Legislative Insider’s Report 

2017 Legislative Session – Week 7 of 9

The question on everyone’s mind this week is “Will they or won’t they?”  Speculation is running rampant in the Capitol as to whether or not the Legislature will finish its business before the end of the normal 60-day session, which is May 5th.  There are a number of issues which have yet to be resolved, most importantly the budget.  We’ve heard that the Joint Legislative Budget Commission likely won’t meet until next Wednesday, which doesn’t give them much time to conduct their business.  The budget is the one thing that the Legislature must do each legislative session.  Another important issue before the Legislature this year is gambling in the state. The House and Senate seem to be miles apart on the issue and while the SunSentinel reported that the Gaming Conference Committee would be meeting on Thursday at 4 pm, it was never formally announced.  It was then canceled according to the SunSentinel once the Florida Supreme Court approved the language for a constitutional amendment which would require voter approval of the expansion of gambling in the state. 

Another issue that needs to be resolved this year is the implementation of Amendment 2, which legalized medical marijuana in the state.  Both House and Senate committees heard implementing bills for Amendment 2 this week.  The House bill bans smoking, vaping, and edibles and requires a doctor to have at least a 90-day relationship with a patient before marijuana can be prescribed.  Opponents to these measures said that these restrictions were unacceptable.  While some legislators agreed that 90 days is too long for patients to wait for medical marijuana, representatives were less willing to accept claims that Floridians voted for the right to smoke marijuana.  During debate, multiple members made it clear that some of the provisions would change when it goes to conference with the Senate.  The measure passed its second committee in a 16-8 vote, along party lines. It will likely be heard in its final committee next Monday.  

The Senate bill implementing medical marijuana is not identical to the House version and opponents’ comments centered around the limited licensing of medical marijuana growers and dispensaries.  The bill passed 6-1 and will likely be heard in its final committee next Tuesday (the last day of regularly scheduled committee meetings).  

Now for some of the bills that we’re most closely monitoring… 

GOOD BILLS

ADOPTION / FOSTER CARE 

HB 363 / SB 200 Temporary Respite Care for Families in Crisis
Sponsors: Rep. Frank White (R), Rep. Patricia Williams (D), Sen. Kathleen Passidomo (R)

This bill helps families in crisis by allowing parents to place their children with respite care families temporarily while they work to better the situation for the entire family (whether it is seeking treatment for addiction, finding a job, etc.) This program is for families where there are no allegations of abuse/neglect which would cause DCF to remove the children from their home.  

The Senate Judiciary Committee heard this bill on Wednesday. Once again, the Family Law Section of the Florida Bar testified against this good bill, essentially demanding the program be changed in order to support the bill; their requested changes would destroy the program by essentially expanding foster care and requiring government interference in this remarkable program.  While the Family Law Section claims they are only looking out for the best interest of children, their motives seem to be more about making sure their lawyers stay in business.  Despite Sen. Anitere Flores’ concerns with the bill it passed in a 6-2 vote.  This bill is scheduled to be heard in its final committee next Tuesday. 

LIFE 

HB 969 / SB 1130 Pregnancy Support Services 
Sponsors: Rep. Jackie Toledo (R) and Sen. Aaron Bean (R) 

This bill would require the Department of Health to contract with a network of crisis pregnancy centers to provide support services for women who suspect or know they are pregnant for the term of their pregnancy through the first year of the child’s life.  The services provided cannot be coercive nor contain religious content.

This bill was scheduled to be heard in the Appropriations Subcommittee on Health and Human Services committee on Tuesday, but due to a busy agenda and a medical emergency during the committee meeting meant that it was not considered.  According to Senate rules, the meeting could not be extended without a motion from the floor of the Senate.  Unfortunately, this means the bill is dead for the year as it was the committee’s final meeting of the year. 

EDUCATION 

HB 833 / SB 692 Revising Student Eligibility for Virtual School 
Sponsors: Rep. Jennifer Sullivan (R), Sen. Dennis Baxley (R)

This bill removes a requirement that 2nd through 5th graders be enrolled in a public school in the year prior to enrolling in virtual school.  

HB 833 is scheduled to be picked up the full House next Tuesday. 

HB 15 / SB 1314 Expanding the Florida Tax Credit Scholarship Program
Sponsors: Rep. Jennifer Sullivan (R), Sen. Denise Grimsley (R) 

This bill expands the students who are eligible for the Florida Tax Credit Scholarship Program.  

The House passed the bill on Wednesday in a 117-0 vote. 

HB 549 / SB 906 Publication of State Assessment Tests for Parental and Educational Review 
Sponsors: Rep. Randy Fine (R), Sen. Greg Steube (R), House PreK-12 Quality Subcommittee

This bill seeks to require the publication of certain state assessment tests every three years.  Currently, no one has access to the questions on these exams, including the Department of Education nor any government officials.  Students are being told that they cannot tell anyone the content of test questions, including their parents. 

During its final committee stop on Thursday, the House bill was amended to eliminate the state Algebra II end-of-course exam, require paper-based state language arts and math tests for third- through sixth-grade, move the state testing window to later in the spring, and shrink it to a shorter time frame and change the value-added model of evaluating teachers.  The bill was passed unanimously out of the Education committee.  SB 906 is dead for the year, but the amendment makes it similar to SB 926, which would eliminate more end-of-course exams, extend paper testing to more grades and detach the value-added model for teacher evaluations. That bill has cleared all of its committees and is ready to be picked up by the full Senate.

GAMING

HB 937 / SB 1370 Warnings for Lottery Games

Sponsors: Rep. Jennifer Sullivan (R), Sen. Keith Perry (R), House Tourism & Gaming Control Subcommittee

This bill would require a warning placed on lottery tickets that lottery games can be addictive.

The House bill was passed quickly out of its final committee on Wednesday in a 26-2 vote, with only Rep. Tom Goodson (R) and Rep. Richard Stark (D) voting no on the measure. 

The Senate version was passed out its second committee on Wednesday as well.  Members of the Senate Judiciary committee questioned the bill sponsor as to whether the warning could also print something like “For help, call…”. While that is not currently in the bill, it could be amended to the bill and would be a positive change to a good bill.  The vote was 5-3 with Sen. Audrey Gibson (D) once again commenting that the lottery is not gambling, but rather funding for education.   This bill may be scheduled for its final committee next Tuesday, the final day for regularly scheduled committee meetings. 

HUMAN TRAFFICKING 

HB 1383 / SB 852 Child Victims of Human Trafficking 
Sponsors: Rep. Jeanette Nuñez (R), Sen. Rene Garcia (R)

This bill seeks to help children who have been the victims of sex trafficking by requiring the Department of Children and Families (DCF) to maintain a database of services available for victims of commercial sexual exploitation, increases the situations in which a defendant’s confession may be used at trial, outlines procedures for assisting victims, and requires officials to follow up with victims within six months to evaluate services used and their effectiveness.

This bill is scheduled to be picked up by the full House next Tuesday.

HB 1165 / SB 972 Victims of Human Trafficking
Sponsor: Rep. Ross Spano (R), Sen. Randolph Bracy (D)

This bill allows victims of human trafficking to sue the individuals who engaged in their trafficking, including businesses who profited from their trafficking.

On Monday, this bill was heard in Senate Criminal Justice and passed favorably in a 7-0 vote.  The Senate Judiciary Committee scheduled this bill for its Wednesday meeting and also passed it in a 7-0 vote.  It will hopefully be heard in its final committee next week and move on to the Senate floor, despite its late movement during the legislative session.  

HB 1167 / SB 970 Florida Compensation Trust Fund for Survivors of Human Trafficking
Sponsor: Rep. Ross Spano (R), Sen. Randolph Bracy (D)

This bill establishes a trust fund to compensate victims and pay their legal fees, pay for human trafficking education and awareness training for communities, and advertise the national human trafficking hotline.  Finances for the trust fund will come from court penalties, civil actions, seizure of properties used by traffickers, and donations from outside sources or the Legislature. 

On Monday, this bill was heard in Senate Criminal Justice and passed favorably in a 7-0 vote.  The Senate Judiciary Committee scheduled this bill for its Wednesday meeting and also passed it in a 7-0 vote.  It will hopefully be heard in its final committee next week and move on to the Senate floor, despite its late movement during the legislative session.  

BAD BILLS 

LGBT RIGHTS

HB 623 / SB 666 Creating Special Rights for LGBT Citizens or “Florida’s Competitive Workforce Act” 
Sponsors: Rep. Ben Diamond (D), Rep. Rene Plasencia (R), Sen. Jeff Clemens (D)

The CWA adds sexual orientation and gender identity or expression to Florida’s Civil Rights Act of 1992 as impermissible grounds for discrimination. This bill provides a new way for LGBT individuals to sue employers and small businesses for discrimination and would allow men access to use women’s showers, locker rooms, bathrooms, women’s domestic violence shelters, etc.  

This bill which we have described as the worst bill proposed in the Florida Legislature due to its effect on public safety and religious liberty has not been scheduled to be heard in committee.  We continue to educate legislators on the dangers of this piece of legislation, and it continues to be dead on arrival despite some liberal Republican support. 

ALCOHOL

HB 81 / SB 106 Hard Liquor in Grocery Stores 
Sponsors: Rep. Bryan Avila (R), Sen. Anitere Flores (R)

Dubbed “Whiskey and Wheaties,” this bill would allow grocery stores and large retail stores to sell hard liquor in their main store rather than building or renting a separate store to sell liquor. 

While we previously believed this bill might be dead for the year, it may have been resurrected.  The bill is on the Special Order Calendar for next Tuesday. We hear the lobbying corps has been out there pounding the pavement working on members to get them to vote yes on this bad bill. 

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Sadly, last week one of our best friends in the Florida Senate, Anitere Flores (R-Miami), caved under pressure from leftist activist groups promising support and resources, and agreed to co-sponsor the worst bill in the Florida Legislature, the “Florida Competitive Workforce Act” (CWA).

Deceptively worded, this dangerous, anti-liberty proposal would create a new legally protected class for sexual orientation, gender identity and gender expression (SOGI) in Florida and place them at the same level of importance as  race, religion, national origin and age. These “non-discrimination” or “SOGI” bills are being actively pushed at the local, state, and national levels around the country, and where adopted, they have been used as weapons to punish Christians who simply want to live out their faith at work and in public.

These “non-discrimination” laws also give a legal defense to male predators, sexual offenders and voyeurs who choose to use a women’s bathroom, not because of their perceived sexual orientation or gender identity, but in order to violate the privacy, safety and security interests of women. It is a tragedy that Senator Flores has caved on principle and agreed to co-sponsor this bill in the upcoming 2017 Florida legislative session.  News story here.

Please Contact State Senator Flores today and tell her you are disappointed that she agreed to co-sponsor the Competitive Workforce Act and ask her to reconsider her support. 

Call Senator Flores at (305) 270-6550 or email her at flores.anitere.web@flsenate.gov. You can also tweet her at @anitere_flores.

Brief Background on Senator Flores (R-Miami):
Senator Flores is a wife and mother of two children who has served as a strong pro-life Republican state senator from Miami for 6  years. She also served in the Florida House for 6 years. She is Hispanic, Catholic and has attended and spoken at our Pro-Family Days Legislative Prayer Breakfast for several years.

Prior to learning about her co-sponsorship of the Competitive Workforce Act, FFA awarded Flores a 100% rating on our 2015-2016 legislative scorecard. In that same scorecard (published in August 2016), we issued major score demerits to Legislators who had supported the CWA in 2015 and 2016, calling it the “Worst Bill in the Florida Legislature.”

What caused this change of heart? Senator Flores district and many other Senate districts were recently redrawn by the Florida Supreme Court. Her district is a now a meandering boundary winding around South Florida and  into the Florida Keys, a hot-bed of liberal and gay activism. We believe she was approached by leftist, progressive activists (working for Hillary Clinton and receiving funding from George Soros) who either persuaded and/or threatened her into supporting the CWA. This group of activists has been strategically approaching candidates and promising support and future resources to run for Congress if candidates will sign on to support this horrific bill in the Florida Legislature.

When we heard of Senator Flores decision last week, our FFA field offices were making calls into her new district trying to help her turn out conservative voters in her area. Our organization has now stopped all calls and support for Senator Flores as a result her decision. Her decision, and our subsequent pull of support, is one of the greatest disappointments of the year thus far. The CWA bill is a clear and direct threat to religious liberty and the safety, security and privacy of women in Florida. We remain stunned that Senator Flores would compromise her core principles for political favor.

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ADDITIONAL COMMENTS:

A Summary Response to the Memorandum Issued by the Office of the General Counsel to the Florida Senate Regarding Conscience Clause for Adoption Agencies and Why HB-7111 is Needed to Protect Florida’s Faith-Based Child Placement Agencies

On April 14, 2015, the Office of the General Counsel for the Florida Senate released a legal opinion in a memorandum regarding “Conscience Clause for adoption agencies.” (Hereinafter referred to as the “Opinion.”) In the opening paragraph of the Opinion, the primary conclusion of the 5 page document states: “I believe that religious organizations would be granted no significant legal protection by House Bill 7111 in light of the Florida Religious Freedom Restoration Act (FRFRA) and its interpreting case law.”

There are a number of legal issues overlooked by the Opinion and therefore the following “Additional Comments” are being presented to members of the Florida Senate for their consideration:

I. THE OPINION IGNORES JUDGES AROUND THE STATE AND NATION WHO HAVE DISREGARDED THE RULE OF LAW AND ARE SEEKING TO IMPOSE RESULT-ORIENTED DECISIONS IN CASES INVOLVING GAY RIGHTS.

Perhaps the most significant oversight of the overly reserved Opinion produced by the Office of the General Counsel of the Senate is that it did not take into consideration the unprecedented legal trend of so many courts to engage in ideologically driven, result-oriented decision making, in cases involving “gay rights.” The Opinion shows a certain political naiveté assuming judges will follow the rule of law and case precedent when there is a tension between new found “gay-rights” and core First Amendment rights to the free exercise of religion. Because of this disturbing legal trend by courts, (both in Florida and across the country) the need for the Florida Legislature to create strong and clear laws to protect religious liberty cannot be overstated. HB-7111 gives precisely such clarity, strength and significant protection to faith-based child placement agencies over and above the protections found in FRFRA.

The Opinion fails to cite the numerous high profile cases involving litigation across America where various Christian businesses and ministries have been legally challenged and then penalized by county and city “non-discrimination” (or “Human Rights”) ordinances enacted during and after states legalized same-sex marriages. Florida has 23 of its own such local ordinances where new protected classes have been created for “sexual orientation, gender identity or gender expression.” These local laws seek to give the same legal protection as the immutable categories or race, age, sex and national origin and have been consistently used around the country as weapons to punish people of faith where they seek to exercise their faith in public life such as businesses, ministries and private property ownership.

The same courts, like the Third District Court of Appeals in Miami, which ignored Florida’s longstanding law prohibiting homosexual adoptions, will also attempt to over reach again to find faithbased child placement agencies in violation of non-discrimination ordinances given current legal developments. HB-7111 serves as a shield, guarding against prospective legal threats on the horizon.

II. THE OPINION OVERLOOKS THAT FLORIDA’S RFRA IS A LEGAL DEFENSE REQUIRING A BALANCING TEST OPEN TO A JUDGE’S DISCRETION.

Florida’s Religious Freedom Restoration Act (FRFRA) is a legal defense which may be asserted if a person or entity is sued and the defendant believes the subject of the grievance implicates his rights to the free exercise of religion. FRFRA provides a defense which, when asserted, the judge must consider and weigh to determine whether or not the law, or government action, “substantially burdens a person’s exercise of religion.” Unlike HB-7111, there is no language in the FRFRA statute which creates a bright line for judges to find for the party asserting right to free exercise of religion. The FRFRA statute on its face, gives discretion to the court to determine if the law furthers a “compelling governmental interest” and whether there is a “least restricted means.”

The Opinion argues that FRFRA inquiries are “inherently fact specific” and require an analysis of “the adherent’s religious practice.” But this goes to the very point that protection under FRFRA is only on a case by case basis and depends upon the judge’s discretion in applying those facts to the standards.

III. HB-7111 LOCKS DOWN LEGAL PROTECTION BY PREEMPTING TO THE STATE THE AUTHORTY TO REGULATE AND GIVES LITTLE TO NO ROOM FOR “JUDICIAL DISCRETION OR INTERPRETATION.”

Unlike FRFRA which is a balancing test, HB-7111 gives clear and unequivocal protection to faithbased child placement agencies. The bill’s language is specific and provides a direct protection for child placements which “would violate an agencies religious or moral convictions.” HB-7111 provides express private contract protection, creates liability protection and contains licensure protection for faith-based adoption agencies. The express preemption in the bill makes it clear to courts that the home rule of a local city or county (or its ordinances) could never trump state law relating to faith-based adoption agencies. While activist courts can still reach result orientated decisions if they insistent on ignoring the rule of law, HB-7111 greatly reduces judicial discretion. This stands in contrast to FRFRA’s statutory language, which requires much more judicial discretion or judicial interpretation.

IV. THE OPINION MAKES NO MENTION OF THE PRESENT REALITY OF OTHER STATES’ ADOPTION AGENCIES WHICH HAVE CLOSED BECAUSE OF THE LACK OF CONSCIENCE PROTECTIONS SUCH AS THE ONES FOUND IN HB-7111.

The Opinion makes no mention, nor does it even attempt to distinguish the circumstances behind the cases of the very real plight of religious child placement agencies across the country which are being forced to close down because of their required preference for placing children in the hands of married mothers and fathers. Consider the following:

“Catholic Charities of Boston was forced to shut down unless it agreed to place children with homosexuals. New state licensing laws in 2006 required that Catholic agencies facilitate adoptions for same-sex couples.”

“Catholic Charities of the Archdiocese of Washington D.C. was forced to shut down their foster care and public adoption program due to a law recognizing same-sex marriage that went into effect in 2010.”

“The necessity of accepting one of two equally objectionable choices confronts dioceses and Catholic Charities in 17 states from Minnesota to New Mexico and Massachusetts to California.” See: https://www.osv.com/OSVNewsweekly/ByIssue/Article/TabId/735/ArtMID/13636/ArticleID/14666/To ugh-times-for-Catholic-adoption-agencies.aspx#sthash.wDJk6lsH.dpuf

Of particular interest, Illinois’s RFRA law which is similar to Florida’s RFRA, provided no legal help to Catholic Charities affiliates, which after extensive litigation, closed down rather than comply with requirements, saying they can’t receive state money if they turn away same-sex couples as potential parents. See Catholic Charities of the Diocese of Springfield v. Illinois, No. 2011-MR-254 (Ill. Cir. Ct. Aug. 18, 2011) (Summ. J. Order), https://www.scribd.com/doc/62597962/Illinois-Circuit-Court-Summary-Judgment-Order-in-CatholicCharities-Foster-Care-Adoption-Services-Case.

V. THE OPINION FAILED TO RECOGNIZE THAT TWO OTHER STATES HAVE ENACTED CONSCIENCE CLAUSE PROTECTIONS FOR FAITH-BASED ADOPTION AGENCIES WITH PROVISIONS LIKE HB-7111.

The House Committee Staff Analysis of HB-7111 which the Opinion makes no citation or reference to, discusses similar conscience protections in two other states:

“Two states have enacted adoption services conscience protection legislation: North Dakota in 2003, and Virginia in 2012. Both the North Dakota and Virginia adoption services conscience protection laws protect private child placing agencies from:

• Being required to perform any duties related to the placement of a child for adoption if the proposed placement would violate the agency’s written religious or moral convictions or policies.
• Denial of initial licensure, revocation of licensure, or failure to renew licensure based on the agency’s objection to performing the duties required to place a child for adoption in violation of the agency’s written religious or moral convictions or policies.
• Denial of grants, contracts, or participation in government programs based on the agency’s objection to performing the duties required to place a child for adoption in violation of the agency’s written religious or moral convictions or policies.

Neither law has been challenged on constitutional grounds.”

Of interest, the state of Virginia adopted both a RFRA and conscience law protections for private child placement agencies and did not see this practice as “duplicative or unnecessary.” See Opinion at p5.

VI. CONSCIENCE PROTECTIONS HAVE BEEN CARVED OUT FOR RELIGIOUS HOSPITALS FROM PERFORMING ABORTIONS WITH NO SUCCESSFUL CONSTITUTIONAL CHALLENGES.

According to the House staff analysis on HB-7111, there are both state and federal statutes which provide conscience protections for hospitals and other health care providers related to abortion.

“By 1978 almost all states had conscience protection legislation related to abortion. Today, every state but West Virginia has conscience protection statutes for individual providers in relation to abortion.” “Section 390.0111(8), F.S., grants conscience protection for hospitals, physicians, or any person who refuses to participate in the termination of a pregnancy in Florida.”

Seventeen other states have conscience protection statutes for individual health providers related to sterilization, ten other states have conscience protection statutes for individual providers related to contraception which act as abortifacients.

“Education conscience protection has also emerged in education. In 2011, Missouri amended its Constitution to include, “no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs.”

“Although most do not amend their constitutions, “the vast majority of states have adopted legislation allowing parents to opt their children out of educational curriculum that they contend conflicts with their religious beliefs.” In 2013, the state of New Hampshire enacted a broad statutory provision allowing any parent to opt out of specific curricula based on any “objectionable” reason.” See HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: CS/HB 7111, PCB HHSC 15, 03 Conscience Protection for Private Child Placing.

VII. CONCLUSION

HB-7111 acts as a necessary legal shield against both existing and future threats that are on the horizon in a quickly changing legal and constitutional landscape. Many judges have become self-appointed social change agents instead of respecting their proper limited role as objective interpreters of law and the constitution. In Florida, we have consistently seen both federal and state courts aggressively advance “gay-rights” and openly defy Florida law. These courts have ignored the will of the people, the state constitution and the plain language of longstanding statutes. Unless legislative policies are crystal clear, certain members of the judicial branch will continue to find creative ways to completely undermine the authority of the Florida legislature. HB-7111 would provide additional, clear and significant protections not found in the state statutes regarding religious liberty for child placement agencies and therefore should be passed by the Florida Senate and sent to the Governor.

*John Stemberger serves as President and General Counsel of the Florida Family Policy Council. He has a private Civil Trial practice and has been involved with constitutional litigation involving RFRA / RLUPA statutes. Stemberger served for 13 years as a volunteer Guardian Ad Litem for abused and neglected children and has been a pro-family advocate for over 30 years.

Link to PDF: A Summary Response to the Memorandum Issued by the Office of the General Counsel to the Florida Senate Regarding Conscience Clause for Adoption Agencies and Why HB-7111 is Needed to Protect Florida’s Faith-Based Child Placement Agencies

Additional Resources: HOUSE OF REPRESENTATIVES STAFF ANALYSIS BILL #: CS/HB 7111, PCB HHSC 15, 03 Conscience Protection for Private Child Placing.

Alliance Defending Freedom: Legal Analysis Comparing the Protections of HB 7111 and Florida’s Religious Freedom Restoration Act

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