Founding Partner Robert F. Lewis Speaks to Law360 on "Florida Legislation To Watch In 2021"

January 4, 2021

The crisis has upended agendas at what is also a time of political transition, with new leaders in the Legislature and changing dynamics following the Nov. 3 election. But experts told Law360 that the tumult of 2020 may also bring focus to the task ahead and could lead to substantial policy achievements.

“I think anytime you’re in crisis mode, it has a tendency to unite people so that everybody is rowing the same direction,” said Beth Vecchioli, a senior policy adviser on Holland & Knight LLP’s Florida government advocacy team.

Here is what the experts say to watch for in Tallahassee this year.

In normal times, looking ahead to the 2021 legislative session, which is scheduled to begin on March 2, would mean examining the priorities set by incoming House Speaker Chris Sprowls, R-Palm Harbor, and Senate President Wilton Simpson, R-Trilby, and analyzing how they’ll mesh with Gov. Ron DeSantis, a fellow Republican, and be influenced by the recent state and national elections.

Instead, the priorities have largely been set for the new leaders. A multibillion-dollar budget shortfall has pushed its way to the top of the list, followed by a variety of other pandemic-related issues.

Experts said they don’t envy the position Simpson and Sprowls find themselves in, which some compared to the aftermath of a major hurricane, except across the entire state.

“They’re being called to take office in a challenging time,” Richard Pinsky, public policy manager for Akerman LLP, said. “I think they’re both up to it, but it is unfortunate that at least their first session is going to be defined by the pandemic.”

The relatively smooth manner in which the two branches have collaborated on the emergency response during the past nine months is also expected to portend a smoother session.

“If you can have enhanced trust and mutual respect and communication, that almost always makes it easier to deal with the inevitable friction points,” said former House Speaker Dean Cannon, who is now GrayRobinson PA’s president and CEO as well as chair of government affairs at the firm.

Cannon and others said Republicans’ strong showing in the election — picking up five state House seats and one state Senate seat alongside President Donald Trump’s 3-point victory in the state — showed Florida is now a solidly red state, but the former speaker also said he was encouraged to hear the new leaders express interest in looking outside of their party’s traditional scope at policy issues such as the environment and prenatal and maternal health in minority communities.

“It’s a great sign to me that leaders in both chambers are saying, ‘Hey, OK, we have strong majorities, but let’s do things that cross party lines,'” Cannon said. “I think that that bodes well for the session. The picture may or may not be any better, but they’ll have more data to make decisions on, and that typically produces better results in the long term.”

The experts said it is undeniably a “blessing” that under the Legislature’s alternate-year schedule, this year’s 60-day session starts in March, not January, as the extra time will allow for better data to be amassed on COVID-19, the distribution of vaccines, and economic trends.

Getting their priorities in order is just part of the equation for lawmakers, as many questions loom about the logistics of running a legislative session during a pandemic. For the organizational session on Nov. 17, face masks and temperature checks were required, and only newly elected members could bring guests.

“I just don’t see any scenario where the Legislature is not operating under COVID restrictions that are going to impact how the public and lobbyists and interest groups interact with the Legislature,” said Hayden Dempsey, chair of the Florida government law and policy practice at Greenberg Traurig LLP.

In late December, the two chambers announced restrictions on in-person access for the public at committee meetings, and leadership encouraged members to limit individual appointments or hold them virtually.

Those limited interactions may prove especially challenging with time lost as committee meetings were pushed back from November and December to start on Jan. 11, Pinsky said.

“Session is such a minute-by-minute process that losing a day could mean a lot,” he said.

Balancing the Budget

Lawmakers often like to note that the one task the Florida Constitution requires them to complete is to pass a balanced budget. With state officials projecting revenue shortfalls of between $3 billion and $6 billion over the next two years thanks to fallout from the pandemic, that imperative is even more clearly the top priority for 2021, experts said.

But while there are sure to be many hard decisions with COVID-19 having had a “huge impact on almost everything that the state does,” as Greenberg Traurig’s Dempsey put it, he and others suggested that things may not prove to be as bad as they seemed earlier in the outbreak.

“Going into session, the legislators are expecting for it to be a very lean year — and it will be — but I think the story coming out of it is going to be that it’s not going to be nearly as lean as either currently projected or certainly not what was projected back in April,” Dempsey said.

Indeed, Florida’s Office of Economic & Demographic Research reported in October that the state’s revenue collection actually surpassed its pre-pandemic expectations and essentially matched its October 2019 numbers.

Cannon, whose 2010-12 term as House speaker started in the depths of the Great Recession, expressed similar optimism about the state’s economy, despite it being hit especially hard by the pandemic due to its heavy reliance on tourism.

Florida’s balanced-budget law provides reassurance against heading down a path of deficit spending, and the state’s low bureaucratic and tax burdens help make it agile, he said. And the current downturn, which he described as a “shock recession,” differs from the Great Recession in that it came about because of a sudden but identifiable enemy in the virus, in contrast to the systemic distortions in mortgage lending that existed in 2008.

“If the legislative leadership is thoughtful, and I think they will be, they’ll produce a budget that will enable Florida to bounce back more quickly from the recession once things start picking back up again,” he said.

Gus Corbella, senior director of the government law and policy practice at Greenberg Traurig, said one thing to watch is how the Legislature handles the growing costs incurred by safety-net hospitals, nursing homes and assisted living facilities, along with Medicaid costs that a mid-December state forecast said are spiraling upward as enrollments climb.

Several sources also predicted funding for higher education to be scrutinized, prompted by rising costs and the shift to online learning forced by the pandemic.

In their quest to boost revenue, lawmakers may look to increase enforcement of online sales tax collection and attempt to negotiate a new gaming compact with the Seminole Tribe, each of which could bring several hundred millions of dollars to the state annually, experts said. The House has been cool to the idea of expanding gambling in the state, however, and could reject that idea, Pinsky said.

Confronting COVID-19

Along with tackling the budget, the Legislature is expected to prioritize legislation that will directly address pandemic-related issues.

It is widely expected to consider providing tort protections, or liability immunity, for essential businesses to shield them from injury claims from people who catch COVID-19 while visiting their premises.

“Unless there’s gross negligence — which of course everyone should have the right to sue for gross negligence — they’re asking for some sort of immunity protection from these lawsuits, because, depending upon how big the business is, a number of these lawsuits could cripple and potentially bankrupt businesses,” Holland & Knight’s Vecchioli said.

Florida Chief Financial Officer Jimmy Patronis has toured businesses around the state to push for these protections, but Pinsky said the chambers may disagree on what form they should take.

“I don’t think the Senate will go as far as whatever the House comes up with,” he said.

Another litigation-centered issue that has received a lot of attention is whether COVID-19 coverage is due under business interruption insurance policies, but Vecchioli, who is a former insurance regulator, said she thinks a federal solution is needed.

“This is a problem for the whole country,” she said. “Based on the number of claims and the dollar amount of claims that potentially could get filed on these type of policies, it would bankrupt the entire insurance industry.”

On the health care front, expansion of telemedicine is likely to be a hot topic, several experts said.

“I think you’ll see more and more of that, not only as a cost-saving measure but as something that COVID has forced us to accept as it being a feasible way to receive health care,” Corbella said.

Some experts also pointed to a “cocktails-to-go” bill filed by Sen. Jeff Brandes, R-St. Petersburg, which aims to either temporarily extend or make permanent an emergency order allowing restaurants to sell packaged alcoholic beverages for takeout, as an example of the kind of creative thinking lawmakers are going to need to employ to help businesses.

Robert Lewis of Spiritus Law, whose practice focuses on laws governing the alcohol industry, described the rule as a “lifeline” generating additional revenue for restaurants, which he noted also had to incur numerous additional expenses to comply with safety regulations.

“The issue is not just weathering the storm for once the pandemic starts to subside or recede. You know, it’s basically being able to maintain, to grow and thrive over the next few years to recoup the losses that they had,” he said.

Another way lawmakers could help businesses would be by reviewing regulations to see where they can ease burdens and costs without compromising safety, Corbella said.

They also have discussed looking at issues related to helping the workforce, including addressing problems the state experienced in its unemployment system as claims spiked, with Democrats likely to push for reform on that, experts said. Affordable housing is expected to be a focus as well. Protecting the state’s dedicated trust fund will be an issue in the budget debate, and bills filed in both chambers aim to provide funds and other incentives at the county and local levels and encourage collaboration with private entities to expand production.

Beyond COVID-19

While it may seem like issues related to COVID-19 and the accompanying recession will overwhelm the session, experts said they expect lawmakers will manage to address some other pressing topics.

During their speeches in the organizing session, the incoming speaker and Senate president both mentioned climate change, an issue the Republican party has not exactly addressed head-on in the past, experts said.

“In a state that’s surrounded on three sides by water, where our quality of life is so dependent on salt water not intruding into the aquifer or South Florida flooding every time that there’s a rainstorm, I think the quality of life issue has really jumped to the forefront,” Corbella said. “People understand that for whatever debate there might be over the science of this, it’s an issue that is impacting our communities fairly regularly now. And if Florida is going to be a viable state, it’s definitely something that’s going to have to be dealt with.”

They may find a receptive partner in DeSantis, who has in the past modeled himself as a Teddy Roosevelt-style Republican, with environmental issues among his main priorities. When he vetoed $1 billion from the 2020-21 budget because of the pandemic, he preserved funds for water projects aimed at green algae, red tide and spring restoration.

The Legislature is also expected to look at law enforcement issues in the wake of 2020’s nationwide outcry over racial and social injustice, although experts said it was unclear what sort of initiatives may advance.

A bill drafted by DeSantis that would expand the state’s controversial “Stand Your Ground” law and establish felony crimes for damage caused during protests has drawn criticism from some corners, but also has received support from Republicans in both chambers and is likely to move forward, Dempsey said.

A number of insurance-related issues are also likely to resurface, including a bid to repeal personal injury protection insurance, which has been linked to fraud and driven up costs in the state, Vecchioli said. Reform of assignment of benefits rules for auto glass replacement claims fell out of a bill passed in 2019 that focused on assignment of benefits for property damage, but it is still a problem, she said.

Lawmakers also may revisit efforts to create a new regulatory framework to provide safeguards for the growing field of litigation financing, Vecchioli said.

Other issues could still move to the forefront, especially if they might provide additional sources of revenue or help ease the challenges facing businesses or workers, experts said.

“Every session, wonderfully, is a time-limited event. … And if you can’t get your bill or your priority or issue through all the committee stops in the House and in the Senate and to the floor in the House and the Senate and sent to the governor, it dies,”  Cannon said. “So literally every issue is competing with every other issue for that finite amount of time. I’m sure there will be things that won’t make it because they just didn’t rise to the level of, ‘OK, we’ve got to get this done.’ But it’s too soon to predict.”


About Spiritus Law:

Spiritus Law is an entrepreneurial regulatory and business law firm focused on the representation of highly regulated industries by offering legal services in the areas of alcohol and tobacco law, federal, state and local regulatory and business licensing, hospitality law and licensing, commercial and residential real estate development, land use and zoning, real estate transactions, government relations, banking and lending, general commercial retail including the retail sale of regulated products and public/private partnership transactions. The Firm is founded on traditional principles of client counseling and teamwork with a cutting-edge twist on regulatory innovation and modern problem-solving. Spiritus Law combines a unique blend of professionals, including attorneys, government consultants, licensing assistants and paralegals to assist its diverse clients. Our modern approach to transparent client representation and employee engagement defines our collaborative spirit and progressive energy.

Core Services:

Primary service areas include: Alcohol Licensing & Regulatory Compliance, Retail & Hospitality Licensing & Permitting, Real Estate Transactions & Commercial Development, Firearms & Security Compliance, Public/Private Infrastructure &Development, Tobacco Product Regulatory Compliance, and Business Transactions & Financial Services. Our firm services an array of highly regulated industries, including alcohol producers, sports teams, hotels, restaurants, theme parks, movie theaters, grocery stores, liquor stores, bars, residential and commercial real estate developers, state agencies, municipal governments, investment firms and individual investors, lending institutions, security service providers, firearms suppliers and more.