HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 995 Civil Actions Involving Assisted Living Facilities
SPONSOR(S): Civil Justice Subcommittee, Chamberlin
TIED BILLS: IDEN./SIM. BILLS: SB 238
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice Subcommittee 12 Y, 5 N, As CS Mawn Jones
2) Select Committee on Health Innovation
3) Judiciary Committee
SUMMARY ANALYSIS
The main purpose of Florida’s civil justice system is to properly and fairly redress the civil wrongs caused
throughout the state, whether such wrongs be in the form of tortious conduct, breaches of contract, or other
non-criminal harm for which the law provides a remedy. The civil justice system accomplishes this by providing
a neutral court system empowered to decide the amount of monetary damages required to make each
wronged person whole again, to the extent possible.
The Assisting Living Facilities Act (“Act”), codified in Part I of ch. 429, F.S., governs assisted living facilities
(“ALFs”) to promote the availability of appropriate services for elderly persons and adults with disabilities in the
least restrictive and most homelike environment; to encourage the development of facilities that promote the
dignity, individuality, privacy, and decision-making of such persons; to provide for the health, safety, and
welfare of ALF residents in Florida; to promote continued improvement of ALFs; to encourage the development
of innovative and affordable ALFs, particularly for persons with low to moderate incomes; to ensure that all
state agencies cooperate in the protection of such residents; and to ensure that needed economic, social,
mental health, and leisure services are made available to ALF residents.
Under the Act, no ALF resident may be deprived of any civil or legal rights, benefits, or privileges guaranteed
by law, the Florida Constitution, or the United States Constitution. To that end, the Act provides a Resident Bill
of Rights and vests any person or ALF resident whose rights (as specified in the Act) are violated with a civil
cause of action. Such action may be brought in any court of competent jurisdiction, after compliance with the
Act’s pre-suit notice requirements, by the resident or other specified parties; and the claimant may seek actual
and, in some instances, punitive damages.
CS/HB 995 amends ss. 429.29 and 429.297, F.S., to:
 Limit whom a civil cause of action for negligence or a violation of an ALF resident’s rights may be
brought against under the Act.
 Specify when a claimant must elect survival or wrongful death damages if the action alleges a claim for
a violation of an ALF resident’s rights or for negligence that caused the resident’s death.
 Revise the requirements for a punitive damages award in a civil action brought under the Act.
The bill does not appear to have a fiscal impact on state or local government.
The bill provides an effective date of July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
The Civil Justice System
The main purpose of Florida’s civil justice system is to properly and fairly redress the civil wrongs
caused throughout the state, whether such wrongs be in the form of tortious conduct, breaches of
contract, or other non-criminal harm for which the law provides a remedy. The civil justice system
accomplishes this by providing a neutral court system empowered to decide the amount of m onetary
damages required to make each wronged person whole again. A functioning civil justice system, when
it operates justly:
 Provides a fair and equitable forum to resolve disputes;
 Discourages persons from resorting to self-help methods to redress wrongs;
 Appropriately compensates legitimately harmed persons;
 Shifts losses to responsible parties;
 Provides incentives to prevent future harm; and
 Deters undesirable behavior.1
One of the goals of the civil justice system is to redress tortious conduct, or “torts.” A tort is a wrong for
which the law provides a remedy. Torts are generally divided into two categories, as follows:
 An intentional tort, examples of which include an assault, a battery, or a false imprisonment.
 Negligence, which is a tort that is unintentionally committed. To prevail in an ordinary
negligence2 lawsuit, the party seeking the remedy must prove four elements: duty, breach,
causation, and damages.3
Duty of Care
The first of the four elements a plaintiff must prove to prevail in a negligence action is that the
defendant owed the plaintiff a "duty of care" to do something or refrain from doing something. The
existence of a legal duty is a threshold requirement that, if satisfied, “merely opens the courthouse
doors.”4 Whether a duty sufficient to support a negligence claim exists is a matter of law 5 determined by
the court.6 A duty may arise from various sources, including:
 Legislative enactments or administrative regulations;
 Judicial interpretations of such enactments or regulations;
 Other judicial precedent; and
 The general facts of the case.7
In determining whether a duty arises from the general facts of the case, courts look to whether the
defendant’s conduct foreseeably created a “zone of risk” that posed a general threat of harm to
others—that is, whether there was a likelihood that the defendant’s conduct would result in the type of
1 Cf. Am. Jur. 2d Torts s. 2.
2
Negligence may be ordinary negligence, in which the defendant’s conduct must be evaluated for reasonableness, or negligence per
se. Negligence per se is negligence as a matter of law – in other words, it is a legal doctrine that presumes a defendant was negligent
when he or she violated a law, rule, or regulation that imposed a duty or prohibited an act to protect a particular class of persons. In a
negligence per se claim, the plaintiff need only prove that the defendant’s violation was the cause in fact and the proximate cause of the
plaintiff’s injury. DeJesus v. Seab oard Coast Line R. Co., 281 So. 2d 198 (Fla. 1973).
3 6 Florida Practice Series s. 1.1; see Barnett v. Dept. of Fin. Serv., 303 So. 3d 508 (Fla. 2020).
4 Kohl v. Kohl, 149 So. 3d 127 (Fla. 4th DCA 2014).
5 A matter of law is a matter determined by the court, while a matter of fact must generally be determined by the jury. Matters of law
include issues regarding a law’s application or interpretation, issues regarding what the relevant law is, and issues of fact re s e rve d fo r
judges to resolve. Legal Information Institute, Question of Law, https://www.law.cornell.edu/wex/question_of_law (last visited Feb. 1,
2024); Legal Information Institute, Question of Fact, https://www.law.cornell.edu/wex/Question_of_fact (last visited Feb. 1, 2024).
6 Kohl, 149 So. 3d at 135; Goldb erg v. Fla. Power & Light Co., 899 So. 2d 1110 (Fla. 2005).
7 Goldb erg, 899 So. 2d at 1105 (citing Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003)).
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 injury suffered by the plaintiff.8 Such zone of risk defines the scope of the defendant’s legal duty, which
is typically to either lessen the risk or ensure that sufficient precautions are taken to protect others from
the harm the risk poses.9 However, it is not enough that a risk merely exists or that a particular risk is
foreseeable; rather, the defendant’s conduct must create or control the risk before liability may be
imposed.10
Breach of the Duty of Care
The second element a plaintiff must prove is that the defendant "breached," or failed to discharge, the
duty of care. Whether a breach occurred is generally a matter of fact for the jury to determine. 11
Causation
The third element a plaintiff must prove is that the defendant's breach of the duty of care "proximately
caused" the plaintiff's injury. Whether or not proximate causation exists is generally a matter of fact for
the jury to determine.12
Florida follows the “more likely than not” standard in proving causation; thus, the inquiry for the
factfinder is whether the defendant’s negligence probably caused the plaintiff’s injury. 13 In making such
a determination, the factfinder must analyze whether the injury was a foreseeable consequence of the
danger created by the defendant’s negligent act or omission.14 It is not required that the defendant’s
conduct be the exclusive cause, or even the primary cause, of the plaintiff’s injury suffered; instead, the
plaintiff must only show that the defendant’s conduct substantially caused the injury. 15
Damages
The fourth and final element a plaintiff must prove to prevail in a negligence action is that the plaintiff
suffered some harm, or "damages." Juries award “actual damages” to compensate an injured person
for the damages the person actually suffered due to the defendant’s negligence.16 Such damages
consist of both:
 “Economic damages,” which are financial losses that can be easily quantified (such as lost
wages, the cost to replace damaged property, or the cost of medical treatment); and
 “Non-economic damages,” which are nonfinancial losses that cannot be easily quantified (such
as pain and suffering, inconvenience, physical impairment, mental anguish, disfigurement, and
loss of the capacity to enjoy life).17
In certain limited situations, a court may also award “punitive damages,” the purpose of which is to
punish a defendant for bad behavior and deter future bad conduct, rather than to compensate the
plaintiff for a loss.18
8
Kohl, 149 So. 3d at 135 (citing McCain v. Fla. Power Corp., 593 So. 2d 500 (Fla. 1992); Whitt v. Silverman, 788 So. 2d 210 (Fla.
2001)).
9 Kohl, 149 So. 3d at 135; Whitt, 788 So. 2d at 217.
10 Bongiorno v. Americorp, Inc., 159 So. 3d 1027 (Fla. 5th DCA 2015) (citing Demelus v. King Motor Co. of Fort Lauderdale, 24 So. 3d
759 (Fla. 4th DCA 2009)).
11 Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009).
12 Sanders v. ERP Operating Ltd. P’ship, 157 So. 3d 273 (Fla. 2015).
13 Ruiz v. Tenent Hialeah Healthsystem, Inc., 260 So. 3d 977 (Fla. 2018).
14 Id. at 981-982.
15 Id. at 982.
16 Birdsall v. Coolidge, 93 U.S. 64 (1876); St. Regis Paper Co. v. Watson, 428 So. 2d 243 (Fla. 1983).
17 Cf. s. 766.202(8), F.S.
18 See ss. 768.72, 768.725, and 768.73, F.S. (providing standards and requirements for awarding punitive damages).
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 Assisted Living Facilities
The Assisting Living Facilities Act (“Act”), codified in Part I of ch. 429, F.S., governs assisted living
facilities (“ALFs”) to:
 Promote the availability of appropriate services for elderly persons and adults with disabilities in
the least restrictive and most homelike environment;
 Encourage the development of facilities that promote the dignity, individuality, privacy, and
decision-making of such persons;
 Provide for the health, safety, and welfare of ALF residents in Florida;
 Promote continued improvement of ALFs;
 Encourage the development of innovative and affordable ALFs, particularly for persons with low
to moderate incomes;
 Ensure that all state agencies cooperate in the protection of such residents; and
 Ensure that needed economic, social, mental health, and leisure services are made available to
ALF residents through the efforts of the Agency for Health Care Administration (“AHCA”), the
Department of Elderly Affairs (“DOEA”), the Department of Children and Families (“DCF”), the
Department of Health (“DOH”), ALFs, and other community agencies.19
Licensing
ALFs must generally be licensed by AHCA to operate in Florida, unless an exception applies. 20 Each
applicant for licensure must comply with all provisions of Part II of chapter 408, Florida Statutes,
relating to general provisions for health care licensing, and:
 Identify all other homes or facilities, including the address and the license or licenses under
which they operate, if applicable, which are currently operated by the applicant or administrator
and which provide housing, meals, and personal services to residents;
 Provide the location of the facility for which a license is sought and documentation, signed by
the appropriate local government official, which states that the applicant has met local zoning
requirements;
 Provide the name, address, date of birth, social security number, education, and experience of
the administrator,21 if different from the applicant;
 Provide proof of liability insurance;
 If the applicant is a community residential home, 22 provide proof that the applicant has met the
requirements of ch. 419, F.S., relating to such homes;
 Furnish proof that the facility has received a satisfactory fire safety inspection; and
 Furnish documentation of a satisfactory sanitation inspection of the facility by the county health
department.23
Separate licenses are required for ALFs maintained in separate premises, even though operated under
the same management, but a separate license is not required for separate buildings on the same
grounds.24 A license must be displayed in a conspicuous place readily visible to clients who enter at the
address that appears on the license and is valid only in the hands of the licensee to whom it is issued;
thus, a license may not be sold, assigned or otherwise transferred. 25 Further, a license must be
renewed in accordance with the Act and the provision of satisfactory proof of ability to operate and
conduct the ALF in accordance with the requirements of the Act and related rules.26
19
S. 429.01, F.S.
20 Exceptions exist for facilities operated by the federal government or any agency thereof and facilities licensed as some othe r type of
facility under Florida law (such as a nurs ing home licensed under Part II of chapter 400, F.S., an intermediate care facility licensed
under part VIII of chapter 400, or a transitional living facility licensed under part XI of chapter 400). S. 429.04, F.S.
21 “Administrator” means an individual at least 21 years of age who is responsible for ALF operation and maintenance. S. 429.02, F.S.
22 A “community residential home” is a dwelling unit licensed to serve residents who are clients of the DOEA, the Agency for Persons
with Disabilities, the Department of Juvenile Justice, or DCF or licensed by AHCA which provides a living environment for 7 t o 14
unrelated residents who operate as the functional equivalent of a family, including such supervision and care by supp ortive staff as may
be necessary to meet the residents’ physical, emotional, and social needs. S. 419.001, F.S.
23 Ss. 429.07 and 429.11, F.S.
24 S. 429.07, F.S.
25 S. 408.804, F.S.
26 S. 429.17, F.S.
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 Any person who knowingly alters, defaces, or falsifies a license certificate issued by AHCA, or causes
or procures any person to commit such an offense, commits a second-degree misdemeanor.27 Further,
any person who owns, rents, or otherwise maintains a building or property used as an unlicensed ALF
commits a third-degree felony, and each day of continued operation is a separate offense. 28 However,
any person found guilty of such an offense for a second or subsequent time commits a second-degree
felony.29 Administrative penalties may also apply where an ALF licensee or license applicant violates
the Act or any applicable rules, which penalties may include the denial, revocation, or suspension of
any ALF license and the imposition of an administrative fine. 30
Resident Bill of Rights
The Act provides that no ALF resident may be deprived of any civil or legal rights, benefits, or privileges
guaranteed by law, the Florida Constitution, or the United States Constitution. 31 To that end, the Act
provides a Resident Bill of Rights 32 giving every ALF resident the right to:
 Live in a safe and decent living environment, free from abuse or neglect.
 Be treated with consideration and respect and with due recognition of personal dignity,
individuality, and the need for privacy.
 Retain and use his or her own clothes and other personal property in his or her immediate living
quarters, so as to maintain individuality and personal dignity, except when the facility can show
that such would be unsafe, impractical, or an infringement upon other residents’ rights.
 Unrestricted private communication, including receiving and sending unopened
correspondence, access to a telephone, and visiting with any person of his or her choice, at any