The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Governmental Oversight and Accountability
BILL: CS/SB 344
INTRODUCER: Governmental Oversight and Accountability Committee and Senator Diaz
SUBJECT: Legislative Review of Occupational Regulations
DATE: March 17, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McVaney McVaney GO Fav/CS
2. AP
3. RC
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 344 subjects over 75 occupational regulatory programs currently administered in Florida
to legislative review over a four-year period. The bill states that it is the intent of the legislature
to review each program to determine whether (a) to continue the program unchanged, (b) to
continue the program with changes; or (c) to repeal the particular occupational regulatory
program.
The bill provides that, except as otherwise provided in the act, the act takes effect upon
becoming a law.
II. Present Situation:
Occupational Licensing
An occupational or professional license is a form of regulation that requires individuals who
want to perform certain types of work, such as contractors and cosmetologists, to obtain
permission from the government to perform the work. Generally, an individual obtains such
permission by demonstrating that they have the designated knowledge, skills, and abilities to
perform the work by meeting pre-determined criteria established by the government, such as
work experience and examinations. If the individual successfully completes the pre-determined
criteria, the government issues the individual a license, which allows them to perform the work.
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Various governmental entities and agencies in Florida license and regulate such individuals
practicing in a wide range of professions, including:
 Department of Business and Professional Regulation (DBPR);
 Department of Health (DOH);
 Department of Financial Services (DFS);
 Department of Agriculture and Consumer Services (DACS);
 Florida Supreme Court (FSC);
 Department of Environmental Protection (DEP);
 Agency for Healthcare Administration (AHCA);
 Department of Children and Families (DCF);
 Department of Elder Affairs (DEA);
 Department of Highway Safety and Motor Vehicles (DHSMV); and
 Office of Financial Regulation (OFR).
Sunset Reviews of Occupations and Professions
A sunset review is a clause within a statute or regulation requiring the statute or regulation to
expire on a certain date unless the legislature takes action to renew the statute or regulation. A
sunset review allows regulations to be periodically examined to determine if they are necessary
or if they need to be changed, improved, or reduced. Sunset reviews can be useful, because even
if a regulation was justified when first introduced, technological and economic advancements
may have made the regulation unnecessary or overly burdensome.1 Thirty-six states have some
form of sunset process for existing occupational licensing laws, ranging from automatic program
reviews and repeals, to sunset recommendations made from a commission to the state
legislature.2
Sunset Reviews of Occupations and Professions in Florida
In 1976, the Florida Legislature enacted The Regulatory Reform Act (the Act).3 The Act set up a
sunset review process which called for a systematic, cyclical review and repeal of statutes related
to the regulatory functions of the executive branch, including statutes regulating professions,
occupations, businesses, and industries. In 1978, The Sundown Act was enacted as a supplement
to the sunset review law to set up a review for boards of trustees, commissions, and advisory
bodies that were connected to executive agency functions.4
1
White House Report, supra note 1 at 48-49; Improving Occupational Licensing with Sunrise and Sunset Reviews, National
Conference of State Legislatures, (July 2018), http://www.ncsl.org/research/labor-and-employment/improving-occupational-
licensing-with-sunrise-and-sunset-reviews.aspx (last visited March 12, 2021); Council on Licensure & Regulation, Sunrise,
Sunset and State Agency Audits, https://www.clearhq.org/page-486181 (last visited March 12, 2021); Brian Baugus & Feler
Bose, Sunset Legislation in the States: Balancing the Legislature and the Executive, Mercatus Center, George Mason
University (August 2015) https://www.mercatus.org/publications/regulation/sunset-legislation-states-balancing-legislature-
and-executive (last visited March 12, 2021).
2
Improving Occupational Licensing with Sunrise and Sunset Reviews, National Conference of State Legislatures, (July
2018), http://www.ncsl.org/research/labor-and-employment/improving-occupational-licensing-with-sunrise-and-sunset-
reviews.aspx (last visited March 12, 2021).
3
Chapter 1976-168, L.O.F. (codified as s. 11.61, F.S.)
4
Chapter 1978-323, L.O.F. (codified as s. 11.611, F.S,)
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The law required certain committees within the Legislature to perform an in-depth review and
make a recommendation for the continuation, modification, or repeal of certain occupational
regulatory programs. The recommendation needed to consider the following criteria:5
 Would the absence of the regulation significantly harm or endanger the public health, safety,
or welfare?
 Is there a reasonable relationship between the exercise of the police power of the state and
the protection of the public health, safety, and welfare?
 Is there a less restrictive method of regulation available that would adequately protect the
public?
 Does the regulation have the effect of directly or indirectly increasing the costs of any goods
or services involved, and, if so, to what degree?
 Is the increase in cost more harmful to the public than the harm that would result from the
absence of regulation?
 Are any facets of the regulatory process designed for the purpose of benefitting, and do they
have as their primary effect the benefit of, their regulated entity?
During the sunset review process, if any program was allowed to expire, the personnel positions
responsible for carrying out the program were abolished, and all unexpended balances of
appropriations, allocations, or other funds for such program were reverted to the fund from
which they were appropriated, or, if that fund was abolished, to the General Revenue Fund. Any
remaining unencumbered revenue collected under a repealed occupational regulatory program
were to be refunded on a pro rata basis by the Comptroller (now the Chief Financial Officer),
upon request of the person or entity who paid, if such request was made within one year after the
repeal of the program.6
The Act also provided that any cause of action pending on the date any program was repealed, or
any cause of action brought thereafter, was to be prosecuted or defended in the name of the state
by the Department of Legal Affairs. All regulatory activities related to the repealed program
were to cease after the date of repeal.7
In 1991, the Senate Committee on Government Operations (SCGO) performed a review of the
sunset and sundown laws. SCGO found that between 1977 and 1991, 240 program sunset
reviews were completed. During that time period, an estimated 20 regulatory laws were repealed,
and 50 new ones were created. Based on the mandatory nature of the in-depth review process, it
was found that the costs of the sunset reviews were high in terms of legislative and executive
agency staff time. The SCGO report also found that the initial reviews of regulatory programs
were more useful than any second or subsequent reviews.8
In light of the SCGO findings, the sunset reviews for occupations, professions, businesses, and
industries under the Regulatory Reform Act, and entities under The Sundown Act, were repealed
5
Section 11.61(6), F.S. (1991).
6
Section 11.61(7)-(8), F.S. (1991).
7
Section 11.61(9), F.S. (1991).
8
Florida Senate Committee on Government Operations, Staff Analysis of 1991 Senate Bill 28-D, note 8, at 3 (Dec. 11,
1991).
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in 1991. There has not been a comprehensive sunset review process specifically for occupational
licensing schemes since.9
Preemption
Local governments have broad authority to legislate on any matter that is not inconsistent with
federal or state law. A local government enactment may be inconsistent with state law if (1) the
Legislature has preempted a particular subject area or (2) the local enactment conflicts with a
state statute. Where state preemption applies, it precludes a local government from exercising
authority in that particular area.10
Florida law recognizes two types of preemption: express and implied. Express preemption
requires a specific legislative statement; it cannot be implied or inferred.11 Express preemption of
a field by the Legislature must be accomplished by clear language stating that intent.12 In cases
where the Legislature expressly or specifically preempts an area, there is no problem with
ascertaining what the Legislature intended.13 Implied preemption is “a more difficult concept.”14
Implied preemption will be found to exist in those circumstances where the state “legislative
scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong
public policy reasons exist for finding such an area to be preempted by the Legislature. 15 Thus,
implied preemption is actually a decision by the courts to create preemption in the absence of an
explicit legislative directive.16 Implied preemption is generally disfavored by courts and the
Supreme Court has emphasized that it can be found only “so long as it is clear that the legislature
has clearly preempted local regulation of the subject.”17 In cases determining the validity of
ordinances enacted in the face of state preemption, the effect has been to find such ordinances
null and void.18 Implied preemption is found where the local legislation would present the danger
of conflict with the state's pervasive regulatory scheme.19
III. Effect of Proposed Changes:
Section 1 provides that this act may be cited as the “Occupational Regulation Review Act.”
Section 2 creates s. 11.65, F.S., to provide legislative intent that each occupational regulatory
program be reviewed by the Legislature based on the review schedule set out in sections 3
through 6.
9
Ch. 91-429, Laws of Fla. Between 2006 and 2011, there was another systematic and scheduled sunset review process which
included occupational regulatory programs, but that review process was applicable to every aspect of state agencies as a
whole. That process was repealed in 2011. Ch. 2011-35, Laws of Fla.
10
Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009).
11
See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894
So.2d 1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So.3d 309 (Fla. 2008).
12
Mulligan, 934 So.2d at 1243.
13
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So.3d 880, 886 (Fla. 2010).
14
Tallahassee Mem'l Reg'l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996).
15
Id. (citations omitted)
16
Phantom of Clearwater, Inc., 894 So.2d at 1019.
17
Mulligan, 934 So.2d at 1243.
18
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
19
Sarasota Alliance for Fair Elections, Inc., 28 So.3d at 886.
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This section states that it is the intent of the legislature to complete a systematic review of the
costs and benefits of certain occupational regulatory programs prior to the date set for repeal to
determine whether the program should be allowed to expire, be fully renewed, or be renewed
with modifications.
The section defines the following terms:
 "Occupational regulatory program" or "program" means any statutory regulatory provision or
scheme which places a condition on practicing an occupation, including, but not limited to,
programs that require a license, certification, registration, or credential.
 "Occupation" means a paid job, profession, work, line of work, trade, employment, position,
post, career, field, vocation, or craft.
Section 3 schedules the following regulatory statutes for legislative review by July 1, 2022:
 Sections 25.383 and 25.386, F.S., authorizing the Florida Supreme Court to regulate Court
Reporters and Foreign Language Court Interpreters;
 Ch. 310, F.S., authorizing the Department of Business and Professional Regulation (DBPR)
to regulate harbor pilots;
 Section 320.8249, F.S., authorizing the Department of Highway Safety and Motor Vehicles
(DHSMV) to regulate mobile home installers;
 Ch. 326, F.S., authorizing DBPR to regulate yacht and ship brokers;
 Part VI of ch. 468, F.S., authorizing the DBPR to regulate auctioneers and auctioneer
apprentices;
 Part VII of ch. 468, F.S., authorizing the DBPR to regulate talent agencies;
 Part VIII of ch. 468, F.S., authorizing the DBPR to regulate community association
managers;
 Part IX of ch. 468, F.S., authorizing the DBPR to regulate athlete agents;
 Part XIII of ch. 468, F.S., authorizing the DOH to regulate athlete trainers;
 Chapter 488, F.S., authorizing the DHSMV to regulate commercial driving schools;
 Sections 554.104 and 554.114(1)(d), F.S., authorizing the Department of Financial Services
(DFS) to regulate Boiler Safety Inspectors; and
 Sections 627.7015(4) and 627.7074(1)(a), F.S., authorizing the DFS to regulate property
insurance mediators and neutral evaluators.
Section 4 schedules the following regulatory statutes for legislative review by July 1, 2023:
 Section 61.125, F.S., authorizing the Florida Supreme Court to regulate parenting
coordinators;
 Part III of ch. 373, F.S., authorizing the Department of Environmental Protection (DEP) to
regulate water wells and water well contractors;
 Section 399.01(16), F.S., authorizing the DBPR to regulate elevator safety professionals;
 Part XI of ch. 468, F.S., authorizing the DBPR to regulate employee leasing companies;
 Part XV of ch. 468, F.S., authorizing the DBPR to regulate home inspectors;
 Part XVI of ch. 468, F.S., authorizing the DBPR to regulate mold-related services
professionals;
 Sections 497.144, 497.145, 497.147, 497.148, 497.168, 497.554, 497.602, 497.603, and
497.605, and Part III of ch. 497, F.S., (except ss. 497.380-.389 and 497.391-.393),
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authorizing the DFS to regulate funeral directors and embalmers, monument establishment
sales representatives, and direct disposers;
 Sections 501.605, 501.607, 501.608, 501.609, 501.612, and 501.616(2) and (4), F.S.,
authorizing the Department of Agriculture and Consumer Services (DACS) to regulate
commercial telephone sellers and entities;
 Chapter 507, F.S., authorizing the DACS to regulate intrastate movers and moving brokers;
 Section 517.12(1) and (4), F.S., authorizing the DFS to regulate associated persons of a
securities dealer and associated persons of a state-registered investment advisor or federal
covered advisor;
 Section 548.003, F.S., establishing the Florida State Boxing Commission;
 Section 548.017, F.S., requiring certain persons involved in a match to be licensed; and
 Sections 634.171, 634.318, 634.320, and 634.420, F.S., authorizing the DFS to regulate
service warranty sales representatives, motor vehicle service agreement salespersons, and
home warranty sales representatives.
Section 5 schedules the following regulatory statutes for legislative review by July 1, 2024:
 Section 44.106, F.S., authorizing the Florida Supreme Court to regulate mediators and