Florida Senate - 2012 CS for SB 412 By the Committee on Governmental Oversight and Accountability; and Senators Bennett and Storms 585-02799-12 2012412c1 1 A bill to be entitled 2 An act relating to an assessment on the sale of 3 masonry units; creating the “Concrete Masonry Products 4 Research, Education, and Promotion Act”; providing 5 definitions; creating the Florida Concrete Masonry 6 Council, Inc., as a nonprofit corporation; authorizing 7 the council to levy an assessment on the sale of 8 masonry units by a manufacturer, under certain 9 circumstances; specifying the powers and duties of the 10 council; prohibiting the council from participating or 11 intervening in any political campaign; prohibiting the 12 council from using any receipt to benefit its 13 directors, officers, or other private persons; 14 prohibiting the council from engaging in certain 15 activities or exercising certain powers; providing for 16 the appointment of the governing board of the council; 17 providing that board members serve without 18 compensation; entitling members to receive 19 reimbursement for per diem and travel expenses; 20 authorizing the council to submit a referendum to 21 manufacturers of masonry units for authorization to 22 levy an assessment on the sale of concrete masonry 23 units; providing for the administrative powers and 24 duties of the council; authorizing the council to 25 accept grants, donations, contributions, or gifts 26 under certain circumstances; authorizing the council 27 to make payments to other organizations under certain 28 circumstances; requiring that a manufacturer of 29 concrete masonry products collect the assessment from 30 a purchaser at the time of sale of a concrete masonry 31 unit; authorizing the council to initiate legal action 32 against a manufacturer that fails to remit the 33 assessment; providing a procedure for manufacturers to 34 petition for a referendum to continue the assessment; 35 requiring the council to adopt bylaws; providing an 36 effective date. 37 38 WHEREAS, the Legislature intends to promote the growth of 39 the concrete masonry industry in this state; to assure the 40 public that a superior, sustainable construction material is 41 produced by a skilled and educated workforce; to provide for the 42 general economic welfare of the state and of the producers, 43 contractors, and end-use consumers of masonry products; and to 44 provide the masonry industry of this state with the authority to 45 establish a self-financed, self-governed program to help 46 develop, maintain, and expand the state, national, and foreign 47 markets for masonry products and services that are mined, 48 manufactured, produced, or processed in this state, NOW, 49 THEREFORE, 50 51 Be It Enacted by the Legislature of the State of Florida: 52 53 Section 1. Concrete Masonry Products Research, Education, 54 and Promotion Act.— 55 (1) SHORT TITLE.—This section may be cited as the “Concrete 56 Masonry Products Research, Education, and Promotion Act.” 57 (2) DEFINITIONS.—As used in this section, the term: 58 (a) “Commission” means the Florida Building Commission. 59 (b) “Concrete masonry products” refers to a broad class of 60 products, including, but not limited to, concrete masonry units 61 and hardscape products such as concrete pavers and segmental 62 retaining wall units that are manufactured on a block machine 63 using dry-cast concrete. 64 (c) “Concrete masonry unit” means a concrete masonry 65 product that is a man-made masonry unit having a nominal width 66 of 3 inches or greater and manufactured by a block machine using 67 dry-cast concrete. The term includes, but is not limited to, 68 gray block, architectural block, concrete brick, concrete 69 masonry units to be post-tensioned, concrete masonry units to be 70 surface-bonded, sound wall block, and fence block. The term does 71 not include concrete veneer units having a width of less than 3 72 inches, segmental retaining wall units, concrete pavers, clay 73 brick, clay masonry units, precast panels, cast stone, adhered 74 manufactured stone masonry veneer, calcium silicate units, 75 lintels and sills, articulating concrete or revetment block, 76 autoclave-aerated concrete, and dimension stone. 77 (d) “Council” means the Florida Concrete Masonry Council, 78 Inc. 79 (e) “Machine cavity” means the open space in the mold of a 80 block machine capable of forming a single masonry unit that has 81 nominal plan dimensions of 8 inches by 16 inches. 82 (f) “Manufacturer” means a person engaged in the business 83 of manufacturing concrete masonry units. 84 (g) “Masonry unit” means a noncombustible building product 85 intended to be laid by hand or to be joined using mortar, grout, 86 surface bonding, post-tensioning, or some combination of these 87 methods. 88 (3) FLORIDA CONCRETE MASONRY COUNCIL, INC.; CREATION; 89 PURPOSES.— 90 (a) There is created the Florida Concrete Masonry Council, 91 Inc., a nonprofit corporation organized under the laws of this 92 state and operating as a direct-support organization of the 93 commission. 94 (b) The council may levy an assessment of 1 cent per 95 concrete masonry unit that is produced and sold by a 96 manufacturer in the state if the imposition of the assessment is 97 approved by referendum pursuant to subsection (5). The proceeds 98 of the assessment shall be used to fund the activities of the 99 council. With respect to the administration of the assessment, 100 the council shall: 101 1. Develop, implement, and monitor a collection system for 102 the assessment which must be administered by an independent 103 third party. 104 2. Conduct referenda under subsections (5) and (11). 105 (c) The council shall: 106 1. Plan, implement, and conduct programs of education, 107 promotion, research, and consumer information and industry 108 information which are designed to strengthen the market position 109 of the concrete masonry industry in this state and in the 110 nation, to maintain and expand domestic and foreign markets, and 111 to expand the uses for concrete masonry products. 112 2. Use the proceeds of the assessment for the purpose of 113 funding research, education, promotion, and consumer and 114 industry information of concrete masonry products in this state 115 and in the nation. 116 3. Coordinate research, education, promotion, industry, and 117 consumer information programs with national programs or programs 118 of other states. 119 4. Develop new uses and markets for concrete masonry 120 products. 121 5. Develop and improve educational access to individuals 122 seeking employment in the field of concrete masonry. 123 6. Develop methods of improving the quality of concrete 124 masonry products for the purpose of windstorm protection. 125 7. Develop methods of improving the energy efficiency 126 attributes of concrete masonry products. 127 8. Inform and educate the public concerning the 128 sustainability and economic benefits of concrete masonry 129 products. 130 9. Serve as a liaison within the concrete masonry and other 131 construction industries of the state and elsewhere in matters 132 that would increase efficiencies that ultimately benefit both 133 the consumer and the concrete masonry industry. 134 10. Buy, sell, mortgage, rent, or improve, in any manner 135 that the council considers expedient, real property or personal 136 property, or both. 137 11. Publish and distribute such papers or periodicals as 138 the board of directors considers necessary to encourage and 139 accomplish the purposes of the council. 140 12. Do all other acts necessary or expedient for the 141 administration of the affairs and attainment of the purposes of 142 the council. 143 13. Approve an annual plan, budget, and audit for the 144 council. 145 (d)1. The council may not participate or intervene in any 146 political campaign on behalf of or in opposition to any 147 candidate for public office or on behalf of or in opposition to 148 any state or local ballot initiative. This restriction includes, 149 but is not limited to, a prohibition against publishing or 150 distributing any statement. 151 2. The net receipts of the council may not in any part 152 inure to the benefit of or be distributable to its directors, 153 its officers, or other private persons, except that the council 154 may pay reasonable compensation for services rendered by staff 155 employees and may make payments and distributions in furtherance 156 of the purposes of this section. 157 3. Notwithstanding any other provision of law, the council 158 may not carry on any other activity not permitted to be carried 159 on by a corporation: 160 a. That is exempt from federal income tax under s. 161 501(c)(3) of the Internal Revenue Code; or 162 b. To which charitable contributions are deductible under 163 s. 170(c)(2) of the Internal Revenue Code. 164 4. Notwithstanding any other statement of the purposes and 165 responsibilities of the council, the council may not engage in 166 any activity or exercise any power that is not in furtherance of 167 its specific and primary purposes. 168 (4) GOVERNING BOARD.— 169 (a) The Florida Concrete Masonry Council, Inc., shall be 170 governed by a board of directors composed of 15 members as 171 follows: 172 1. Nine members representing concrete masonry 173 manufacturers. Of these board members, at least five must be a 174 representative of a manufacturer that is a member of the Masonry 175 Association of Florida. These members must be representatives of 176 concrete masonry manufacturers of various sizes. A manufacturer 177 may not be represented by more than one member of the board. 178 2. One member representing the Florida Building Commission. 179 3. One member representing the Florida Homebuilders 180 Association. 181 4. One member having expertise in apprenticeship or 182 vocational training. 183 5. Two members who are masonry contractors and who are 184 members of the Masonry Association of Florida. 185 6. One member who is not a masonry contractor or 186 manufacturer or an employee of a masonry contractor or 187 manufacturer, but who is otherwise a stakeholder in the masonry 188 industry. 189 (b) The initial board of directors shall be appointed by 190 the chair of the commission based on recommendations from the 191 Masonry Association of Florida. Five of the initial board 192 members shall be appointed to a 1-year term. Five shall be 193 appointed for a 2-year term. The remaining board members shall 194 be appointed for a 3-year term. Thereafter, each member shall be 195 appointed to serve a 3-year term and may be reappointed to serve 196 an additional consecutive term. After the initial appointments 197 are made, each subsequent vacancy must be filled in accordance 198 with the bylaws of the council. A member may not serve more than 199 two consecutive terms. A member representing a manufacturer or a 200 contractor must be employed by a manufacturer or contractor 201 engaging in the trade or manufacture of concrete masonry 202 products for at least 5 years immediately preceding the first 203 day of his or her service on the board. All members of the board 204 shall serve without compensation. However, the board members are 205 entitled to reimbursement for per diem and travel expenses 206 incurred in carrying out the intents and purposes of this 207 section in accordance with s. 112.061, Florida Statutes. 208 (c) The council shall elect from its members a chair, vice 209 chair, and a secretary-treasurer to a 2-year term. The chair of 210 the board must be a concrete masonry manufacturer. 211 (d) The council shall provide for its officers through its 212 bylaws, including the ability to set forth offices and 213 responsibilities and form committees necessary for the 214 administration of this section. 215 (e) If a member of the board is absent for two consecutive, 216 officially called meetings, the board of directors may declare 217 that position vacant. 218 (f) The council shall provide through its bylaws a 219 mechanism for selecting board members which will require the 220 council to solicit candidates from throughout the concrete 221 masonry industry. The mechanism must ensure a fair and equitable 222 representation on the board of manufacturers of various sizes 223 and manufacturers from regions throughout the state. 224 (5) REFERENDUM ON ASSESSMENTS.—All concrete masonry 225 manufacturers in this state may vote in a referendum to 226 determine whether the council may levy an assessment of 1 cent 227 per concrete masonry unit. The referendum shall pose the 228 question: “Do you approve of authorizing the Florida Concrete 229 Masonry Council, Inc., to levy an assessment, pursuant to 230 Florida law, of $0.01 per concrete masonry unit sold by a 231 manufacturer in this state, to be used for the education of 232 concrete masonry workers, research, and the promotion of 233 concrete masonry products?” The ballot provided to each 234 manufacturer must be accompanied with a copy of this section. 235 The duration of an authorization to levy the assessment may not 236 exceed 5 years following the date of the approval of the levy 237 unless reauthorized pursuant to subsection (11). 238 (a) A referendum held under this section must be conducted 239 by the Bureau of Economic and Business Research at the 240 University of Florida by secret ballot in a manner prescribed by 241 the council and approved by the commission. The council may 242 solicit and accept contributions to fund costs incurred for the 243 referendum. 244 (b) Notice of a referendum to be held under this section 245 must be given by certified mail to each manufacturer at least 30 246 days before the referendum is held. 247 (c) Each manufacturer is entitled to at least one vote plus 248 one vote for every 10 machine cavities that are owned by the 249 manufacturer and located in this state 90 days before the date 250 of the referendum. However, a manufacturer may not have more 251 than four votes. Proof of identification of the manufacturing of 252 concrete masonry products and of the number of machine cavities 253 must be presented before voting. 254 (d) A simple majority vote shall determine any issue that 255 requires a referendum under this section. 256 (6) ADMINISTRATIVE POWERS AND DUTIES OF THE COUNCIL.— 257 (a) The council shall: 258 1. Receive and disburse funds, as prescribed elsewhere in 259 this section, to be used in administering and implementing this 260 section. 261 2. Maintain a permanent record of its business proceedings. 262 3. Maintain a permanent, detailed record of its financial 263 dealings. 264 4. Prepare, for review by the concrete masonry industry in 265 this state, periodic reports and an annual report for each 266 fiscal year of its activities, and file the annual report with 267 the commission. 268 5. Prepare, for review by the concrete masonry industry in 269 this state, periodic reports and an annual accounting for each 270 fiscal year of all receipts and expenditures, and retain a 271 certified public accountant for this purpose. 272 6. Appoint a licensed banking institution to serve as the 273 depository for program funds and handle disbursements of those 274 funds. 275 7. Maintain frequent communication with public officers at 276 the state and national levels, including the commission. 277 8. Maintain an office in this state. 278 (b) The council may: 279 1. Conduct or contract for scientific research with any 280 accredited university, college, or similar institution, and 281 enter into other contracts or agreements that will aid in 282 carrying out the purposes of this section, including contracts 283 for the purchase or acquisition of facilities or equipment 284 necessary to carry out the purposes of this section. 285 2. Disseminate reliable information benefiting the consumer 286 and the concrete masonry industry. 287 3. Provide to governmental bodies, on request, information 288 relating to subjects of concern to the concrete masonry 289 industry, and act jointly or in cooperation with the state or 290 Federal Government, and agencies thereof, in the development or 291 administration of programs that the council considers to be 292 consistent with the objectives of this section. 293 4. Sue and be sued as a council without individual 294 liability of the members for acts of the council when acting 295 within the scope of the powers of this section and in the manner 296 prescribed by the laws of this state. 297 5. Borrow from licensed lending institutions money in 298 amounts that are not cumulatively greater than 50 percent of the 299 council’s anticipated annual income. 300 6. Maintain a financial reserve for emergency use, the 301 total of which must not exceed 50 percent of the council’s 302 anticipated annual income. 303 7. Appoint advisory groups composed of representatives from 304 organizations, institutions, governments, or businesses related 305 to or interested in the welfare of the concrete masonry industry 306 and the end-use consumer. 307 8. Employ subordinate officers and employees of the 308 council, prescribe their duties, and fix their compensation and 309 terms of employment. 310 9. Cooperate with any local, state, regional, or nationwide 311 organization or agency engaged in work or activities consistent 312 with the objectives of the program. 313 10. Cause any duly authorized agent or representative to 314 enter upon the premises of any market agency, market agent, 315 collection agency, or manufacturer and examine or cause to be 316 examined by the authorized agent only books, papers, and records 317 that deal with the payment of the assessment provided for in 318 this section or with the enforcement of this section. 319 11. Do all other things necessary to further the intent of 320 this section which are not prohibited by law. 321 (7) ACCEPTANCE OF GRANTS AND GIFTS.—The council may accept 322 grants, donations, contributions, or gifts from any source if 323 the use of such resources is not restricted in any manner that 324 the council considers to be inconsistent with the objectives of 325 this section. 326 (8) PAYMENTS TO ORGANIZATIONS.— 327 (a) The council may make payments to other organizations 328 for work or services performed which are consistent with the 329 objectives of the program. 330 (b) Before making payments described in this subsection, 331 the council must secure a written agreement that the 332 organization receiving payment will: 333 1. Furnish at least annually, or more frequently on request 334 of the council, written or printed reports of program activities 335 and reports of financial data that are relative to the council’s 336 funding of such activities; and 337 2. Agree to have appropriate representatives attend 338 business meetings of the council as reasonably requested by the 339 chair of the council. 340 (c) The council may require adequate proof of security 341 bonding on the payments to any individual, business, or other 342 organization. 343 (9) COLLECTION OF MONEYS AT TIME OF SALE.— 344 (a) Each manufacturer shall assess from the purchaser, at 345 the time of sale by the manufacturer, the assessment levied by 346 the council. The amount of the assessment must be separately 347 stated on all receipts, invoices, or other evidence of sale as 348 the “Florida Building Sustainability Fee.” 349 (b) The manufacturer shall collect all such moneys and 350 forward them quarterly to the council, and the council shall 351 provide appropriate business forms for the convenience of the 352 collecting agent in executing this duty. 353 (c) The council shall maintain within its financial records 354 a separate accounting of all moneys received under this 355 subsection. The council shall provide for an annual financial 356 audit of its accounts and records to be conducted by an 357 independent certified public accountant pursuant to rules 358 adopted by the Auditor General under s. 11.45, Florida Statutes. 359 (d) The assessment is due and payable upon the sale of 360 concrete masonry units that are produced in this state, 361 regardless of the location of the purchaser. The assessment 362 constitutes a personal debt of the manufacturer of concrete 363 masonry units who collects the assessment or who otherwise owes 364 the assessment. If a manufacturer fails to remit any properly 365 due assessment, the council may bring a civil action against the 366 manufacturer in the circuit court of any county for the 367 collection thereof, and may add a penalty in the amount of 10 368 percent of the assessment owed, the cost of enforcing the 369 collection of the assessment, court costs, and reasonable 370 attorney’s fees. The action shall be tried and judgment rendered 371 as in any other cause of action for debts due and payable. All 372 assessments, penalties, and enforcement costs are due and 373 payable to the council. 374 (10) VOTE ON CONTINUING THE ASSESSMENT.—Upon the delivery 375 by certified mail to the council of petitions that represent at 376 least 25 percent of the votes allocated under subsection (5) and 377 that ask, “Shall the assessment authorized by the Concrete 378 Masonry Products Research, Education, and Promotion Act 379 continue?” the council shall, within 90 days after the receipt 380 of the petitions, conduct a referendum to determine whether a 381 majority of the votes cast in the referendum support the 382 continuation of the Concrete Masonry Products Research, 383 Education, and Promotion Act. All signatures must be collected 384 within a 12-month period. A referendum held under this 385 subsection may not be held more than one time in a 3-year 386 period. Before each referendum, votes shall be reallocated using 387 the method described in subsection (5). 388 (11) BYLAWS.—The council shall, by September 30, 2012, 389 adopt bylaws to carry out the intents and purposes of this 390 section. These bylaws may be amended upon 30-days’ notice to 391 board members at any regular or special meeting called for this 392 purpose. The bylaws must conform to the requirements of this 393 section but may also address any matter not in conflict with the 394 general laws of this state. 395 Section 2. This act shall take effect July 1, 2012.