ISSUE: Organized retail crime continues to plague Florida retailers despite Florida having some of the strongest retail theft laws in the country.

DISCUSSION: Unfortunately, retail crime has traditionally been viewed as a minor crime and often doesn’t receive a high priority from law enforcement and prosecutors. However, occurrences of organized retail crime are increasing. Organized groups of thieves have caused increased losses to retailers and, consequently, higher prices to consumers along with loss of sales tax revenue. The proceeds from organized retail crime have been traced to a number of criminal entities, such as terrorists and Columbian drug cartels. In the past, bills have been filed that further minimize organized retail crimes by increasing the dollar threshold for felonies from $300 to $600. This would severely hamper retailers’ efforts to protect themselves from organized crime schemes.

Additionally, we have seen legislation and other proposals that would encourage the Department of Corrections to release “non-violent” offenders prior to their serving their full sentence. Some of these proposals are being offered as a budget-reducing method. The Federation has serious concerns with that philosophy. We maintain that “non-violent” does not necessarily equate to non-serious. Most theft and fraud fall into the category of “non-violent.” Yet, many of these criminals are as hardened as violent offenders and are as likely to be repeat offenders. Most retail crime falls into the category of “non-violent.”

In another twist on existing organized retail crime tactics, we are seeing “flash mobs” descend on a store with a large number of juveniles committing multiple thefts while attempting to overwhelm store security and law enforcement. Current law needs to be revisited to adequately address this new phenomenon.

POSITION: The Florida Retail Federation continues to support legislation that will deter organized retail crime. The Florida Retail Federation will oppose any effort to weaken laws against retail crime by increasing the felony theft threshold or releasing “non-violent” offenders prior to the completion of their sentence. We also support any effort to strengthen existing laws to more adequately address “flash mob” crimes.

ISSUE: Should physicians continue receiving a higher reimbursement rate than statutorily intended by dispensing repackaged medications to workers compensation patients.

DISCUSSION: According to 440.015, Florida Statutes, “It is the intent of the Legislature that the Workers’ Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” Unfortunately, that “reasonable cost” is going to see an 8.9% increase this year. A large part of that increase is being driven by a scheme known as “drug repackaging.” All medications have a standard national drug code (NDC), a number that is assigned by the manufacturer. That NDC is specific to the product and package size, and has an Average Wholesale Price (AWP) attached to it, which is used by claims processors to identify and process the claim for payment. Because drug re-packagers remove drugs from their original containers and place them in new containers of different quantities, the original NDC is removed from the drug and it receives a new one which is set by the re-packager. And, a loophole in Florida’s law allows re-packagers to set a new AWP for repackaged drugs and requires payers to reimburse providers at that new AWP plus a $4.18 dispensing fee. Because of that loophole, repackaging drugs for physician dispensing is now being marketed to medical practices as a tool to increase profit. One re-packager claims on its website that physician dispensing of repackaged drugs is “a profit center producing $20,000 to $100,000 additional net income per physician per year.”

Many recent studies on workers’ compensation data show that physicians who dispense repackaged drugs are being reimbursed between 400 and 700 percent more than pharmacies for the same medication. Paying physicians the inflated rate promoted by drug re-packagers has been an enormous cost driver in workers’ compensation claims in recent years. While the the Florida Retail Federation understands the service that physicians provide by dispensing certain medications from their office, they should be subject to the same reimbursement rates as pharmacies.

POSITION: The Florida Retail Federation supports closing the loophole in the Workers’ Compensation Law to make the reimbursement fee schedule consistent regardless of where medications are dispensed.

ISSUE: What measures should be taken to deal with the problem of illegal immigration.

DISCUSSION: With the issue of illegal immigration rising to the level of firebrand rhetoric at the national level, elected leaders are expected to provide a thoughtful solution. Two specific ideas which have been brought into the debate are: E-Verify and discretionary checks on immigration status. For the retail industry, both ideas have the potential to do harm if not correctly implemented.

E-Verify is a “free” web-based software program that verifies the employee’s eligibility to work in the United States. Using the employee’s Form I-9, the employer enters the required information into the E-Verify system. The system then checks the name and social security number of the employee to determine employment eligibility. Unfortunately, according to a report commissioned by and posted on the Department of Homeland Security’s own website, E-Verify is only 48% reliable. E-Verify is reliant on the presumption that illegal immigrants do not use stolen social security numbers in order to gain employment. However, identity theft is commonly practiced by the illegal immigrant population and there is no way for the employer to determine whether that has occurred. Additionally, E-Verify cannot legally be used for prescreening. Therefore, an employer may unintentionally hire, pay wages to, and pay taxes on an illegal immigrant. For those reasons, if the use of the E-Verify system is required of employers, there must be an affirmative defense provided to them for using it.

Like E-Verify, the allowance of discretionary checks of immigration status must have parameters. If law enforcement officials are given sweeping authority to run background checks during simple traffic stops, this could have a devastating impact on our tourist industry. Arizona, with the passage of its Senate Bill 1070, lost millions of dollars in canceled convention business. Florida’s economy simply cannot sustain such a loss. A more thoughtful approach would be to encourage law enforcement professionals to confirm a suspect’s immigration status when conducting criminal investigations.

POSITION: The Florida Retail Federation favors reasonable action to ensure all foreign born residents and tourists are legally in the state.

ISSUE: Should the Legislature revise the way the Court System is funded in order to ensure it has adequate revenue to carry out its mission.

DISCUSSION: The Court Administrator has demonstrated that insufficient funding of the court system adversely impacts their ability to handle and resolve civil cases in a timely manner, disproportionately affecting Florida businesses. The State Courts Administrator, along with representatives of trial and appeals courts, including the Florida Supreme Court, have asked the business community for assistance in requesting that the court system be spared any proposed government spending cuts.

The work of the courts and clerks is inter-related, and each entity depends on the other to provide justice to the people. The two entities should be considered the Core Court System for funding purposes. Filing fees and service charges in the Supreme Court and District Courts of Appeal should not be directed into general revenue but into the courts’ trust fund, with all court related revenue being distributed to the courts and clerks in an amount sufficient to support their authorized budgets before distributions are made to other government programs and services. Additionally, there are certain court functions that are a requirement of state government: judges, court reporters, and interpreters. As such, their salaries should be paid from general revenue, not court user fees and costs. These proposals will enable the courts and clerks to have the funding necessary to support the budget authorized by the legislature.

POSITION: The Florida Retail Federation supports the implementation of a more stable funding mechanism for the State Court System.

ISSUE: Should Florida ban surcharges on debit card transactions.

DISCUSSION: For many years, Florida has banned surcharges on credit card transactions, but not on debit cards. This allows a retailer to pass bank fees on debit card transactions on to the customer if necessary. In the 2010 Legislative Session, an effort was made to ban surcharges on debit card transactions. Federation members and the AIP team fought hard to defeat the ban and were ultimately successful. This mirrored an effort by retailers at the federal level to rein in excessive charges by banks. While no legislation involving debit card surcharges surfaced during the 2011 Legislative Session, the Federation needs to be vigilant and prepared to again fight any such legislation in the 2012 session.

POSITION: The Florida Retail Federation opposes any effort to statutorily mandate a ban on debit card surcharges.

ISSUE: Should employers be allowed to question job applicants about their criminal history.

DISCUSSION: Currently, the Equal Employment Opportunity Commission is considering new guidelines that would prevent employers from asking potential employees about whether they have been convicted of a crime. Additionally, some cities and states have passed so called “Ban the Box” legislation, which forces employers to remove the criminal history conviction check box on application forms.

Supporters of eliminating questions on criminal history during the initial application phase say that this allows a person to have a “fair chance” at proving that they would be the one best able to perform the job. Removing the criminal history question from applications ensures that applicants won’t be automatically excluded because of any past mistakes they have made.

For retailers, the ability to keep this question on applications is a necessary tool for keeping our customers – and our inventory – safe.

POSITION: The Florida Retail Federation will oppose any proposed legislation that would prohibit prospective employers from using criminal history information in hiring decisions.

ISSUE: Should Florida’s tort laws reflect payment to a plaintiff for actual, true medical bills or should the practice of making medical care claims based on inflated bills be continued.

DISCUSSION: Through complicated procedures in personal damage suits, plaintiffs can claim and are awarded damages based on inflated costs for procedures which are not based on the actual amount paid by the plaintiff or on the plaintiff’s behalf. The jury is not allowed to know the true amount. This results in inflated awards for medical claims to the plaintiff and increased attorney fees, since personal injury attorney fees are set as a percentage of the dollar amount of the judgment. The practice of allowing these inflated or untrue damages increases the cost of personal injury suits without a commensurate true benefit to the injured party. Once again, fairness and justice are not part of the suit.

POSITION: The Florida Retail Federation believes that injured parties should recover their true costs based on real expenses, not phantom numbers. The Federation supports corrective legislation to help restore truthful damage verdicts in personal injury lawsuits.

RELATED BILLS
HB 1069 Truth in Damages,Metz
SB 1328 Truth in Damages, Hays

ISSUE: Should wage theft be addressed at the local level.

DISCUSSION: Wage theft occurs when an employee is not paid the money due for the work he or she has done. Many different state and federal laws exist to insure employers treat employees fairly and pay the appropriate money due. These laws protect employees while also protecting the due process rights of employers. Recently, there has been a movement at the county level to adopt additional laws and regulations to address the issue of wage theft.

Though there has been no demonstration that the existing state and federal laws are inadequate, one county has already passed an ordinance, and other counties are looking to follow. These wage theft ordinances establish an extra-judicial process, with little of the due process protections that exist in typical judicial and administrative proceedings. Employers may be subject to punitive damages provisions at the county level and may still be vulnerable to additional suits under the existing state and federal laws. An employer is not guaranteed finality from the county proceeding. The constitutionality of such an ordinance is questionable. The Florida Retail Federation has filed suit to challenge the county ordinance.

There is no question that employees deserve to be fairly compensated. If the existing protections are indeed inadequate, this is an issue that needs to be addressed statewide. Piecemeal regulation will only create a burdensome business environment without addressing the true issue of fair and balanced dealings between employers and employees.

POSITION: Wage theft regulation should fall under the purview of state and federal laws. If additional regulation is deemed necessary, it should be thoroughly vetted and applied consistently throughout the state in the form of a state statute, not local ordinances.

RELATED BILLS
HB 609 Relating to Wage Protection for Employees, Rep Goodson
SB 862 Relating to Wage Protection for Employees, Simmons

UPDATES
1/13/12
Receiving attention this week was our Wage Protection bill. Rep. Tom Goodson presented HB 609 in its second committee of reference, the Community and Military Affairs Committee. The union representatives were out in full force in opposition and the issue was hotly debated. However, our SVP and General Counsel, John Rogers, made such a compelling case that the issue was easily won. The bill passed out of committee by a vote of 11 to 4. It is now in the Judiciary Committee, its last committee of reference.

1/27/12
The two Wage Theft bills have moved fairly quickly with good progress. The House version, HB 609, by Representative Tom Goodson, has cleared two committee stops and is ready to be heard in its last House committee, Judiciary. The Senate version, SB 862 by Senator David Simmons, had its first committee hearing this week and passed that committee. It has two more Senate committee stops. We are working with a coalition of religious groups and labor to fashion a bill that is acceptable to them and our members. Oddly enough, the two sides have pretty much always agreed philosophically; our differences were mostly on the process and constitutionality of the solution. We anticipate having a solution in the next week or so.

2/17/12
The two Wage Theft bills have not moved recently. However, the Senate version, SB 862 by Senator David Simmons, is set to be heard in the Senate Judiciary Committee on Monday. Sen. Simmons has crafted a “strike all” amendment designed to meet the objections others have with this bill. We are supportive of Senator Simmons’ new version as being more practical than the current Miami-Dade ordinance and it also has statewide application. Several legislators had suggested the need for such a statewide law. The House version, HB 609, by Representative Tom Goodson, was not been heard this week, but it is ready to be heard in its last committee.

ISSUE: Should Florida expand its gambling offerings to include large destination casinos?

DISCUSSION: Legislation proposed in the 2012 session would allow Florida to become home to up to three large destination casinos. Though it has been stated these destination casinos would focus their marketing efforts on international visitors, there would be a very real impact on Florida’s families and existing businesses. Destination casinos would have a negative impact on Florida’s retail industry by reducing families’ disposable income available for spending in Florida’s existing entertainment, retail, and restaurant establishments. Money going into these casinos means money coming out of existing Florida businesses. Destination casinos will also harm the family-friendly brand Florida has worked so hard to create.

POSITION: Because of the potential negative impact on Florida’s existing businesses and family-friendly brand, the Florida Retail Federation opposes destination casinos.

RELATED BILLS
SB 710, Relating to Gaming, Bogdanoff
HB 487, Relating to Gaming, Fresen

ISSUE: Should Florida sales tax dealers be allowed to keep the small sales tax collection allowance currently authorized by the Florida sales tax statutes.

DISCUSSION: As legislators review the current fee and tax structure, some discussion may be directed at the dealers’ collection allowance, which has been the subject of previous news coverage alleging retailers are not remitting all of the tax they collect. However, retailers are authorized by Section 212.12 (1), F.S. to keep 2.5 percent of the sales tax collected, up to a maximum of $30 per month, per store location. This fee is supposed to offset the retailers’ cost of collecting and remitting sales tax for the state. While this collection allowance doesn’t come close to the actual cost to the retailers for their collecting and remitting the sales tax, the allowance shouldn’t be eliminated and redirected to the state treasury. Currently the collection allowance is worth approximately $60 million annually to Florida retailers.

POSITION: The Florida Retail Federation will actively oppose any effort by the Florida Legislature to revoke the payment of the Dealer Collection Allowance.