CS/CS/CS/HB 883

1
A bill to be entitled
2An act relating to public lodging establishments and
3public food service establishments; amending s. 509.013,
4F.S.; excluding nonprofit organizations providing certain
5housing from the definition of "public lodging
6establishment"; amending s. 509.032, F.S.; conforming
7provisions to changes made by the act; prohibiting local
8governments from regulating, restricting, or prohibiting
9vacation rentals based solely on their classification,
10use, or occupancy; providing exceptions; revising
11authority preempted to the state with regard to regulation
12of public lodging establishments and public food service
13establishments; amending ss. 509.221 and 509.241, F.S.;
14conforming provisions to changes made by the act; amending
15s. 509.242, F.S.; providing that public lodging
16establishments formerly classified as resort condominiums
17and resort dwellings are classified as vacation rentals;
18defining the term "vacation rental"; amending s. 509.251,
19F.S.; conforming provisions to changes made by the act;
20amending s. 509.261, F.S.; revising penalties for public
21lodging establishments and public food service
22establishments operating without a valid license; amending
23s. 509.291, F.S.; revising membership of the advisory
24council of the Division of Hotels and Restaurants of the
25Department of Business and Professional Regulation;
26requiring the Florida Vacation Rental Managers Association
27to designate a member to serve on the advisory council;
28amending ss. 381.008 and 386.203, F.S.; conforming
29provisions to changes made by the act; providing a short
30title; amending s. 509.144, F.S.; revising definitions;
31providing additional penalties for the offense of
32unlawfully distributing handbills in a public lodging
33establishment; specifying that certain items used in
34committing such offense are subject to seizure and
35forfeiture under the Florida Contraband Forfeiture Act;
36creating s. 901.1503, F.S.; authorizing a law enforcement
37officer to give a notice to appear to a person without a
38warrant when there is probable cause to believe the person
39violated s. 509.144, F.S., and the owner or manager of the
40public lodging establishment and one additional affiant
41sign an affidavit containing information supporting the
42determination of probable cause; amending s. 932.701,
43F.S.; revising the definition of the term "contraband
44article"; providing that specified portions of the act do
45not affect or impede specified statutory provisions or any
46protection or right guaranteed by the Second Amendment to
47the United States Constitution; providing an effective
48date.
49
50Be It Enacted by the Legislature of the State of Florida:
51
52     Section 1.  Paragraph (b) of subsection (4) of section
53509.013, Florida Statutes, is amended to read:
54     (4)
55     (b)  The following are excluded from the definitions in
56paragraph (a):
57     1.  Any dormitory or other living or sleeping facility
58maintained by a public or private school, college, or university
59for the use of students, faculty, or visitors;
60     2.  Any facility certified or licensed and regulated by the
61Agency for Health Care Administration or the Department of
62Children and Family Services or other similar place regulated
63under s. 381.0072;
64     3.  Any place renting four rental units or less, unless the
65rental units are advertised or held out to the public to be
66places that are regularly rented to transients;
67     4.  Any unit or group of units in a condominium,
68cooperative, or timeshare plan and any individually or
69collectively owned one-family, two-family, three-family, or
70four-family dwelling house or dwelling unit that is rented for
71periods of at least 30 days or 1 calendar month, whichever is
72less, and that is not advertised or held out to the public as a
73place regularly rented for periods of less than 1 calendar
74month, provided that no more than four rental units within a
75single complex of buildings are available for rent;
76     5.  Any migrant labor camp or residential migrant housing
77permitted by the Department of Health; under ss. 381.008-
78381.00895; and
79     6.  Any establishment inspected by the Department of Health
80and regulated by chapter 513; and
81     7.  Any nonprofit organization that operates a facility
82providing housing only to patients, patients' families, and
83patients' caregivers and not to the general public.
84
85     Section 2.  Paragraph (a) of subsection (2) and subsection
86(7) of section 509.032, Florida Statutes, are amended to read:
87     509.032  Duties.-
88     (2)  INSPECTION OF PREMISES.-
89     (a)  The division has responsibility and jurisdiction for
90all inspections required by this chapter. The division has
91responsibility for quality assurance. Each licensed
92establishment shall be inspected at least biannually, except for
93transient and nontransient apartments, which shall be inspected
94at least annually, and shall be inspected at such other times as
95the division determines is necessary to ensure the public's
96health, safety, and welfare. The division shall establish a
97system to determine inspection frequency. Public lodging units
98classified as vacation rentals resort condominiums or resort
99dwellings are not subject to this requirement, but shall be made
100available to the division upon request. If, during the
101inspection of a public lodging establishment classified for
102renting to transient or nontransient tenants, an inspector
103identifies vulnerable adults who appear to be victims of
104neglect, as defined in s. 415.102, or, in the case of a building
105that is not equipped with automatic sprinkler systems, tenants
106or clients who may be unable to self-preserve in an emergency,
107the division shall convene meetings with the following agencies
108as appropriate to the individual situation: the Department of
109Health, the Department of Elderly Affairs, the area agency on
110aging, the local fire marshal, the landlord and affected tenants
111and clients, and other relevant organizations, to develop a plan
112which improves the prospects for safety of affected residents
113and, if necessary, identifies alternative living arrangements
114such as facilities licensed under part II of chapter 400 or
115under chapter 429.
116     (7)  PREEMPTION AUTHORITY.-
117     (a)  The regulation of public lodging establishments and
118public food service establishments, including, but not limited
119to, the inspection of public lodging establishments and public
120food service establishments for compliance with the sanitation
121standards, inspections, adopted under this section, and the
122regulation of food safety protection standards for required
123training and testing of food service establishment personnel,
124and matters related to the nutritional content and marketing of
125foods offered in such establishments, is are preempted to the
126state. This paragraph subsection does not preempt the authority
127of a local government or local enforcement district to conduct
128inspections of public lodging and public food service
129establishments for compliance with the Florida Building Code and
130the Florida Fire Prevention Code, pursuant to ss. 553.80 and
131633.022.
132     (b)  A local law, ordinance, or regulation may not restrict
133the use of vacation rentals, prohibit vacation rentals, or
134regulate vacation rentals based solely on their classification,
135use, or occupancy. This paragraph does not apply to any local
136law, ordinance, or regulation adopted on or before June 1, 2011.
137     (c)  Paragraph (b) does not apply to any local law,
138ordinance, or regulation exclusively relating to property
139valuation as a criterion for vacation rental if the local law,
140ordinance, or regulation is required to be approved by the
141Department of Community Affairs pursuant to an area of critical
142state concern designation.
143     Section 3.  Subsection (9) of section 509.221, Florida
144Statutes, is amended to read:
145     509.221  Sanitary regulations.-
146     (9)  Subsections (2), (5), and (6) do not apply to any
147facility or unit classified as a vacation rental or resort
148condominium, nontransient apartment, or resort dwelling as
149described in s. 509.242(1)(c) and, (d), and (g).
150     Section 4.  Subsection (2) of section 509.241, Florida
151Statutes, is amended to read:
152     509.241  Licenses required; exceptions.-
153     (2)  APPLICATION FOR LICENSE.-Each person who plans to open
154a public lodging establishment or a public food service
155establishment shall apply for and receive a license from the
156division prior to the commencement of operation. A condominium
157association, as defined in s. 718.103, which does not own any
158units classified as vacation rentals resort condominiums under
159s. 509.242(1)(c) is shall not be required to apply for or
160receive a public lodging establishment license.
161     Section 5.  Subsection (1) of section 509.242, Florida
162Statutes, is amended to read:
163     509.242  Public lodging establishments; classifications.-
164     (1)  A public lodging establishment shall be classified as
165a hotel, motel, resort condominium, nontransient apartment,
166transient apartment, roominghouse, bed and breakfast inn, or
167vacation rental resort dwelling if the establishment satisfies
168the following criteria:
169     (a)  Hotel.-A hotel is any public lodging establishment
170containing sleeping room accommodations for 25 or more guests
171and providing the services generally provided by a hotel and
172recognized as a hotel in the community in which it is situated
173or by the industry.
174     (b)  Motel.-A motel is any public lodging establishment
175which offers rental units with an exit to the outside of each
176rental unit, daily or weekly rates, offstreet parking for each
177unit, a central office on the property with specified hours of
178operation, a bathroom or connecting bathroom for each rental
179unit, and at least six rental units, and which is recognized as
180a motel in the community in which it is situated or by the
181industry.
182     (c)  Vacation rental Resort condominium.-A vacation rental
183resort condominium is any unit or group of units in a
184condominium, cooperative, or timeshare plan or any individually
185or collectively owned single-family, two-family, or four-family
186house or dwelling unit that is also a transient public lodging
187establishment which is rented more than three times in a
188calendar year for periods of less than 30 days or 1 calendar
189month, whichever is less, or which is advertised or held out to
190the public as a place regularly rented for periods of less than
19130 days or 1 calendar month, whichever is less.
192     (d)  Nontransient apartment or roominghouse.-A nontransient
193apartment or roominghouse is a building or complex of buildings
194in which 75 percent or more of the units are available for rent
195to nontransient tenants.
196     (e)  Transient apartment or roominghouse.-A transient
197apartment or roominghouse is a building or complex of buildings
198in which more than 25 percent of the units are advertised or
199held out to the public as available for transient occupancy.
200     (f)  Roominghouse.-A roominghouse is any public lodging
201establishment that may not be classified as a hotel, motel,
202resort condominium, nontransient apartment, bed and breakfast
203inn, vacation rental, or transient apartment under this section.
204A roominghouse includes, but is not limited to, a boardinghouse.
205     (g)  Resort dwelling.-A resort dwelling is any individually
206or collectively owned one-family, two-family, three-family, or
207four-family dwelling house or dwelling unit which is rented more
208than three times in a calendar year for periods of less than 30
209days or 1 calendar month, whichever is less, or which is
210advertised or held out to the public as a place regularly rented
211for periods of less than 30 days or 1 calendar month, whichever
212is less.
213     (g)(h)  Bed and breakfast inn.-A bed and breakfast inn is a
214family home structure, with no more than 15 sleeping rooms,
215which has been modified to serve as a transient public lodging
216establishment, which provides the accommodation and meal
217services generally offered by a bed and breakfast inn, and which
218is recognized as a bed and breakfast inn in the community in
219which it is situated or by the hospitality industry.
220     Section 6.  Subsection (1) of section 509.251, Florida
221Statutes, is amended to read:
222     509.251  License fees.-
223     (1)  The division shall adopt, by rule, a schedule of fees
224to be paid by each public lodging establishment as a
225prerequisite to issuance or renewal of a license. Such fees
226shall be based on the number of rental units in the
227establishment. The aggregate fee per establishment charged any
228public lodging establishment shall not exceed $1,000; however,
229the fees described in paragraphs (a) and (b) may not be included
230as part of the aggregate fee subject to this cap. Vacation
231rental Resort condominium units within separate buildings or at
232separate locations but managed by one licensed agent may be
233combined in a single license application, and the division shall
234charge a license fee as if all units in the application are in a
235single licensed establishment. Resort dwelling units may be
236licensed in the same manner as condominium units. The fee
237schedule shall require an establishment which applies for an
238initial license to pay the full license fee if application is
239made during the annual renewal period or more than 6 months
240prior to the next such renewal period and one-half of the fee if
241application is made 6 months or less prior to such period. The
242fee schedule shall include fees collected for the purpose of
243funding the Hospitality Education Program, pursuant to s.
244509.302, which are payable in full for each application
245regardless of when the application is submitted.
246     (a)  Upon making initial application or an application for
247change of ownership, the applicant shall pay to the division a
248fee as prescribed by rule, not to exceed $50, in addition to any
249other fees required by law, which shall cover all costs
250associated with initiating regulation of the establishment.
251     (b)  A license renewal filed with the division within 30
252days after the expiration date shall be accompanied by a
253delinquent fee as prescribed by rule, not to exceed $50, in
254addition to the renewal fee and any other fees required by law.
255A license renewal filed with the division more than 30 but not
256more than 60 days after the expiration date shall be accompanied
257by a delinquent fee as prescribed by rule, not to exceed $100,
258in addition to the renewal fee and any other fees required by
259law.
260     Section 7.  Subsection (1) of section 509.261, Florida
261Statutes, is amended to read:
262     509.261  Revocation or suspension of licenses; fines;
263procedure.-
264     (1)  Any public lodging establishment or public food
265service establishment that has operated or is operating in
266violation of this chapter or the rules of the division,
267operating without a license, or operating with a suspended or
268revoked license may be subject by the division to:
269     (a)  Fines not to exceed $1,000 per offense;
270     (b)  Mandatory completion attendance, at personal expense,
271of a remedial at an educational program administered sponsored
272by a food safety training program provider approved by the
273division, as provided in s. 509.049 the Hospitality Education
274Program; and
275     (c)  The suspension, revocation, or refusal of a license
276issued pursuant to this chapter.
277     Section 8.  Subsection (1) of section 509.291, Florida
278Statutes, is amended to read:
279     509.291  Advisory council.-
280     (1)  There is created a 10-member advisory council.
281     (a)  The Secretary of Business and Professional Regulation
282shall appoint six seven voting members to the advisory council.
283Each member appointed by the secretary must be an operator of an
284establishment licensed under this chapter and shall represent
285the industries regulated by the division, except that one member
286appointed by the secretary must be a layperson representing the
287general public and one member must be a hospitality education
288administrator from an institution of higher education of this
289state. Such members of the council shall serve staggered terms
290of 4 years.
291     (b)  The Florida Restaurant and Lodging Association shall
292designate one representative to serve as a voting member of the
293council. The Florida Vacation Rental Managers Association shall
294designate one representative to serve as a voting member of the
295council. The Florida Apartment Association and the Florida
296Association of Realtors shall each designate one representative
297to serve as a voting member of the council.
298     (c)  Any member who fails to attend three consecutive
299council meetings without good cause may be removed from the
300council by the secretary.
301     Section 9.  Paragraph (c) of subsection (8) of section
302381.008, Florida Statutes, is amended to read:
303     381.008  Definitions of terms used in ss. 381.008-
304381.00897.-As used in ss. 381.008-381.00897, the following words
305and phrases mean:
306     (8)  "Residential migrant housing"-A building, structure,
307mobile home, barracks, or dormitory, and any combination thereof
308on adjacent property which is under the same ownership,
309management, or control, and the land appertaining thereto, that
310is rented or reserved for occupancy by five or more seasonal or
311migrant farmworkers, except:
312     (c)  A hotel, or motel, or resort condominium, as described
313defined in chapter 509, that is furnished for transient
314occupancy.
315     Section 10.  Subsection (4) of section 386.203, Florida
316Statutes, is amended to read:
317     386.203  Definitions.-As used in this part:
318     (4)  "Designated smoking guest rooms at public lodging
319establishments" means the sleeping rooms and directly associated
320private areas, such as bathrooms, living rooms, and kitchen
321areas, if any, rented to guests for their exclusive transient
322occupancy in public lodging establishments, including hotels,
323motels, vacation rentals resort condominiums, transient
324apartments, transient lodging establishments, rooming houses,
325boarding houses, resort dwellings, bed and breakfast inns, and
326the like; and designated by the person or persons having
327management authority over such public lodging establishment as
328rooms in which smoking may be permitted.
329     Section 11.  Sections 11 through 14 of this act may be
330cited as the "Tourist Safety Act of 2011."
331     Section 12.  Section 509.144, Florida Statutes, is amended
332to read:
333     509.144  Prohibited handbill distribution in a public
334lodging establishment; penalties.-
335     (1)  As used in this section, the term:
336     (a)  "Handbill" means a flier, leaflet, pamphlet, or other
337written material that advertises, promotes, or informs persons
338about a person an individual, business, company, or food service
339establishment, but does shall not include employee
340communications permissible under the National Labor Relations
341Act, other communications protected by the First Amendment to
342the United States Constitution, or communications about public
343health, safety, or welfare distributed by a federal, state, or
344local governmental entity or a public or private utility.
345     (b)  "Without permission" means without the expressed
346written or oral permission of the owner, manager, or agent of
347the owner or manager of the public lodging establishment where a
348sign is posted prohibiting advertising or solicitation in the
349manner provided in subsection (5) (4).
350     (c)  "At or in a public lodging establishment" means any
351property under the sole ownership or control of a public lodging
352establishment.
353     (2)  Any person individual, agent, contractor, or volunteer
354who is acting on behalf of a person an individual, business,
355company, or food service establishment and who, without
356permission, delivers, distributes, or places, or attempts to
357deliver, distribute, or place, a handbill at or in a public
358lodging establishment commits a misdemeanor of the first degree,
359punishable as provided in s. 775.082 or s. 775.083.
360     (3)  Any person who, without permission, directs another
361person to deliver, distribute, or place, or attempts to deliver,
362distribute, or place, a handbill at or in a public lodging
363establishment commits a misdemeanor of the first degree,
364punishable as provided in s. 775.082 or s. 775.083. Any person
365sentenced under this subsection shall be ordered to pay a
366minimum fine of $500 in addition to any other penalty imposed by
367the court.
368     (4)  In addition to any penalty imposed by the court, a
369person who violates subsection (2) or subsection (3):
370     (a)  Shall pay a minimum fine of $2,000 for a second
371violation.
372     (b)  Shall pay a minimum fine of $3,000 for a third or
373subsequent violation.
374     (5)(4)  For purposes of this section, a public lodging
375establishment that intends to prohibit advertising or
376solicitation, as described in this section, at or in such
377establishment must comply with the following requirements when
378posting a sign prohibiting such solicitation or advertising:
379     (a)  There must appear prominently on any sign referred to
380in this subsection, in letters of not less than 2 inches in
381height, the terms "no advertising" or "no solicitation" or terms
382that indicate the same meaning.
383     (b)  The sign must be posted conspicuously.
384     (c)  If the main office of the public lodging establishment
385is immediately accessible by entering the office through a door
386from a street, parking lot, grounds, or other area outside such
387establishment, the sign must be placed on a part of the main
388office, such as a door or window, and the sign must face the
389street, parking lot, grounds, or other area outside such
390establishment.
391     (d)  If the main office of the public lodging establishment
392is not immediately accessible by entering the office through a
393door from a street, parking lot, grounds, or other area outside
394such establishment, the sign must be placed in the immediate
395vicinity of the main entrance to such establishment, and the
396sign must face the street, parking lot, grounds, or other area
397outside such establishment.
398     (6)  Any personal property, including, but not limited to,
399any vehicle, item, object, tool, device, weapon, machine, money,
400security, book, or record, that is used or attempted to be used
401as an instrumentality in the commission of, or in aiding and
402abetting in the commission of, a person's third or subsequent
403violation of this section, whether or not comprising an element
404of the offense, is subject to seizure and forfeiture under the
405Florida Contraband Forfeiture Act.
406     Section 13.  Section 901.1503, Florida Statutes, is created
407to read:
408     901.1503  When notice to appear by officer without warrant
409is lawful.-A law enforcement officer may give a notice to appear
410to a person without a warrant when the officer has determined
411that he or she has probable cause to believe that a violation of
412s. 509.144 has been committed and the owner or manager of the
413public lodging establishment in which the violation occurred and
414one additional affiant sign an affidavit containing information
415that supports the officer's determination of probable cause.
416     Section 14.  Paragraph (a) of subsection (2) of section
417932.701, Florida Statutes, is amended to read:
418     932.701  Short title; definitions.-
419     (2)  As used in the Florida Contraband Forfeiture Act:
420     (a)  "Contraband article" means:
421     1.  Any controlled substance as defined in chapter 893 or
422any substance, device, paraphernalia, or currency or other means
423of exchange that was used, was attempted to be used, or was
424intended to be used in violation of any provision of chapter
425893, if the totality of the facts presented by the state is
426clearly sufficient to meet the state's burden of establishing
427probable cause to believe that a nexus exists between the
428article seized and the narcotics activity, whether or not the
429use of the contraband article can be traced to a specific
430narcotics transaction.
431     2.  Any gambling paraphernalia, lottery tickets, money,
432currency, or other means of exchange which was used, was
433attempted, or intended to be used in violation of the gambling
434laws of the state.
435     3.  Any equipment, liquid or solid, which was being used,
436is being used, was attempted to be used, or intended to be used
437in violation of the beverage or tobacco laws of the state.
438     4.  Any motor fuel upon which the motor fuel tax has not
439been paid as required by law.
440     5.  Any personal property, including, but not limited to,
441any vessel, aircraft, item, object, tool, substance, device,
442weapon, machine, vehicle of any kind, money, securities, books,
443records, research, negotiable instruments, or currency, which
444was used or was attempted to be used as an instrumentality in
445the commission of, or in aiding or abetting in the commission
446of, any felony, whether or not comprising an element of the
447felony, or which is acquired by proceeds obtained as a result of
448a violation of the Florida Contraband Forfeiture Act.
449     6.  Any real property, including any right, title,
450leasehold, or other interest in the whole of any lot or tract of
451land, which was used, is being used, or was attempted to be used
452as an instrumentality in the commission of, or in aiding or
453abetting in the commission of, any felony, or which is acquired
454by proceeds obtained as a result of a violation of the Florida
455Contraband Forfeiture Act.
456     7.  Any personal property, including, but not limited to,
457equipment, money, securities, books, records, research,
458negotiable instruments, currency, or any vessel, aircraft, item,
459object, tool, substance, device, weapon, machine, or vehicle of
460any kind in the possession of or belonging to any person who
461takes aquaculture products in violation of s. 812.014(2)(c).
462     8.  Any motor vehicle offered for sale in violation of s.
463320.28.
464     9.  Any motor vehicle used during the course of committing
465an offense in violation of s. 322.34(9)(a).
466     10.  Any photograph, film, or other recorded image,
467including an image recorded on videotape, a compact disc,
468digital tape, or fixed disk, that is recorded in violation of s.
469810.145 and is possessed for the purpose of amusement,
470entertainment, sexual arousal, gratification, or profit, or for
471the purpose of degrading or abusing another person.
472     11.  Any real property, including any right, title,
473leasehold, or other interest in the whole of any lot or tract of
474land, which is acquired by proceeds obtained as a result of
475Medicaid fraud under s. 409.920 or s. 409.9201; any personal
476property, including, but not limited to, equipment, money,
477securities, books, records, research, negotiable instruments, or
478currency; or any vessel, aircraft, item, object, tool,
479substance, device, weapon, machine, or vehicle of any kind in
480the possession of or belonging to any person which is acquired
481by proceeds obtained as a result of Medicaid fraud under s.
482409.920 or s. 409.9201.
483     12.  Any personal property, including, but not limited to,
484any vehicle, item, object, tool, device, weapon, machine, money,
485security, book, or record, that is used or attempted to be used
486as an instrumentality in the commission of, or in aiding and
487abetting in the commission of, a person's third or subsequent
488violation of s. 509.144, whether or not comprising an element of
489the offense.
490     Section 15.  The amendments made to ss. 509.144 and
491932.701, Florida Statutes, and the creation of s. 901.1503,
492Florida Statutes, by this act do not affect or impede the
493provisions of s. 790.251, Florida Statutes, or any other
494protection or right guaranteed by the Second Amendment to the
495United States Constitution.
496     Section 16.  This act shall take effect upon becoming a
497law.


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