No More Doggie Deception: ESA Anti-Fraud Bill Among 2020 Legislative Wins
By Amanda Gill
The 2020 legislative session moved fast and furiously and when it ended on March 19, many of the Florida Apartment Association’s priorities had advanced to the finish line, needing only the signature of the governor to become law. That final step across the finish line was paused, however, when Gov. Ron DeSantis turned his full attention to the state’s response to the COVID-19 pandemic. By the time of this writing, the state budget and many of FAA’s priority bills had not been signed. One key piece of legislation two years in the making, however, was signed into law on June 23: HB 209/SB 1084 to curb emotional support animal fraud. And although the final budget was delayed, the version passed by both houses included full funding for the Sadowski Affordable Housing Trust Fund for the first time in 13 years. Overall, 2020 was a banner year for FAA and its members.
LEGISLATION PASSES TO CURB EMOTIONAL SUPPORT ANIMAL FRAUD
House Bill 209 (Rep. Sam Killebrew, R-41)/Senate Bill 1084 (Sen. Manny Diaz Jr., R-36)
FAA encouraged passage of legislation to reduce emotional support animal (ESA) fraud by establishing protections for housing providers and penalties for those who falsify documentation related to the need for an ESA.
SB 1084 was passed by both chambers unanimously and signed by the governor on June 23. When the new law goes into effect on July 1, , housing providers will be able to request reliable documentation in the event an individual’s disability-related need for an ESA is not readily apparent. Reliable documentation may be provided by a federal, state, or local government agency, specified healthcare practitioners, telehealth providers, or out-of-state practitioners who have provided in-person care or services to the resident on at least one occasion.
The new law also clarifies a housing provider’s right to prohibit an animal if it poses a direct threat to the safety, health, or property of others. Additionally, if a person requests more than one ESA, the housing provider may request information regarding the need for each animal.
Last but certainly not least, the new law creates important penalties that will deter ESA fraud. A practitioner could face disciplinary action, be charged with a criminal misdemeanor, or both for providing documentation for an ESA without personal knowledge of the patient’s disability or disability-related need or providing false or fraudulent ESA documentation.
SADOWSKI IS FULLY FUNDED FOR THE FIRST TIME IN 13 YEARS
FAA has urged the legislature over the years to use the Sadowski Affordable Housing Trust Fund monies, which are collected via document stamp taxes on real estate transactions, exclusively for affordable housing programs as intended. Unfortunately, year after year, these funds are often diverted to other needs across the state budget. For the first time in 13 years, the state budget that was passed by both the House and Senate fully funds the Sadowski Affordable Housing Trust fund.
The $370 million in funding includes:
$115 million: State Apartment Incentive Loan program (SAIL) and other affordable housing programs.
$225 million: State Housing Initiatives Partnership Program (SHIP).
$30 million: Hurricane Housing Recovery.
This was a significant victory for FAA and the housing industry because these funds will play a critical role in developing or renovating affordable housing across the state.
It is worth noting that the legislature’s decision to fully fund the Sadowski Affordable Housing Trust fund could not have come at a better time in Florida’s history. SHIP funds have already been used to help establish rent and mortgage relief programs at the local level across the state to assist Floridians who were experiencing financial hardship due to COVID-19.
PROBLEMATIC SUBSCRIBING WITNESS REQUIREMENT REMOVED
House Bill 469 (Rep. Wyman Duggan, R-15)/Senate Bill 1224 (Sen. David Simmons(R-09)
Existing state law requires two people to witness a landlord’s signature on a lease for longer than one year, and to sign a statement to that effect. This “subscribing witness requirement” creates a problem because many leases are completed online. Both the House and the Senate passed HB 469, which will, if signed, remove this stumbling block for the apartment industry.
STATE PREEMPTS LOCAL GOVERNMENTS FROM ESTABLISHING RIGHTS OF NATURE
Senate Bill 712 (Sen. Debbie Mayfield, R-17)
Local governments across the state had been exploring the idea of establishing “Rights of Nature” ordinances, which provide certain legal rights and protections to elements in the natural environment, such as a river. Ultimately, these policies can be used to prevent development of apartments communities in the future — especially concerning at a time when Florida has a housing shortage. During the committee process for SB 712, an Environmental Resource Management bill, language was added to prohibit local governments from recognizing or granting certain legal rights to things in the natural environment. SB 712 passed both the House and Senate and, if signed into law, will become effective on July 1.
OTHER FAA PRIORITIES SEE ACTION BUT DO NOT PASS IN 2020
Two additional FAA legislative priorities saw action during the 2020 session but unfortunately were not passed by time the session ended. The FAA government affairs team will be evaluating the opportunity to address these issues for the 2021 session.
Affordable housing tax incentives. FAA advocated for language to be added to HB 1339 or SB 998 that would have allowed counties to establish a property tax discount program for affordable housing units. FAA’s tax incentive language was added to a proposed amendment for SB 998 on February 14 but was later stripped from the bill because of tax revenue concerns.
Although FAA’s language was removed from the bill, HB 1339 was ultimately passed by both the House and Senate. If signed by the governor, this new law will enable local governments to approve the development of affordable housing on any parcel of land that is zoned for residential, commercial, or industrial use. The law would also impose additional impact fee reporting requirements on local governments and establish biannual affordable housing workshops, among other positive changes.
FAA also worked to address industry concerns related to linkage fees in HB 1339. Linkage fees may be flat or percentage-based and are used by local governments to fund affordable housing development. Language was added to HB 1339 to clarify that a county or municipality which imposes a linkage fee must provide incentives to fully offset all fee costs to the developer of a residential or mixed-used residential development. Incentives may include allowing density or intensity bonuses, reducing or waiving fees, or others. This requirement was modeled after FAA’s priority legislation from the 2019 session, HB 7103. This bill was signed into law last year and requires local governments to provide incentives to fully offset the developer’s costs for affordable housing construction under an inclusionary zoning policy.
Fire radio system requirements (SB 1404). Under current statute, local governments have the authority to determine the minimum strength of fire department radios in existing and new buildings within their jurisdictions. Apartment community developers and operators are required to install equipment that will boost the signal if needed for firefighters to communicate effectively in the event of an emergency. Because the authority rests with local governments, the processes and requirements vary across the state, causing challenges for some developers and operators. Under current law, existing apartment buildings are not required to comply with local signal strength requirements until January 1, 2025. However, apartment buildings are required to apply for the appropriate permit for the required communications installation by December 31, 2022.
Sen. Lauren Book (D-32) introduced an amendment to SB 1404 to remove the language in state law that requires apartment communities to obtain a permit to install this fire radio signal equipment by December 31, 2022. Instead, the amendment called for apartment communities to have completed a minimum radio strength assessment by that date. Unfortunately, SB 1404 was indefinitely postponed and therefore did not advance to the floor during the 2020 session.
FAA SUCCESSFULLY OPPOSES HARMFUL LEGISLATION
Over the course of the 2020 session, several pieces of legislation were introduced that could’ve wreaked havoc on the apartment industry and its bottom line. Here is just a small list of the bills that FAA successfully opposed this year.
HB 6013 (Rep. Anna Eskamani, D-47) would have removed Florida’s rent control preemption and allowed local governments to pass rent control measures. This bill died without a committee hearing and will have to be reintroduced next session to receive further consideration.
SB 1852 (Sen. Jose Rodriguez, D-37) included numerous requirements such as a mandate to notify tenants before the sale of a rental property, protections for victims of domestic violence, requirement of just cause for evictions, and more. This bill died without a committee hearing and will have to be reintroduced next session to receive further consideration.
HB 321(Rep. Michael Grieco, D-113)/SB 480 Sen. Jason Pizzo, D-38) would have prevented evictions during a state of emergency. HB 321 cleared one committee as amended. The revised language limited evictions during hurricane watches/warnings and added a mandatory five-day hold on a writ of possession. HB 321 died in committee and will have to be reintroduced next session to receive further consideration.
SB 1528 (Sen. Victor Torres, D-15)/HB 6069 (Rep. Anna Eskamani, D-47) would have removed the requirement for a resident to pay rent into a registry of the court under certain circumstances. This bill died without a committee hearing and will have to be reintroduced next session to receive further consideration.
OTHER NOTABLE LEGISLATIVE CHANGES
Although it was a very successful year overall for FAA, one bill passed that was strongly opposed by the apartment industry. SB 374 (Sen. Darryl Rouson D-19) removes the requirement to exhaust administrative processes for housing discrimination complaints. This legislation has been successfully opposed several times over the years but this year had more momentum in both the House and Senate.
This momentum is likely because the Florida Commission on Human Relations was strongly advocating in favor of this legislation and claimed HUD funding could be cut if this bill was not passed during the 2020 session. The commission argued that Florida’s existing law — requiring an individual to exhaust the administrative process before proceeding to court with a housing discrimination claim — was in violation of federal law. As a result, the legislation was passed by both the House and Senate. If this bill is signed by the governor, it will become effective immediately.
Other legislation, passed under direction from the governor, will require employers to use the federal E-Verify system. E-Verify is a federal database that was designed to aid employers in identifying undocumented immigrants who are ineligible to work in the U.S. SB 664 (Sen. Tom Lee, R-20) was passed by both the House and Senate.
Once signed into law by the governor, the legislation will become effective on July 1, and will require all government employers to use the federal E-Verify system. Private employers who decide not to use E-Verify will be required to keep a three-year record of the documents used by workers to complete an I-9 form to verify employment eligibility.
All things considered, FAA and the Florida apartment industry had a very successful 2020 legislative session. A special thanks to all the FAA members who took time to travel to Tallahassee for FAA’s annual Legislative Conference. Your advocacy efforts made a critical impact and set the association up for a truly banner year.
As we begin to set our eyes on the 2021 session, FAA encourages members who are interested in attending next year’s Legislative Conference or would like to help FAA formulate the association’s legislative platform for the 2021 legislative session, to contact Amanda Gill at Amanda@faahq.org for more information.