Bill Text: FL H0063 | 2011 | Regular Session | Engrossed


Bill Title: Public Lodging and Food Service Establishments

Spectrum: Slight Partisan Bill (Republican 5-1-1)

Status: (Engrossed - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H0063 Detail]

Download: Florida-2011-H0063-Engrossed.html
CS/HB 63

1
A bill to be entitled
2An act relating to public lodging and food service
3establishments; providing a short title; amending s.
4509.144, F.S.; revising definitions; providing additional
5penalties for the offense of unlawfully distributing
6handbills in a public lodging establishment; specifying
7that certain items used in committing such offense are
8subject to seizure and forfeiture under the Florida
9Contraband Forfeiture Act; creating s. 901.1503, F.S.;
10authorizing a law enforcement officer to give a notice to
11appear to a person without a warrant when there is
12probable cause to believe the person violated s. 509.144,
13F.S., and the owner or manager of the public lodging
14establishment and one additional affiant sign an affidavit
15containing information supporting the determination of
16probable cause; amending s. 932.701, F.S.; revising the
17definition of the term "contraband article"; amending s.
18509.013, F.S.; excluding nonprofit organizations operating
19facilities providing certain housing from the definition
20of the term "public lodging establishment"; amending s.
21509.032, F.S.; conforming provisions to changes made by
22the act; revising authority preempted to the state with
23regard to regulation of public lodging establishments and
24public food service establishments; prohibiting local
25governments from regulating, restricting, or prohibiting
26vacation rentals based solely on their classification,
27use, or occupancy; providing exceptions; amending ss.
28509.221 and 509.241, F.S.; conforming provisions to
29changes made by the act; amending s. 509.242, F.S.;
30providing that public lodging establishments formerly
31classified as resort condominiums and resort dwellings are
32classified as vacation rentals; defining the term
33"vacation rental"; amending s. 509.251, F.S.; conforming
34provisions to changes made by the act; amending s.
35509.261, F.S.; revising penalties for operating a public
36lodging establishment or public food service establishment
37without a valid license; amending s. 509.291, F.S.;
38revising membership of the advisory council of the
39Division of Hotels and Restaurants of the Department of
40Business and Professional Regulation; requiring the
41Florida Vacation Rental Managers Association to designate
42a member to serve on the advisory council; amending ss.
43381.008 and 386.203, F.S.; conforming provisions to
44changes made by the act; providing that specified portions
45of this act do not affect or impede specified statutory
46provisions or any protection or right guaranteed by the
47Second Amendment to the United States Constitution;
48providing effective dates.
49
50Be It Enacted by the Legislature of the State of Florida:
51
52     Section 1.  This act may be cited as the "Tourist Safety
53Act of 2011."
54     Section 2.  Section 509.144, Florida Statutes, is amended
55to read:
56     509.144  Prohibited handbill distribution in a public
57lodging establishment; penalties.-
58     (1)  As used in this section, the term:
59     (a)  "Handbill" means a flier, leaflet, pamphlet, or other
60written material that advertises, promotes, or informs persons
61about a person an individual, business, company, or food service
62establishment, but does shall not include employee
63communications permissible under the National Labor Relations
64Act, other communications protected by the First Amendment to
65the United States Constitution, or communications that relate to
66the public health, safety, or welfare that are distributed by a
67federal, state, or local governmental entity or a public or
68private utility.
69     (b)  "Without permission" means without the expressed
70written or oral permission of the owner, manager, or agent of
71the owner or manager of the public lodging establishment where a
72sign is posted prohibiting advertising or solicitation in the
73manner provided in subsection (5) (4).
74     (c)  "At or in a public lodging establishment" means any
75property under the sole ownership or control of a public lodging
76establishment.
77     (2)  Any person individual, agent, contractor, or volunteer
78who is acting on behalf of a person an individual, business,
79company, or food service establishment and who, without
80permission, delivers, distributes, or places, or attempts to
81deliver, distribute, or place, a handbill at or in a public
82lodging establishment commits a misdemeanor of the first degree,
83punishable as provided in s. 775.082 or s. 775.083.
84     (3)  Any person who, without permission, directs another
85person to deliver, distribute, or place, or attempts to deliver,
86distribute, or place, a handbill at or in a public lodging
87establishment commits a misdemeanor of the first degree,
88punishable as provided in s. 775.082 or s. 775.083. Any person
89sentenced under this subsection shall be ordered to pay a
90minimum fine of $500 in addition to any other penalty imposed by
91the court.
92     (4)  In addition to any other penalty imposed by the court,
93a person who violates subsection (2) or subsection (3):
94     (a)  A second time shall be ordered to pay a minimum fine
95of $2,000.
96     (b)  A third or subsequent time shall be ordered to pay a
97minimum fine of $3,000.
98     (5)(4)  For purposes of this section, a public lodging
99establishment that intends to prohibit advertising or
100solicitation, as described in this section, at or in such
101establishment must comply with the following requirements when
102posting a sign prohibiting such solicitation or advertising:
103     (a)  There must appear prominently on any sign referred to
104in this subsection, in letters of not less than 2 inches in
105height, the terms "no advertising" or "no solicitation" or terms
106that indicate the same meaning.
107     (b)  The sign must be posted conspicuously.
108     (c)  If the main office of the public lodging establishment
109is immediately accessible by entering the office through a door
110from a street, parking lot, grounds, or other area outside such
111establishment, the sign must be placed on a part of the main
112office, such as a door or window, and the sign must face the
113street, parking lot, grounds, or other area outside such
114establishment.
115     (d)  If the main office of the public lodging establishment
116is not immediately accessible by entering the office through a
117door from a street, parking lot, grounds, or other area outside
118such establishment, the sign must be placed in the immediate
119vicinity of the main entrance to such establishment, and the
120sign must face the street, parking lot, grounds, or other area
121outside such establishment.
122     (6)  Any personal property, including, but not limited to,
123any vehicle of any kind, item, object, tool, device, weapon,
124machine, money, security, book, or record, that is used or
125attempted to be used as an instrumentality in the commission of,
126or in aiding and abetting in the commission of, a person's third
127or subsequent violation of this section, whether or not
128comprising an element of the offense, is subject to seizure and
129forfeiture under the Florida Contraband Forfeiture Act.
130     Section 3.  Section 901.1503, Florida Statutes, is created
131to read:
132     901.1503  When notice to appear by officer without warrant
133is lawful.-A law enforcement officer may give a notice to appear
134to a person without a warrant when the officer has determined
135that he or she has probable cause to believe that a violation of
136s. 509.144 has been committed and the owner or manager of the
137public lodging establishment in which the violation occurred and
138one additional affiant sign an affidavit containing information
139that supports the officer's determination of probable cause.
140     Section 4.  Paragraph (a) of subsection (2) of section
141932.701, Florida Statutes, is amended to read:
142     932.701  Short title; definitions.-
143     (2)  As used in the Florida Contraband Forfeiture Act:
144     (a)  "Contraband article" means:
145     1.  Any controlled substance as defined in chapter 893 or
146any substance, device, paraphernalia, or currency or other means
147of exchange that was used, was attempted to be used, or was
148intended to be used in violation of any provision of chapter
149893, if the totality of the facts presented by the state is
150clearly sufficient to meet the state's burden of establishing
151probable cause to believe that a nexus exists between the
152article seized and the narcotics activity, whether or not the
153use of the contraband article can be traced to a specific
154narcotics transaction.
155     2.  Any gambling paraphernalia, lottery tickets, money,
156currency, or other means of exchange which was used, was
157attempted, or intended to be used in violation of the gambling
158laws of the state.
159     3.  Any equipment, liquid or solid, which was being used,
160is being used, was attempted to be used, or intended to be used
161in violation of the beverage or tobacco laws of the state.
162     4.  Any motor fuel upon which the motor fuel tax has not
163been paid as required by law.
164     5.  Any personal property, including, but not limited to,
165any vessel, aircraft, item, object, tool, substance, device,
166weapon, machine, vehicle of any kind, money, securities, books,
167records, research, negotiable instruments, or currency, which
168was used or was attempted to be used as an instrumentality in
169the commission of, or in aiding or abetting in the commission
170of, any felony, whether or not comprising an element of the
171felony, or which is acquired by proceeds obtained as a result of
172a violation of the Florida Contraband Forfeiture Act.
173     6.  Any real property, including any right, title,
174leasehold, or other interest in the whole of any lot or tract of
175land, which was used, is being used, or was attempted to be used
176as an instrumentality in the commission of, or in aiding or
177abetting in the commission of, any felony, or which is acquired
178by proceeds obtained as a result of a violation of the Florida
179Contraband Forfeiture Act.
180     7.  Any personal property, including, but not limited to,
181equipment, money, securities, books, records, research,
182negotiable instruments, currency, or any vessel, aircraft, item,
183object, tool, substance, device, weapon, machine, or vehicle of
184any kind in the possession of or belonging to any person who
185takes aquaculture products in violation of s. 812.014(2)(c).
186     8.  Any motor vehicle offered for sale in violation of s.
187320.28.
188     9.  Any motor vehicle used during the course of committing
189an offense in violation of s. 322.34(9)(a).
190     10.  Any photograph, film, or other recorded image,
191including an image recorded on videotape, a compact disc,
192digital tape, or fixed disk, that is recorded in violation of s.
193810.145 and is possessed for the purpose of amusement,
194entertainment, sexual arousal, gratification, or profit, or for
195the purpose of degrading or abusing another person.
196     11.  Any real property, including any right, title,
197leasehold, or other interest in the whole of any lot or tract of
198land, which is acquired by proceeds obtained as a result of
199Medicaid fraud under s. 409.920 or s. 409.9201; any personal
200property, including, but not limited to, equipment, money,
201securities, books, records, research, negotiable instruments, or
202currency; or any vessel, aircraft, item, object, tool,
203substance, device, weapon, machine, or vehicle of any kind in
204the possession of or belonging to any person which is acquired
205by proceeds obtained as a result of Medicaid fraud under s.
206409.920 or s. 409.9201.
207     12.  Any personal property, including, but not limited to,
208any vehicle of any kind, item, object, tool, device, weapon,
209machine, money, security, book, or record, that is used or
210attempted to be used as an instrumentality in the commission of,
211or in aiding and abetting in the commission of, a person's third
212or subsequent violation of s. 509.144, whether or not comprising
213an element of the offense.
214     Section 5.  Paragraph (b) of subsection (4) of section
215509.013, Florida Statutes, is amended to read:
216     509.013  Definitions.-As used in this chapter, the term:
217     (4)
218     (b)  The following are excluded from the definitions in
219paragraph (a):
220     1.  Any dormitory or other living or sleeping facility
221maintained by a public or private school, college, or university
222for the use of students, faculty, or visitors;
223     2.  Any facility certified or licensed and regulated by the
224Agency for Health Care Administration or the Department of
225Children and Family Services or other similar place regulated
226under s. 381.0072;
227     3.  Any place renting four rental units or less, unless the
228rental units are advertised or held out to the public to be
229places that are regularly rented to transients;
230     4.  Any unit or group of units in a condominium,
231cooperative, or timeshare plan and any individually or
232collectively owned one-family, two-family, three-family, or
233four-family dwelling house or dwelling unit that is rented for
234periods of at least 30 days or 1 calendar month, whichever is
235less, and that is not advertised or held out to the public as a
236place regularly rented for periods of less than 1 calendar
237month, provided that no more than four rental units within a
238single complex of buildings are available for rent;
239     5.  Any migrant labor camp or residential migrant housing
240permitted by the Department of Health; under ss. 381.008-
241381.00895; and
242     6.  Any establishment inspected by the Department of Health
243and regulated by chapter 513; and
244     7.  Any nonprofit organization that operates a facility
245providing housing only to patients, patients' families, and
246patients' caregivers and not to the general public.
247     Section 6.  Effective upon this act becoming a law,
248paragraph (a) of subsection (2) and subsection (7) of section
249509.032, Florida Statutes, are amended to read:
250     509.032  Duties.-
251     (2)  INSPECTION OF PREMISES.-
252     (a)  The division has responsibility and jurisdiction for
253all inspections required by this chapter. The division has
254responsibility for quality assurance. Each licensed
255establishment shall be inspected at least biannually, except for
256transient and nontransient apartments, which shall be inspected
257at least annually, and shall be inspected at such other times as
258the division determines is necessary to ensure the public's
259health, safety, and welfare. The division shall establish a
260system to determine inspection frequency. Public lodging units
261classified as vacation rentals resort condominiums or resort
262dwellings are not subject to this requirement, but shall be made
263available to the division upon request. If, during the
264inspection of a public lodging establishment classified for
265renting to transient or nontransient tenants, an inspector
266identifies vulnerable adults who appear to be victims of
267neglect, as defined in s. 415.102, or, in the case of a building
268that is not equipped with automatic sprinkler systems, tenants
269or clients who may be unable to self-preserve in an emergency,
270the division shall convene meetings with the following agencies
271as appropriate to the individual situation: the Department of
272Health, the Department of Elderly Affairs, the area agency on
273aging, the local fire marshal, the landlord and affected tenants
274and clients, and other relevant organizations, to develop a plan
275which improves the prospects for safety of affected residents
276and, if necessary, identifies alternative living arrangements
277such as facilities licensed under part II of chapter 400 or
278under chapter 429.
279     (7)  PREEMPTION AUTHORITY.-
280     (a)  The regulation of public lodging establishments and
281public food service establishments, including, but not limited
282to, the inspection of public lodging establishments and public
283food service establishments for compliance with the sanitation
284standards, inspections, adopted under this section, and the
285regulation of food safety protection standards for required
286training and testing of food service establishment personnel,
287and matters related to the nutritional content and marketing of
288foods offered in such establishments, is are preempted to the
289state. This paragraph subsection does not preempt the authority
290of a local government or local enforcement district to conduct
291inspections of public lodging and public food service
292establishments for compliance with the Florida Building Code and
293the Florida Fire Prevention Code, pursuant to ss. 553.80 and
294633.022.
295     (b)  A local law, ordinance, or regulation may not restrict
296the use of vacation rentals, prohibit vacation rentals, or
297regulate vacation rentals based solely on their classification,
298use, or occupancy. This paragraph does not apply to any local
299law, ordinance, or regulation adopted on or before June 1, 2011.
300     (c)  Paragraph (b) does not apply to any local law,
301ordinance, or regulation exclusively relating to property
302valuation as a criterion for vacation rental if the local law,
303ordinance, or regulation is required to be approved by the
304Department of Community Affairs pursuant to an area of critical
305state concern designation.
306     Section 7.  Effective upon this act becoming a law,
307subsection (9) of section 509.221, Florida Statutes, is amended
308to read:
309     509.221  Sanitary regulations.-
310     (9)  Subsections (2), (5), and (6) do not apply to any
311facility or unit classified as a vacation rental or resort
312condominium, nontransient apartment, or resort dwelling as
313described in s. 509.242(1)(c) and, (d), and (g).
314     Section 8.  Effective upon this act becoming a law,
315subsection (2) of section 509.241, Florida Statutes, is amended
316to read:
317     509.241  Licenses required; exceptions.-
318     (2)  APPLICATION FOR LICENSE.-Each person who plans to open
319a public lodging establishment or a public food service
320establishment shall apply for and receive a license from the
321division prior to the commencement of operation. A condominium
322association, as defined in s. 718.103, which does not own any
323units classified as vacation rentals resort condominiums under
324s. 509.242(1)(c) is shall not be required to apply for or
325receive a public lodging establishment license.
326     Section 9.  Effective upon this act becoming a law,
327subsection (1) of section 509.242, Florida Statutes, is amended
328to read:
329     509.242  Public lodging establishments; classifications.-
330     (1)  A public lodging establishment shall be classified as
331a hotel, motel, resort condominium, nontransient apartment,
332transient apartment, roominghouse, bed and breakfast inn, or
333vacation rental resort dwelling if the establishment satisfies
334the following criteria:
335     (a)  Hotel.-A hotel is any public lodging establishment
336containing sleeping room accommodations for 25 or more guests
337and providing the services generally provided by a hotel and
338recognized as a hotel in the community in which it is situated
339or by the industry.
340     (b)  Motel.-A motel is any public lodging establishment
341which offers rental units with an exit to the outside of each
342rental unit, daily or weekly rates, offstreet parking for each
343unit, a central office on the property with specified hours of
344operation, a bathroom or connecting bathroom for each rental
345unit, and at least six rental units, and which is recognized as
346a motel in the community in which it is situated or by the
347industry.
348     (c)  Vacation rental Resort condominium.-A vacation rental
349resort condominium is any unit or group of units in a
350condominium, cooperative, or timeshare plan or any individually
351or collectively owned single-family, two-family, or four-family
352house or dwelling unit that is also a transient public lodging
353establishment which is rented more than three times in a
354calendar year for periods of less than 30 days or 1 calendar
355month, whichever is less, or which is advertised or held out to
356the public as a place regularly rented for periods of less than
35730 days or 1 calendar month, whichever is less.
358     (d)  Nontransient apartment or roominghouse.-A nontransient
359apartment or roominghouse is a building or complex of buildings
360in which 75 percent or more of the units are available for rent
361to nontransient tenants.
362     (e)  Transient apartment or roominghouse.-A transient
363apartment or roominghouse is a building or complex of buildings
364in which more than 25 percent of the units are advertised or
365held out to the public as available for transient occupancy.
366     (f)  Roominghouse.-A roominghouse is any public lodging
367establishment that may not be classified as a hotel, motel,
368resort condominium, nontransient apartment, bed and breakfast
369inn, vacation rental, or transient apartment under this section.
370A roominghouse includes, but is not limited to, a boardinghouse.
371     (g)  Resort dwelling.-A resort dwelling is any individually
372or collectively owned one-family, two-family, three-family, or
373four-family dwelling house or dwelling unit which is rented more
374than three times in a calendar year for periods of less than 30
375days or 1 calendar month, whichever is less, or which is
376advertised or held out to the public as a place regularly rented
377for periods of less than 30 days or 1 calendar month, whichever
378is less.
379     (g)(h)  Bed and breakfast inn.-A bed and breakfast inn is a
380family home structure, with no more than 15 sleeping rooms,
381which has been modified to serve as a transient public lodging
382establishment, which provides the accommodation and meal
383services generally offered by a bed and breakfast inn, and which
384is recognized as a bed and breakfast inn in the community in
385which it is situated or by the hospitality industry.
386     Section 10.  Effective upon this act becoming a law,
387subsection (1) of section 509.251, Florida Statutes, is amended
388to read:
389     509.251  License fees.-
390     (1)  The division shall adopt, by rule, a schedule of fees
391to be paid by each public lodging establishment as a
392prerequisite to issuance or renewal of a license. Such fees
393shall be based on the number of rental units in the
394establishment. The aggregate fee per establishment charged any
395public lodging establishment shall not exceed $1,000; however,
396the fees described in paragraphs (a) and (b) may not be included
397as part of the aggregate fee subject to this cap. Vacation
398rental Resort condominium units within separate buildings or at
399separate locations but managed by one licensed agent may be
400combined in a single license application, and the division shall
401charge a license fee as if all units in the application are in a
402single licensed establishment. Resort dwelling units may be
403licensed in the same manner as condominium units. The fee
404schedule shall require an establishment which applies for an
405initial license to pay the full license fee if application is
406made during the annual renewal period or more than 6 months
407prior to the next such renewal period and one-half of the fee if
408application is made 6 months or less prior to such period. The
409fee schedule shall include fees collected for the purpose of
410funding the Hospitality Education Program, pursuant to s.
411509.302, which are payable in full for each application
412regardless of when the application is submitted.
413     (a)  Upon making initial application or an application for
414change of ownership, the applicant shall pay to the division a
415fee as prescribed by rule, not to exceed $50, in addition to any
416other fees required by law, which shall cover all costs
417associated with initiating regulation of the establishment.
418     (b)  A license renewal filed with the division within 30
419days after the expiration date shall be accompanied by a
420delinquent fee as prescribed by rule, not to exceed $50, in
421addition to the renewal fee and any other fees required by law.
422A license renewal filed with the division more than 30 but not
423more than 60 days after the expiration date shall be accompanied
424by a delinquent fee as prescribed by rule, not to exceed $100,
425in addition to the renewal fee and any other fees required by
426law.
427     Section 11.  Effective upon this act becoming a law,
428subsection (1) of section 509.261, Florida Statutes, is amended
429to read:
430     509.261  Revocation or suspension of licenses; fines;
431procedure.-
432     (1)  Any public lodging establishment or public food
433service establishment that has operated or is operating in
434violation of this chapter or the rules of the division,
435operating without a license, or operating with a suspended or
436revoked license may be subject by the division to:
437     (a)  Fines not to exceed $1,000 per offense;
438     (b)  Mandatory completion attendance, at personal expense,
439of a remedial at an educational program administered sponsored
440by a food safety training program provider whose program has
441been approved by the division, as provided in s. 509.049 the
442Hospitality Education Program; and
443     (c)  The suspension, revocation, or refusal of a license
444issued pursuant to this chapter.
445     Section 12.  Effective upon this act becoming a law,
446subsection (1) of section 509.291, Florida Statutes, is amended
447to read:
448     509.291  Advisory council.-
449     (1)  There is created a 10-member advisory council.
450     (a)  The Secretary of Business and Professional Regulation
451shall appoint six seven voting members to the advisory council.
452Each member appointed by the secretary must be an operator of an
453establishment licensed under this chapter and shall represent
454the industries regulated by the division, except that one member
455appointed by the secretary must be a layperson representing the
456general public and one member must be a hospitality education
457administrator from an institution of higher education of this
458state. Such members of the council shall serve staggered terms
459of 4 years.
460     (b)  The Florida Restaurant and Lodging Association shall
461designate one representative to serve as a voting member of the
462council. The Florida Vacation Rental Managers Association shall
463designate one representative to serve as a voting member of the
464council. The Florida Apartment Association and the Florida
465Association of Realtors shall each designate one representative
466to serve as a voting member of the council.
467     (c)  Any member who fails to attend three consecutive
468council meetings without good cause may be removed from the
469council by the secretary.
470     Section 13.  Effective upon this act becoming a law,
471paragraph (c) of subsection (8) of section 381.008, Florida
472Statutes, is amended to read:
473     381.008  Definitions of terms used in ss. 381.008-
474381.00897.-As used in ss. 381.008-381.00897, the following words
475and phrases mean:
476     (8)  "Residential migrant housing"-A building, structure,
477mobile home, barracks, or dormitory, and any combination thereof
478on adjacent property which is under the same ownership,
479management, or control, and the land appertaining thereto, that
480is rented or reserved for occupancy by five or more seasonal or
481migrant farmworkers, except:
482     (c)  A hotel, or motel, or resort condominium, as described
483defined in chapter 509, that is furnished for transient
484occupancy.
485     Section 14.  Effective upon this act becoming a law,
486subsection (4) of section 386.203, Florida Statutes, is amended
487to read:
488     386.203  Definitions.-As used in this part:
489     (4)  "Designated smoking guest rooms at public lodging
490establishments" means the sleeping rooms and directly associated
491private areas, such as bathrooms, living rooms, and kitchen
492areas, if any, rented to guests for their exclusive transient
493occupancy in public lodging establishments, including hotels,
494motels, vacation rentals resort condominiums, transient
495apartments, transient lodging establishments, rooming houses,
496boarding houses, resort dwellings, bed and breakfast inns, and
497the like; and designated by the person or persons having
498management authority over such public lodging establishment as
499rooms in which smoking may be permitted.
500     Section 15.  The amendments to ss. 509.144 and 932.701,
501Florida Statutes, and the creation of s. 901.1503, Florida
502Statutes, by this act do not affect or impede the provisions of
503s. 790.251, Florida Statutes, or any other protection or right
504guaranteed by the Second Amendment to the United States
505Constitution.
506     Section 16.  Except as otherwise expressly provided in this
507act and except for this section, which shall take effect upon
508this act becoming a law, this act shall take effect October 1,
5092011.


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