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Legislative Report (2009)2350 Coral Way, Suite 301 Miami, Florida 33145 (305) 860-0780 (Telephone) (305) 860-0580 (Facsimile) 119 South Monroe Street, Suite 200 Tallahassee, Florida 32301 (850) 222-9911 (Telephone) (850) 222-8416 (Facsimile) fgomez@gomezbarker.com Gomez Barker Associates, Inc.  Memorandum To: Hon. Horace G. Feliu, Mayor Hon. Brian D. Beasley, Vice Mayor Hon. Valerie Newman, Commissioner Hon. Velma Palmer, Commissioner From: Fausto B. Gomez CC: Ajibola Balogun, City Manager Date: September 15, 2016 Re: Legislative Report I am pleased to report on the activities of this firm on behalf of the City of South Miami during the recently concluded legislative session. This was an extremely difficult year, with the recession and individual political considerations impacting every budget and policy decision. Compounding this, Speaker Ray Sansom had to resign and there were a record forty-four freshmen involved in the process. All these factors created a legislative scramble and vacuum that was never completely addressed. At the same time the Governor’s authority was challenged with regard to his priorities; the Seminole Indian Gaming Compact, the proposal to purchase land for Everglades cleanup, Renewable Energy, and Sunrail (the commuter rail line in Central Florida). Two of these were severely modified and two failed. Given all of this, it is remarkable that the Session ended only a week late. On the budget front, this year's $66.5 billion spending plan used $3 billion in stimulus money to close a deficit that would have been as high as $6 billion without the federal dollars. To close the rest of the gap, the Legislature approved new taxes and fees, including a $1 billion cigarette tax and a myriad of fees totaling about $800 million, and swept trust funds. The budget also depends on the Seminole Indian Tribe agreeing to the terms of the gambling compact. That is expected to generate from $150 to $300 million annually and the lower number is already factored into the state budget for the next fiscal year. A Special Session is anticipated for October to either ratify the Compact or reduce the budget if those dollars don’t materialize. Also included in the budget is a potential property tax increase of .25 mils if a local school board imposes it and if voters subsequently agree to it. One of Tallahassee’s most wry observes noted that the budget was approved “with a bit of apology that it has higher taxes and fees, a bit of bragging that it was better than expected given the economy, and a bit of wariness over what the future may hold due to its patchwork nature.” A similar dysfunction permeated policy deliberations. There were fewer bills passed this year than in any session since 1998 thus creating a stampede at the end to amend legislation stuck in committee onto other bills which were being considered on the floor. Development and insurance interests took advantage of these difficulties to push for their long-standing agendas under the guise of economic development and the lamentable practice of demonizing local governments for alleged deficient budget and taxing decisions continued. The result being that as your lobbyists we had to continually fight legislation impacting local governance or ameliorate the most onerous provisions. In the midst of this, South Miami fared well. The legislature appropriated $365,598 in stimulus funding for transportation and transit projects and clarified an administrative process for the proposed improvements to U. S. 1. That will be accomplished with the dollars obtained last fiscal year for the pedestrian overpass. Additionally, legislation pre-empting local regulation of tower cranes, imposing Revenue Caps as well as Property Tax Caps, extending permits and development orders for three years, relaxing zoning regulations for community residential homes, removing sovereign immunity protection from Bert Harris claims, establishing a moratorium on impact fees, and prohibiting local governments from enforcing ordinances that require mortgage holders to maintain and secure foreclosed properties failed. All of these were items of specific interest to the City. Also failing, unfortunately, were some important funding and policy issues. Until the closing moments of the budget process South Miami was recommended for a $400,000 grant through the South Florida Water Management District. Ultimately, no city in the state received any water funding, but key members of the Miami-Dade Delegation worked throughout the session to secure a $15 million allocation for local governments in the tri-county area. Despite the urgency of this item and it being advanced by budget leaders, at the last instance this was rejected by the President of the Senate and the Speaker of the House who could not agree on a funding source. Another item that was not successful was the designation of S. W. 67th Avenue as a state historic road. This is simply a temporary setback as no “road designation” legislation was approved because of a particular circumstance not related to this item. Following is a synopsis of items of special interest to South Miami and recommendations on how to proceed to secure stormwater funding next legislative session. Appropriations Transportation Transportation stimulus funding was a two-step process, requiring both a local recommendation from the Metropolitan Planning Organization (MPO) as well as state approval from the Legislative Budget Commission (LBC). As a result of our joint efforts, South Miami secured $253,166 for improvements to Sunset Drive and $112,432 for construction of transit related projects (bus bays and/or bush shelters) along Sunset Drive. These projects and amounts were recommended by the MPO and subsequently appropriated by the LBC at their April 15th meeting. The City’s items were listed on the LBC agenda under EOGW2009-0082. The LBC had the authority to approve, reject, or modify any funding recommendation and, in fact, they denied one significant Miami-Dade project. The MPO had suggested that stimulus dollars be used for the construction of the 25th Street Viaduct and the LBC instead appropriated those dollars for the 826/836 Interchange. The other transportation issue of importance to South Miami was securing legislative and/or administrative approval for pedestrian improvement to U. S. 1. As you may recall, we obtained $1,500,000 last fiscal year for a pedestrian overpass but that project was shelved by Miami-Dade County who wants to utilize South Miami’s funds for other improvements. The City has developed an alternative plan and during the recent visit to Tallahassee by Vice Mayor Beasley, Commissioner Palmer, and the City Manager we discussed this with the Secretary of the Florida Department of Transportation (FDOT) who indicated to us that no legislation was necessary since approvals could be obtained administratively. Subsequent to that City Manager Balogun spoke to District FDOT Secretary Gus Pego who confirmed that fact. Water Resources Protection Notwithstanding our continuous lobbying efforts with the legislative budget conferees, neither this firm nor our colleagues who represent other local governments were able to secure funding for water projects. In fact, the Legislature provided no funding for any water projects in the state and this is only the second time in the past 15 years that critical funding support in this area was not appropriated. As you know, South Miami usually secures over $500,000 annually from this source for stormwater. The leading members of the Miami-Dade legislative delegation and those of us representing local governments in South Florida shared a real optimism that despite a record shortfall in state revenues we would be able to impress upon the presiding officers the need for continued funding for critical water projects. So it was when Sen. Diaz de la Portilla, Rep. Llorente and Rep. Rivera managed to convince their respective chambers on two separate occasions to extend informal offers for such funding, although dependent upon different revenue streams. Despite repeated indications of support from many of the highest ranking members of the House and Senate, they were unable to agree on the funding source and so the issue died. In consultation with legislators and our colleagues in Tallahassee, we are beginning to chart a course for success in next year’s session. Our plan is comprised of three important steps: Promoting the passage of a dedicated funding source for water resources: In 2005, the Legislature passed SB 444, which was intended to provide a minimum of $100 million annually for the protection and development of water supplies. The funding for this program has been reduced each of the last four years, to a point that for the 2009-10 Fiscal Year the state eliminated all funding. It remains our highest priority to once again secure a dedicated source for these critical issues. To that end, we already obtained legislative approval for maintaining the “Water Protection and Sustainability Program Trust Fund” in the Department of Environmental Protection (CS/SB1740) and have reached out to the Florida League of Cities and the Association of Counties to work collaboratively to identify and develop a program framework which will provide significant funding and shared state and local government control as to its implementation. Various models exist in other areas of state government as to how funds for infrastructure projects can be administered in a manner providing local governments with a reasonable opportunity to access support. These will be evaluated with a goal of introducing legislation early in the 2010 session. Application and approval of projects through the State Revolving Loan Program: It is clear that the State places a high degree of emphasis on the participation of local government in the State Revolving Loan Program (SRL). For those less familiar with it, it is actually comprised of two separate categories; one for Drinking Water and another for Wastewater and Stormwater. The SRL Program is subsidized by the federal government and is predicated upon the issuance of below market rate loans to qualified local governments. The funds are disbursed based upon a priority ranking system which gives preference to financially constrained communities and projects intended to address immediate health risks. In addition to the $230 million in bonds issued by the State earlier this year, Florida recently received an additional subsidy of $88 million for drinking water projects and $132 million for wastewater and stormwater projects through the federal stimulus package. Although the State has proposed to issue half of the federal dollars as grants, the program rules require that these “free” dollars will only be made available to “Small Disadvantaged Communities,” defined as those communities with populations of less than 7,500 or mean household income levels below the State average. Under the federal guidelines, Florida is required to submit to the Environmental Protection Agency (EPA) an Intended Use Plan (IUP) detailing how the federal share of the funds are to be expended. The State is still in the process of developing the IUP for drinking water, but has already submitted its IUP for wastewater and stormwater projects under current program rules. Modification of the SRL Program guidelines in order to ensure that local governments enjoy a fair opportunity to access those funds. The DEP has long been critical of local governments in Miami-Dade County for leading the efforts to obtain direct grants from the Legislature for water projects, preferring that local governments secure loans and participate in the SRL Program. The DEP will readily admit, however, that the backlog of projects at any given time greatly exceeds their funding capacity. Therefore, we propose to revise the program guidelines in order to ensure that every community has a fair chance to qualify for funding, and to expand the qualification for grants so that additional deserving communities may be able to implement their projects. This firm and many of our colleagues who also represent local governments are confident that if we implement the plan as outlined above we will be successful in securing funds. Legislation Below is a list of bills of particular importance to South Miami. I have highlighted in blue those bills in which we were successful and in red those in which we were not. Following that is a roster of bills impacting local governments that either passed or failed. Bills of Specific Interest to South Miami Tower Crane Regulation This bill would have preempted local regulation of tower cranes. The City has had this item on its legislative agenda for the past two years and we have been successful in killing it each time. HB923 by Rep. Evers dies on March 25th in the Military and Local Affairs Policy Council. Its companion, SB1654 by Sen. Altman, was never heard in committee. Revenue Caps This legislation would have limited state and local revenues and required voter approval for all new taxes and fees. Commonly known as “TABOR,” HB1263 by Rep. Flores died on March 31st in the Finance and Tax Council. Its companion, SB1906 by Sen. Haridopolis, died on April 21st in the Government Oversight and Accountability Committee. This legislation will most probably be back on the legislative agenda next year in the form of a constitutional amendment for the November 2010 ballot. Property Tax Caps This legislation would have restricted the aggregate amount of taxation to 1.35% of the property’s taxable value. HB385 by Rep. Rivera died in Messages and SB738 by Sen. Haridopolis died on March 19th in the Finance and Tax Committee. This legislation will most probably be back on the legislative agenda next year in the form of a constitutional amendment for the November 2010 ballot. Permit Streamlining This legislation would have extended and automatically renewed for three years any development order, building permit, or other land use application that has been approved any a state agency or local government. CS/HB7143 by the House Agriculture and Natural Resources Committee died in Senate Messages on April 27th. Its companion, CS/CS/SB2026 by Sen. Altman, died in the Commerce Committee on April 14th. Notwithstanding this victory, the comprehensive Growth Management bill, CS/CS/SB360 by Sen. Bennett, was approved and it has a provision requiring an automatic 2-year extension of any local or state permit or development order expiring between September 2008 and January 2012. Exceptions to the extension are provided for owners or operators who are in significant noncompliance with the conditions of the permit. The Growth Management bill is quite controversial and there is a concerted campaign to have it vetoed. Community Residential Homes This legislation would have exempted community residential homes from the current 1,000 foot radius prohibition. HB371 by Rep. Stargel died on the House Special Order Calendar on April 29th. Its companion, SB1124 by Sen. Altman, died in Messages. Bert Harris Act This legislation, promoted by the Private Property Rights Coalition, would have removed the sovereign immunity provisions in Florida Statutes for Bert Harris claims, would have changed from 180 days to 120 days the time period in which a local government had to be notified prior to a claim being filed, and limited to 120 days the time period for a response. HB1361 by Rep. Eisnaugle was never heard in committee. Its companion, SB1556 by Sen. Baker, died in the Judiciary Committee on April 14th. Impact Fees This legislation would have established a three-year moratorium on the imposition or collection of impact fees by a county or municipality. HB1129 by Rep. Grimsley died on May 8th in the Military and Local Affairs Policy Committee. Its companion, SB630, died in the Committee on Finance and Tax on April 16th. Property Register This legislation would have required the Department of Financial Services to create a statewide registry of abandoned or vacant property and placed a number of obligations on mortgage lenders to inspect and maintain the property. If a lender did not inspect and maintain the property, then a local government could enter the property and initiate repairs. HB119 by Rep. Porth was never heard in committee. Its companion, SB874, by Sen. Smith died in the Banking and Insurance Committee on April 14th. It is difficult to have legislation approved not favored by the banking community when the Senate President is a banker and the chairmen of the committees to which the bills were referred are also bankers. Fearing the effects of this legislation, however, representatives of the Florida Bankers Association attempted to enact an amendment to pre-empt local governments from enforcing ordinances that require mortgage holders to maintain and secure foreclosed properties. They argued that that was an illegal obligation placed on lenders. That amendment was killed. Red Light Cameras This legislation would have authorized the use of cameras at traffic intersections. The bills included comprehensive grandfather provisions for existing cameras, directed FDOT to develop statewide standards for the cameras, and pre-empted the authorities of counties to prohibit the installation of cameras on county-owned or maintained right-of-way. CS/CS/CS439 by Rep. Reagan died in Senate Messages and CS/CS/SB2004 by Sen. Altman was laid on the table in the House. At the end of the legislative session a dispute arose about the distribution formula for traffic citations with the Senate advocating a greater amount to Trauma Centers and a corresponding lesser amount to local governments. The House would not go along with that change. Historical Designation of Ludlum Road CS/SB672 by Sen. Ken Pruitt, the immediate past Senate President, included the designation of Ludlum Road as a state Historic Highway. That is found in Section 20 of the bill between lines 211 and 249. It was included in the legislation through an amendment by Sen. Larcenia Bullard on April 6th at the Senate Transportation meeting. This legislation was the only vehicle for road designations in the legislature and it passed the Senate unanimously on April 23rd. It died in Messages to the House when that body did not want to consider it because of a pending amendment to designate Biscayne Boulevard in Miami. It is frankly unprecedented for a road designation bill to fail and we will secure this during the course of next year’s legislative session. Other Bills of Interest to South Miami Local Government Issue Campaign Expenditures/Restrictions SB 216 by Sen. Justice restricts the ability of local governments to use or expend public funds to advocate for or against an issue presented to voters. The bill allows local governments to present factual information to voters under specified conditions and clarifies that a local government elected official is not prohibited from expressing an opinion on any issue at any time. Effective July 1, 2009. Fertilizer Ordinances CS/CS/CS/SB 494 by Sen. Bennett directs the Department of Environmental Protection to create, by January 15, 2010, a model ordinance relating to automatic irrigation systems and encourages local government to adopt and enforce the model ordinance that includes penalties for operators of automatic sprinkler systems not in compliance with sprinkler system contractor reporting requirements by October 1, 2010. This will include technology that will inhibit the sprinkler system during periods of sufficient moisture. Funds generated through penalties are to be retained by local governments to further water conservation activities. Also included is language relating to local government adoption of the Model Ordinance for Florida-Friendly Fertilizer Use on Urban Landscapes and certification of fertilizer applicators. Any local government with an impaired water body must adopt the Model Fertilizer Ordinance or a more stringent fertilizer ordinance and existing local government ordinances are grandfathered. Effective July 1, 2009. Water Resources SB2080 by Sen. Alexander requires all government agencies to use Florida-friendly landscaping on public properties associated with a building or road constructed after June 30, 2009. Effective July 1, 2009. Impact Fees Burden of Proof CS/CS/HB 227 by Rep. Aubuchon places the burden of proof on the local government in an impact fee challenge and changes the standard of review to the preponderance of the evidence. The bill also removes any deference to the local government’s decision. Effective July 1, 2009. Non Homestead Cap and First Time Homebuyers Exemption CS/SJR 532 by Sen. Lynn provide first time home buyers a property tax exemption. The bill provides a first time homebuyer an exemption of 25% of the just value of the property in the first year and reduces that exemption by 20% each year thereafter. It also sets for a vote a constitutional amendment that would limit the assessment growth on commercial and residential rental property to the higher of 5% annually or the average annual percentage growth in revenues derived from the property over the previous 3 years. Multiple effective dates. Ad Valorem Taxation CS/SB1580 by Sen. Ring would authorize tax collectors to accept one or more partial payment of any amount per parcel for payment of current property taxes and assessments. The partial payment would be distributed in equal portions among all applicable taxing districts and levying authorities. Effective July 1, 2009. Public Construction CS/CS/HB 611 Rep. Hukill addresses the public construction and bidding process. The bill requires local governments to competitively bid any project to construct or improve any public building or project in excess of $300,000 (the current threshold is set at $200,000) and for electrical work the threshold is $75,000 (currently the electrical work threshold is $50,000). The bill changes the cost index multiplier from CPI to a construction cost index. The words “maintenance” and “repair” are specifically defined to limit the types of projects that can be undertaken by a local government outside the bidding procedures. For maintenance or repair projects that include extensions, additions or upgrades within a set cap and for which the local government will utilize its own equipment and employees, the local government must develop a breakdown of the estimated costs of the project including employee compensation and benefits, equipment costs, insurance costs, etc. The bill also provides that if a local government wants to perform a public project using its own employees and equipment, the local government must make its estimated costs available to the public and then hold a public hearing in which qualified bidders are provided an opportunity to present evidence regarding the accuracy of the cost estimate prepared by the local government. Airports, ports and public transit systems owned by local government entities are exempt from the provisions of the bill. Effective October 1, 2009. Traffic Accident Response Fees CS/SB 2282 by Sen. Bennett prohibits cities and counties from imposing fees or obtaining reimbursement for costs or expenses incurred for services provided by first responders relating to a motor vehicle accident. The bill exempts charges for ambulance services and the costs to contain or clean up hazardous materials in quantities reportable to the Florida State Warning Point at the Division of Emergency Management. Effective July 1, 2009. Growth Management/Affordable Housing CS/CS/SB 360 by Sen. Bennett defines certain areas of the state as "Dense Urban Land Areas" and designates such areas as automatic Transportation Concurrency Exception Areas (TCEAs). In addition, it specifies that large scale developments within such areas are exempt from "Development of Regional Impact" review. The bill allows all other cities and counties to "opt in" specified portions of their jurisdictions to the TCEA and DRI-exemption. Within 2 years, cities and counties must develop strategies to support and fund mobility within TCEAs. In addition, the bill extends the deadline for cities and counties to comply with statutory financial feasibility requirements to December 2011. It requires the intergovernmental coordination element of local government comprehensive plans to provide for mandatory dispute resolution of intergovernmental disputes. It requires a local government to issue "contingent" zoning approval concurrent with the transmittal of a plan amendment, if requested by an applicant. It requires an automatic 2-year extension of any local or state permit or development order expiring between September 2008 and January 2012. Exceptions to the extension are provided for owners or operators who are in significant noncompliance with the conditions of the permit. It prohibits local governments from adopting or maintaining in effect an ordinance that establishes standards for security cameras at businesses. It requires state agencies to develop and report on a "mobility fee" as a means to replace transportation concurrency. The substance of CS/CS/HB 161 (Aubuchon), addressing affordable housing, was amended onto CS/CS/SB 360. The bills provides for numerous changes to affordable housing statutes, including a provision that redefines the term “infrastructure” to allow the proceeds of a local government infrastructure surtax to be used to purchase land for the construction of affordable housing. Effective upon becoming law. Budget and Spending Transparency CS/CS/1796 by Sen. Alexander establishes transparency requirements for state budgeting and spending. The bill requires the Joint Legislative Auditing Committee over the next year to develop recommendations for budgeting and spending transparency for local governments, school districts, universities, and other entities. These recommendations could be acted upon during the 2010 legislative session. Effective upon becoming law. FDOT Transportation Package HB 1021 by Rep. Aubuchon addresses numerous issues relating to the Department of Transportation. CS/HB 1021 includes language creating a process for local governments to provide input to the Department of Transportation relating to projects being considered for deletion or deferral from the 5-Year Work Plan. Current law relating to transportation concurrency backlog authorities is amended to authorize the issuance of bonds and extend the lifespan of the debt that can be incurred for up to forty years as well as increase the amount of ad valorem tax increment the authorized to be collected. The bills also include language revising provisions relating to outdoor advertising; the placement of public pay phones containing advertising signs on public rights of way; and the allocation of costs relating to the relocation of utility facilities. Effective upon becoming law. Property Insurance CS/CS/CS/HB1495 by Rep. Nelson makes wide ranging changes to the regulation of property insurance. Among its provisions, it would implement a rate “glide path” capped at 10% per year for Citizens Property Insurance Corporation policyholders until rates are actuarially sound. This provision goes into effect on January 1, 2010. Residential Property Insurance CS/CS/HB1711 would allow certain insurers to use a rate in excess of the rate filed with the Office of Insurance Regulation if the insurer has surplus as to policyholders of $500 million or more or the insurer has a surplus of $200 million or more and a ratio of net written premium to surplus of two to one or less. Effective July 1, 2009. Professional Regulation HB425 by Rep. Plakon amends 509.233, F.S. which was a pilot program to allow patrons’ dogs within certain designated outdoor portions of public food service establishments. In removing the pilot program, the legislation establishes the ability for local governments to accomplish this by local ordinance. At last count, twenty-two cities and counties (from Miami Beach to Jacksonville) have expressed an interest in this. Effective October 1, 2009. Emergency Preparedness SB714 by Sen. Fasano repealed 553.509, F. S. which required any multi-family dwelling at least 75 feet in height to contain a public elevator and that at least one elevator had to be capable of operating on an alternative power source for emergency purposes. Effective upon becoming law. Safety Belt Law CS/SB344 by Senator Rich provides for primary enforcement of the safety belt law for operators and front seat passengers. The bill would allow law enforcement officers to stop motorists solely for not using their safety belts. A person violating this section would be cited for a nonmoving violation, punishable by a $30 fine. These provisions were approved by the Governor and take effect June 30, 2009. Elevator Retrofit The proposal by the Department of Business and Professional Regulation (DPBR) to mandate the upgrade of elevators to new code requirements whenever those are changed was a serious struggle all session. The language to grandfather existing elevators was included in SB2100 by Sen. Bennett, HB7149 by Rep. Williams, and SB682 also by Sen. Bennett. None of these bills passed, although SB682 was the next bill on Messages when the session ended. Because of our efforts, DPBR indicated to legislators that waivers will be granted for periods between six to eighteen months to accomplish elevator retrofits and that such waives will be granted routinely for three to five years. This will allow South Miami to revisit the issue in future sessions. Condominium Reform Despite attempts by legislators and other interested parties to move forward relief for condominium residents by increasing the responsibility of primary mortgage holders with regard to assessments and fees on foreclosed units, none of the six bills which contained language passed. The Senate President and the Chairman of the Banking and Insurance Committee are both bankers and Rep. Robaina, the chief advocate of condominium reform, experienced difficulties with the Speaker of the House and set aside his proposals for several weeks of Session. SB880 by Sen. Fasano died on Special Order. It would have required a tenant who was occupying a unit in foreclosure, when the owner is delinquent in the payment of regular assessments, to be responsible for the payment of future assessments. The tenant’s landlord would then be required to provide a credit against rent in the amount of assessments paid to the condominium. Its companion bill, HB831 by Rep. Frishe, was never heard. SB998 by Sen. Ring would have required the first mortgagee or its successor to pay the association the lesser of the unit’s common expenses and regular assessments that came due during the preceding six months, or 1% of the original mortgage debt. Its companion bill, HB633, by Rep. Porth, was never heard. HB1397 by Rep. Robaina would have added language requiring a mortgagee who files a foreclosure case on a unit, within fifteen days after filing, unpaid common expenses and regular periodic assessments which accrued or came due up to the date of filing. Its companion bill, SB2302 by Sen. Garcia, was not heard. My team and I take great pride in representing South Miami and want to particularly thank the Mayor, Vice Mayor, Commissioner Palmer, and the Manager who joined us in Tallahassee. We will follow all of the budget and policy items and their implementation and will keep you abreast of any developments. As always, please do not hesitate to contact me if you have any questions or desire additional information.