Thank you to Peebles, Smith & Matthews for providing this 2021 Legislative Summary on issues affecting members of the Florida Association of Code Enforcement.
County and Municipal Code Enforcement - Awaiting Action by the Governor
SB 60 by Senator Bradley and HB 883 by Representative Overdorf
The bills amend the county and municipal code enforcement statutes to address the transparency of complaints made to code inspectors working for local governments and local code enforcement boards alleging violations of city and county codes and ordinances.
Specifically, the bills prohibit code inspectors and code enforcement officers from initiating a code enforcement investigation based upon an anonymous complaint. An individual making a complaint of a potential violation must provide his or her name and address to the local government body before an investigation may occur. The prohibition in the bill does not apply if the code inspector has reason to believe the alleged violation presents an imminent threat to public health, safety, or welfare or imminent destruction of habitat or sensitive resources. The bill provides an effective date of July 1, 2021.
SB 60 has passed the Legislature and will soon go to the Governor’s desk for signature.
HB 403 by Representative Giallombardo and SB 266 by Senator Perry
HB 403 and SB 266 allow home-based businesses to operate in any area zoned for residential use and activities but must be secondary to the property’s use as a residential dwelling. After HB 403 was amended in the Senate to match the Senate version, an amendment by Rep. Giallombardo was adopted on the last day of session. The amendment weakened local control over the regulation of home-based businesses by prohibiting local governments from regulating home-based businesses in a manner that is more stringent than residential home where no business activity is conducted. Local governments cannot enact or enforce any ordinance, regulation, or policy to regulate or license a home-based business, except as allowed by the bill.
Furthermore, a home-based business must meet the following requirements: the employees of the business who work at residential dwelling must reside in the dwelling, except for up to two employees or independent contractors, and the parking generated may not be greater than would normally be expected at a residence with no business operations and complies with local zoning requirements. Additionally, the amendment:
- Removes prohibitions on having business activities occur within view of the street.
- Removes local control over HBB hours of operation (leaving the bill with no regulation at all on hours of operation).
- Removes ability for local governments to regulate businesses signs, exterior storage, traffic/the number of cars coming and going from the house.
- Removes the prohibition on an HBB building external modifications that are visible from the street or neighboring properties.
- Removes local control on HBB uses or equipment or process that creates noise, vibration, heat, smoke, dust, glare, fumes, or odors. Instead, the amendment requires that such local regulations treat HBBs the same as any other residential property where no business is conducted.
- Keeps a provision that would allow an HBB owner to sue a local government and recover attorney fees for any violations by a local government of the new law.
HB 403 passed (77-41) as amended in the House and the Senate concurred in the House amendment and passed the bill on a vote of 19-18. Some four minutes later, however, Sen. Farmer raised a point of order as to the passage of the bill because three Senators, who were on the Floor, failed to vote in violation of the Senate’s Rules. The Senate President ruled the point of order well taken and requested the House return the bill for the Senate to take further action. The House failed to return the bill before adjourning Sine Die. There is some question as to whether or not legal challenge could be presented solely on the point raised by Senator Farmer. HB 403 will be one to watch and likely will be challenged by multiple local governments.
Florida Building Code - Awaiting Action by the Governor
SB 1146 by Senator Brodeur and HB 401 by Representatives Fetterhoff and Overdorf
HB 401 amends the Florida Building Codes Act adding several new provisions. Specifically, the bill allows a substantially affected person to petition the Florida Building Commission for a non-binding advisory opinion on whether a local government regulation is an improper amendment to the Building Code and establishes a process for such petitions. The bill prohibits a municipality, county, or special district from using preliminary maps issued by the Federal Emergency Management Agency for any law, ordinance, rule, or other measure that has the effect of imposing land use changes or permits.
The Commission may issue an “errata to the code” to list demonstrated errors in provisions contained within the Building Code if the determination of errors and issuance of an errata code is approved by a 75 percent supermajority vote of the Commission. A local government may not require a contract between a builder and an owner as a condition to apply for, or to obtain, a building permit. The bill makes several changes to current law pertaining to private building inspectors, known as “private providers,” by:
- Expressly authorizing private providers to conduct virtual building inspections.
- Allowing private provides to submit various inspection forms, records, and reports electronically to local building departments and utilize electronic signatures.
- Allowing private providers to conduct “single-trade inspections,” as defined in the bill.
- Creating a “qualified private provider” registration process and providing that a qualified private provider, as defined in the bill, does not need to include information other than the services to be performed in their written notice to the local building official that a private provider has been contracted to perform inspections.
- Authorizing a private provider to conduct emergency inspection services without first notifying the local building official.
Additionally, the bill requires that when an owner or contractor retains a private provider to perform plans reviews or building inspection services a local enforcement agency must to reduce its permit fee by the amount of costs savings realized for not having to perform such services. The reduction may be calculated as a flat fee, on a percentage basis, or any other reasonable basis by which the local enforcement agency assesses the costs for plans review or building inspection services. The bill expressly authorizes local governments and school districts to use a private provider to provide building code inspection services for public works projects and improvements to any building or structure.
A local government may use excess funds generated by building code enforcement for the construction of a building or structure that houses the local government’s building department or provides training programs for building officials, inspectors, or plans examiners. However, a local government using excess funds to construct a building or structure must designate the funds for that purpose and may not carry forward the funds for more than four consecutive years.
The bill requires the Commission to adopt rules for approving product evaluation entities in addition to those entities already listed and approved in current law and clarifies the Commission may suspend product evaluation entities. The Senate adopted amendment that included the substance of HB 55/SB 284- Building Design, by Rep. Overdorf and Sen. Perry to prohibit local governments from regulating specific “building design elements” for single-family or two-family residential dwellings, with certain exceptions including:
- Dwellings on the National Register of Historic Places or located in a historic district.
- Regulations are adopted to implement the National Flood Insurance Program.
- Regulations are adopted to comply with Chapter 553.
- Dwellings are located in the community redevelopment area.
- Regulations are required to ensure protection of coastal wildlife in compliance with current law.
- The dwelling is located within a planned unit development or master planned community created by ordinance, resolution or other final action of the local governing body.
- The dwelling is located within the jurisdiction of a local government that has a design review board or architectural review board.
The bill defines the term "building design elements" and the term "planned unit development" or "master planned community." This provision does not affect the validity or enforceability of private covenants or other contractual agreements relating to building design elements.
HB 401 is awaiting action by the Governor.
Abandoned Property – Did not pass
SB 1808 by Senator Powell and HB 1393 Representative Davis
The legislation would have created the "Abandoned Property Neighborhood Relief Act" which authorized a mortgagee or mortgage servicer to enter certain abandoned property only under specified conditions. The bill stated a county or municipality may notify a mortgagee or mortgage servicer that a residential real property has been determined to be abandoned, in mid-foreclosure, and a nuisance. SB 1808/HB 1393 required a mortgagee or mortgage servicer to abate the nuisance and maintain certain property upon receipt of specified notice.
Additionally, the bill specified that if a mortgagee or mortgage servicer receives notice and does not abate the nuisance within 60 days or the time prescribed by local ordinance, a county or municipality may exercise its authority to reasonably abate the nuisance. In this situation, the bill stated a county or municipality may recover the costs.
Neither SB 1808 nor HB 1393 received a hearing this session.