Legal Report, January 2016
General Counsel, Jennifer G. Ashton
1. Jeffrey Marcus Gray vs. Lutheran Social Services of Northeast Florida, Inc. (LSS); Case No. 1D14-5793 of the Florida First District Court of Appeal. Public Records - UPDATE
The full details of this case are contained in the January 2015 Legal Report. In this case, the trial court ruled that the means utilized by Gray to seek records from LSS constituted a flagrant abuse of Chapter 119 and were designed to ambush unsuspecting private entities. The trial court denied Gray’s complaint, which sought attorney’s fees and costs. Gray filed an appeal with the First District Court of Appeal. On December 16, 2015, the First District issued a Per Curiam Affirmed Order, which upheld the trial court’s order.
2. INFORMAL Attorney General Opinion—December 1, 2015. Sunshine Law.
The Florida Office of the Attorney General recently provided an informal opinion summarizing when it is appropriate for officials to appear at a public meeting by electronic means. The Office stated as follows: “This office has determined that a member of a board or commission may attend a meeting [by electronic means] under certain extraordinary circumstances, but that a quorum of the board or commission must physically be present in order to carry out official business. The physical presence of a quorum has not been required where electronic media technology is used to allow public access and participation at workshop meetings where no formal action will be taken. At workshops and special meetings where no formal action will be taken, this office has found that electronic media technology may be used. The board or commission, however, must be vigilant in adhering to the requirements of the Sunshine Law and ensure that the meetings or workshops using electronic media technology are not forums to undertake formal decision making.”
3. HB 7059.—Standardized local election dates. UPDATE
Representative Caldwell has filed HB 7059 to standardize various local government election dates in Florida. The Florida League of Cities has summarized the proposal as follows: “HB 7059(Affairs, Caldwell) expressly preempts to the state the authority to establish the dates of elections of municipal officers. Any state law, municipal charter or municipal ordinance that conflicts with the bill is superseded to the extent of the conflict. Under the bill, municipalities have two options for establishing their election date. The first option requires the municipal election to be held on the same date as the general election in November of each even-numbered year or on the first Tuesday after the first Monday in November of each odd-numbered year, or both, as determined by the supervisor of elections. The second option allows a municipality to deviate from the general election requirement to a date of its choosing, but only if all cities within a county agree to the deviation and conduct their election on that date. The bill provides that the terms of incumbent elected municipal officers affected by the change in election dates will be extended to the next municipal election. HB 7059 is in the House Local and Federal Affairs Committee.” The Florida League of Cities is opposed to this legislation given that it preempts local government flexibility and control.
4. HB 461 and SB 416.—Relocation of Utilities Within Public Easements
The Florida Legislature is considering multiple unfunded mandates this session. One of these mandates is contained in HB 461 (Ingram) and SB 416 (Flores). These bills require that local governments, and not the utilities, bear the cost of relocating a utility’s equipment if such equipment is located within a public utility easement. HB 461 is in the House Appropriations Committee, its final stop. SB 416 is awaiting action by the full Senate. The Florida League of Cities is opposed to this legislation given that it creates an unfunded mandate on local governments.
5. HB 1021 and SB 1220.—Public Records/Attorney Fees
HB 1021 (Steube) and SB 1220 (Garcia) allow a judge to review the facts of a public records lawsuit to determine whether attorney’s fees should be awarded to the plaintiff. Current public records laws require that attorney’s fees be awarded to the plaintiff as a matter of right when a public agency is found to have violated the public records law. The bills also require that plaintiffs provide written notice to the agency’s records custodian at least five business days before filing a lawsuit in order to be eligible to receive attorney’s fees in a public records lawsuit. HB 1021 is in the House Government Operations Subcommittee, and SB 1220 is in the Senate Governmental Oversight and Accountability Committee. The Florida League of Cities supports this proposed legislation.
6. Vacation Rentals—Multiple Bills
There are multiple bills relating to vacation rentals this year. The Florida League of Cities is supporting these bills. They are:
- HB 1287 (Moraitis) and SB 1568 (Altman) require each vacation rental property to be licensed instead of current law that allows for multiple properties to be registered under the same license. The bills further require vacation rentals to register with the Department of Business and Professional Regulation (DBPR) for purposes of collecting and remitting sales tax, and to provide evidence to DBPR that they have registered with the county tax collector for remitting any tourist development taxes, that they comply with the fire code, and that they have received all applicable local licenses. The bills further give DBPR authority to take disciplinary action against vacation rentals that do not comply including, but not limited to, suspending licenses. HB 1287 is awaiting committee references. SB 1568 is in the Senate Regulated Industries Committee.
- SB 348 (Altman) revises current law to allow local governments to adopt ordinances establishing up to a seven-day minimum stay requirement for vacation rentals. The bill also permits grandfathered communities to amend ordinances adopted before June 1, 2011. SB 348 is in the Senate Regulated Industries Committee.
- HB 4045 (Richardson) and SB 1598 (Margolis) repeal the preemption currently preventing local governments from regulating duration, frequency or location of vacation rentals. HB 4045 is in the House Business and Professions Subcommittee. SB 1598 is in the Senate Regulated Industries Committee.
- SB 1158 (Latvala) and HB 1295 (Trumbull) require a person engaged in leasing or renting a vacation rental to display a valid registration number in a rental listing or any advertisement of the property. The bills put in place penalties for failing to comply. SB 1158 requires the Department of Revenue, and counties in some instances, to create an amnesty program for persons who have rented vacation rentals and failed to remit taxes for these rentals. SB 1158 is in the Senate Commerce and Tourism Committee. HB 1295 is awaiting committee references.