This week Congress passed another COVID-19 relief package, The American Rescue Plan Act of 2021, at a cost of $1.9 trillion. The relief act will provide another round of stimulus checks to individuals and families, extend federal supplemental unemployment benefits, provide more funding for state and local governments, expand subsidies for healthcare insurance, and provide additional funding for COVID-19 testing, vaccination, and treatment, among a slew of other provisions that will affect many industries, businesses, and individuals.

The Buchanan Ingersoll & Rooney (BIR) Federal Government Relations (GR) Team has put together an analysis of the bill by issue area, outlining provisions of the legislation and dollar amounts in each area. As the bill is implemented through federal agency rulemaking and regulatory process, our BIR Federal GR Team will provide additional guidance and be available to assist as necessary. Click here for a summary of the bill and please contact Michael Strazzella, federal GR group leader, with any questions or for assistance.

Bill Action

Taxes and Incentives
HB 15 Sales and Use requires marketplace providers and out-of-state retailers with no physical presence in Florida to collect Florida’s sales tax on sales of taxable items delivered to purchasers in Florida if the marketplace provider or out-of-state retailer makes a substantial number of sales into Florida. A substantial number of remote sales means conducting 200 or more retail sales during the previous calendar year or conducting any number of retail sales in an amount exceeding $100,000 during the previous calendar year. The Revenue Estimating Conference determined that the bill will increase General Revenue Fund receipts by $973.6 million ($1,079.7 million recurring) in Fiscal Year 2021-2022. Local government revenues are estimated to increase by $229.5 million ($253.7 million recurring) in Fiscal Year 2021-2022. HB 15 passed the House Ways & Means Committee and has one more stop remaining.

SB 598 Back-to-school Sales Tax Holiday establishes a 10-day “back-to-school” sales tax holiday from Friday, July 30 to Sunday, August 8, 2021, for certain clothing, school supplies, personal computers, and personal computer-related accessories. The bill takes effect upon becoming law. SB 598 passed the Senate Finance and Tax Committee and has one reference remaining.

Transportation
SB 138 Electric Vehicles directs the Florida Department of Transportation (FDOT) to establish the Electric Vehicle Infrastructure (EVI) Grant Program to provide financial assistance to encourage the installation of publicly-available electric vehicle charging infrastructure on public or private property. 

The bill:

  • Allocates certain increased license tax revenues from registration of electric and hybrid vehicles to the State Transportation Trust Fund (STTF) and requires the FDOT to use the revenues to fund the EVI Grant Program for specified years.
  • Appropriates $5 million in nonrecurring funds from the STTF to the FDOT to implement the EVI Grant Program.
  • Prohibits rules of the Department of Agriculture and Consumer Services from adopting rules that require specific methods of sale for electric vehicle charging equipment used in, and services provide in, this state.
  • Revises the FDOT’s prevailing principle relating to mobility to include improvement of travel choices to ensure mobility includes planning and establishment of infrastructure for innovative technologies, including electric vehicle charging infrastructure.
  • Revises the definition of “personal delivery device” (PDD) to provide that a PDD has a weight that does not exceed the maximum weight established by the FDOT and, if the FDOT establishes by rule a maximum speed for a PDD, to provide that a PDD has a speed that does not exceed that maximum.

SB 140 Electric Vehicle Fees imposes flat fees by weight, in addition to existing license taxes, for electric vehicles beginning July 1, 2021, and increasing January 1, 2025. The bill likewise imposes an additional flat fee for plug-in hybrid electric vehicles, which also increases on January 1, 2025. These fees are contingent upon passage of a linked bill, SB 138, which in part creates the Electric Vehicle Infrastructure (EVI) Grant Program within the Florida Department of Transportation (FDOT) to provide financial assistance to encourage the installation of publicly available electric vehicle charging infrastructure on public or private property. This bill requires the additional flat fees it imposes to be deposited into the State Transportation Trust Fund (STTF) to be used in part to fund the grant program. Both SB 138 and SB 140 passed the Senate Transportation Committee and each bill have two committee stops remaining.

SB 426 Preemption of Seaport Regulations prohibits a local government from restricting or regulating commerce in Florida’s deepwater seaports. The prohibition applies, but is not limited, to regulating or restricting a vessel’s type or size, source or type of cargo, or number, origin, or nationality of passengers. The bill expressly preempts all such matters to the state. The bill further provides that if not otherwise preempted by federal or state law, the new section does not limit the authority of a port authority, port district, or port operation to:

  • Regulate vessel movements within its jurisdiction,
  • Establish fees and compensation for its services, or
  • Adopt guidelines for minimum bottom clearance, for the movement of vessels, and for radio communications of vessel traffic.

The bill also provides that such actions, however, may not have the effect of regulating or restricting a vessel’s type or size, source or type of cargo, or number, origin, or nationality of passengers, except as required to ensure safety due to the physical limitations of channels, berths, anchorages, or other port facilities. Lastly, the bill voids any provisions of a county or municipal charter, ordinance, resolution, regulation, or policy preempted by the act and that existed before, on, or after the date the bill becomes law. SB 426 passed the Senate Transportation committee and has two references remaining.

SB 518 Use of Drones by a Government Agency provides an additional exception to the statutory ban on certain uses of drones by law enforcement agencies, fire departments, state agencies, and political subdivisions of the state. Currently, s. 934.50, F.S., prohibits a:

  • Law enforcement agency from using a drone to gather evidence or other information.
  • Person, or state or local entity, from using a drone to capture images of private property in violation of a person’s reasonable expectation of privacy.

However, these prohibitions are subject to exceptions, and the bill adds an exception. Specifically, under the bill, s. 943.50, F.S., no longer prohibits a state agency or political subdivision to use a drone for the assessment of damage due to a hurricane, a flood, a wildfire, or any other natural disaster. SB 518 passed the Senate Military and Veterans Affairs, Space, and Domestic Security Committee and has two reference remaining.
 
SB 1620 Autonomous Vehicles defines the term “low-speed autonomous delivery vehicle” as a fully autonomous vehicle that meets the current federal definition. The bill authorizes such vehicles to operate only on streets or roads where the posted speed limit is 35 miles per hour or less but are not prohibited from crossing a road or street at an intersection where the road or street has a posted speed limit of more than 35 miles per hour. A low-speed autonomous delivery vehicle may operate on a street or road with a posted speed limit of more than 35 miles per hour, but no more than 45 miles per hour, under certain conditions. SB 1620 passed the Senate Transportation Committee and has two stops remaining.

Higher Education
SB 259 Safety of Religious Institutions; unless exempted, a person may not carry a concealed firearm or weapon in public without a license issued by the Department of Agriculture and Consumer Services. However, licensees may not carry a concealed firearm in certain locations, including schools and colleges. Florida law criminalizes possession of a firearm on school property by a non-licensee as a third degree felony, punishable by up to five years imprisonment and a $5,000 fine. Possession of a firearm on school property by a licensee is a second degree misdemeanor, punishable by up to 60 days in jail and a $500 fine. Florida law does not generally prohibit a licensee from carrying a concealed firearm or weapon in a church, synagogue, or other religious institution. However, because many places of worship are located on the same property or attached to a school, often a preschool or college, carrying a firearm or weapon on the premises is a crime. HB 259 authorizes a licensee to carry a concealed firearm for any lawful purpose, including safety, security, and personal protection, on any property owned, rented, leased, borrowed, or lawfully used by a church, synagogue, or other religious institution unless the religious institution has a policy specifically prohibiting the carrying of concealed firearms. The bill passed the House Education & Employment Committee with one stop remaining.

SB 1484 Florida Private Student Assistance Grant Program alters eligibility for students to receive a Florida private student assistance grant (grant). The bill specifies that recipients of a grant, as an alternative to the requirement to have been accepted at an appropriate independent nonprofit college or university, have the option of having been accepted at a competency-based nonprofit virtual postsecondary institution in order to receive a grant, provided the institution:

  • Is accredited by a member of the Council of Regional Accrediting Commissions;
  • Is created by the governors of several states;
  • Has established and continually maintains a location of operation in this state; and
  • Maintains a governing body or advisory board in this state.

SB 1484 passed the Senate Education Committee and has two more stops remaining.

Regulatory
HB 522 Vacation Rentals SB 522 preempts all regulation of vacation rentals to the state, including the inspection and licensing of vacation rentals. A vacation rental is a unit in a condominium or cooperative, or a single, two, three, or four family house that is rented to guests more than three times a year for periods of less than 30 days or one calendar month, whichever is shorter, or held out as regularly rented to guests. Vacation rentals are licensed by the Division of Hotels and Restaurants (division) within the Department of Business and Professional Regulation (DBPR). The bill adds “licensing” to the list of regulations of public lodging establishments and public food service establishments that are now expressly preempted to the state. It provides that a local law, ordinance, or regulation may not require local inspection or licensing of the public lodging or public food service establishments. Under the bill, a local government may regulate activities that arise when a property is used as a vacation rental, provided the regulation applies uniformly to all residential properties. The bill maintains current law that local governments may not prohibit vacation rentals or regulate the duration or frequency of vacation rentals. The bill maintains the current “grandfathered” status for local laws, ordinances, or regulations adopted on or before June 1, 2011, and provides that a local government may amend a grandfathered regulation to be less restrictive. SB 522 passed the Senate Appropriations Committee and has one reference remaining.

SB 969 Consumer Privacy Data adds “biometric data” to the definition of “personal information” in FIPA. Thus, entities in possession of fingerprints, DNA, and other biological or physiological identifying information must take reasonable measures to protect the biometric data and report data breaches. The bill defines “personal information” as information that identifies, relates to, or describes a particular consumer or household, or is reasonably capable of being directly or indirectly associated or linked with, a particular consumer or household. The term does not include public information that is readily available to the public from government records or deidentified or aggregate consumer information. SB 969 passed the House Regulatory Reform Subcommittee and has two more committee references.

The bill allows the Department of Legal Affairs to bring an action against, and collect civil penalties from, a business who violates these requirements. Consumers whose personal information is the subject of a data breach may also bring a cause of action against the business in certain limited circumstances.

COVID-19 Liability Update
The Senate sponsor of both SB 72, Civil Liability for Damages Relating to COVID-19 and SB 74, COVID-19-related Claims Against Health Care Providers combined the two bills into one (SB 72) on Thursday in the Senate Rules Committee, stating its a strategic move for negotiations with the House. SB 72 now includes both the business and healthcare liability protections. SB 72 now limits civil claims against health care providers related to the COVID-19 pandemic. The bill requires that the initial complaint in a COVID-19-related lawsuit be pled with particularity. The trial court must dismiss a case if not pled with particularity. The bill requires the claimant to prove that the health care provider was grossly negligent or engaged in intentional misconduct in failing to substantially comply with government health standards or guidance, in interpreting or applying the standards or guidance, or in the provision of a novel or experimental treatment. Additionally, a health care provider is immune from civil liability under the bill if supplies or personnel were not readily available to comply with the standards or guidance. The bill requires that a COVID-19-related claim against a health care provider must be commenced within one year.

It also creates civil liability protections for individuals, businesses, governmental entities, and other organizations against COIVD-19-related claims. The bill, however, excludes healthcare providers from the liability protections created in the bill. The bill establishes preliminary requirements that a plaintiff must complete before the case is allowed to proceed. A court must determine whether:

  • The complaint was pled with particularity;
  • A physician’s affidavit was simultaneously submitted stating that, within a reasonable degree of medical certainty, the physician believed that the defendant caused, through acts or omissions, the plaintiff’s damages, injury, or death. If the plaintiff did not meet these requirements, the court must dismiss the action, but the plaintiff is not barred from correcting the deficiencies and refiling the claim.
  • The defendant made a good faith effort to substantially comply with authoritative or controlling health standards when the action accrued. If the court determines that the defendant made the requisite good faith effort, the defendant is immune from civil liability. If, in contrast, the court determines that the defendant did not make the requisite good faith effort, the action may proceed.

If a plaintiff meets these preliminary requirements, then he or she bears the burden of proving that the defendant did not make the good faith effort. Additionally, the plaintiff must meet the heightened standard of proving that the defendant’s acts or omissions were grossly negligent by the clear and convincing evidence standard. A COVID-19-related lawsuit must be brought within 1 year after a cause of action accrues unless the cause of action occurred before the effective date of the bill. However, if a cause accrues before the effective date of the bill, the plaintiff has 1 year from the effective date of the act to bring the claim. SB 72 passed Senate Rules and is available for floor action.


*Summaries provided by House and Senate bill analyses