CS/CS/CS/HB 883

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

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