, such as bathrooms, living rooms, and kitchen
490	areas, if any, rented to guests for their exclusive transient
491	occupancy in public lodging establishments, including hotels,
492	motels, vacation rentals resort condominiums, transient
493	apartments, transient lodging establishments, rooming houses,
494	boarding houses, resort dwellings, bed and breakfast inns, and
495	the like; and designated by the person or persons having
496	management authority over such public lodging establishment as
497	rooms in which smoking may be permitted.
498	Section 15.  The amendments to ss. 509.144 and 932.701,
499	Florida Statutes, and the creation of s. 901.1503, Florida
500	Statutes, by this act do not affect or impede the provisions of
501	s. 790.251, Florida Statutes, or any other protection or right
502	guaranteed by the Second Amendment to the United States
503	Constitution.
504	Section 16.  Except as otherwise expressly provided in this
505	act and except for this section, which shall take effect upon
506	this act becoming a law, this act shall take effect October 1,
507	2011.

CODING: Words stricken are deletions; words underlined are additions.