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       Florida Senate - 2010                                    SB 1720
       By Senator Smith
       29-01539-10                                           20101720__
    1                        A bill to be entitled                      
    2         An act relating to the Black Business Investment
    3         Board, Inc.; amending s. 288.707, F.S.; deleting a
    4         description of the board as a public-private entity;
    5         requiring the board to assist the Office of Tourism,
    6         Trade, and Economic Development in creating a long
    7         range strategic policy for the Black Business Loan
    8         Program; providing for certain members of the board to
    9         be ex officio, nonvoting members; amending s. 288.709,
   10         F.S.; requiring that upon dissolution of the board, an
   11         asset that was not acquired through the use of state
   12         funds be returned to the donor who provided the asset
   13         or the funding or resources to acquire the asset;
   14         amending s. 288.7091, F.S.; requiring the board to aid
   15         the development and expansion of black business
   16         enterprises by leveraging federal funds; requiring the
   17         board to collaborate with agencies of the federal,
   18         state, and local governments, private entities,
   19         nonprofit organizations, and national organizations;
   20         amending s. 288.7102, F.S.; revising the dates by
   21         which applications for loans from the Black Business
   22         Loan Program must be received and processed by the
   23         Office of Tourism, Trade, and Economic Development;
   24         revising the date by which the Office of Tourism,
   25         Trade, and Economic Development must distribute
   26         appropriations to program recipients; deleting
   27         provisions providing for the board to recommend the
   28         certification of eligible recipients for loans;
   29         amending s. 288.71025, F.S.; authorizing the Office of
   30         Tourism, Trade, and Economic Development to bring a
   31         civil action against an entity that unlawfully holds
   32         itself out as a black business investment corporation;
   33         amending s. 288.712, F.S.; deleting a provision
   34         relating to the black contractors bonding program,
   35         which requires the board to provide assistance to the
   36         Office of Supplier Diversity within the Department of
   37         Management Services; amending s. 288.714, F.S.;
   38         requiring that recipients of loans from the Black
   39         Business Loan Program provide quarterly reports to the
   40         Office of Tourism, Trade, and Economic Development;
   41         requiring that the Office of Tourism, Trade, and
   42         Economic Development provide a summary of the
   43         quarterly reports from loan recipients to the board;
   44         requiring that the Office of Tourism, Trade, and
   45         Economic Development and the board provide annual
   46         reports on the Black Business Loan Program to the
   47         Governor, President of the Senate, and Speaker of the
   48         House of Representatives by a certain date; providing
   49         an effective date.
   51  Be It Enacted by the Legislature of the State of Florida:
   53         Section 1. Subsections (1), (2), and (3) of section
   54  288.707, Florida Statutes, are amended to read:
   55         288.707 Florida Black Business Investment Board, Inc.;
   56  findings; creation; membership; organization; meetings;
   57  disclosure.—
   58         (1) The Legislature finds that the public interest of the
   59  state will be served by the creation of a not-for-profit
   60  corporation, public-private entity the primary mission of which
   61  is shall be to assist in the development and expansion of black
   62  business enterprises by:
   63         (a) Advising the Office of Tourism, Trade, and Economic
   64  Development in its oversight of the Black Business Loan Program
   65  and assisting in the creation of a creating long-range strategic
   66  policy for the program.
   67         (b) Evaluating the unmet need for capital by black business
   68  enterprises in the state.
   69         (c) Creating partnerships between federal, state, and local
   70  governments, and private enterprises, and national organizations
   71  to aid in the development and expansion of black business
   72  enterprises.
   73         (d) Providing a network of information resources for black
   74  business enterprises and providing technical assistance through
   75  this network.
   76         (2)(a) There is created a not-for-profit corporation to be
   77  known as the “Florida Black Business Investment Board, Inc.,”
   78  referred to in ss. 288.707-288.714 as the board, which shall be
   79  registered, incorporated, organized, and operated in compliance
   80  with chapter 617 and which may shall not be a unit or entity of
   81  state government. The Legislature determines, however, that
   82  public policy dictates that the board operate in the most open
   83  and accessible manner consistent with its public purpose.
   84  Therefore, the Legislature specifically declares that the board
   85  and its advisory committees or similar groups created by the
   86  board, including any subsidiaries, are subject to the provisions
   87  of chapter 119, relating to public records, and the provisions
   88  of chapter 286, relating to public meetings and records.
   89         (b) The board shall contract with the Office of Tourism,
   90  Trade, and Economic Development to implement the provisions of
   91  ss. 288.707-288.714.
   92         (3) The board shall be governed by a board of directors
   93  chosen as follows:
   94         (a) Five members appointed by the Governor who shall serve
   95  terms of 4 years each, except that in making initial
   96  appointments, the Governor shall appoint three members to serve
   97  for terms of 2 years each and two members to serve for terms of
   98  3 years each.
   99         (b) One member appointed by the President of the Senate who
  100  shall serve a term of 2 years.
  101         (c) One member appointed by the Speaker of the House of
  102  Representatives who shall serve a term of 2 years.
  103         (d) The vice chair of Enterprise Florida, Inc., or his or
  104  her designee, who shall be an ex officio, nonvoting member.
  105         (e) The chair of the Florida Development Finance
  106  Corporation created pursuant to s. 288.9604, who shall be an ex
  107  officio, nonvoting member.
  108         (f) Four presidents of participating black business
  109  investment corporations who shall be appointed by the Executive
  110  Director of the Office of Tourism, Trade, and Economic
  111  Development upon the recommendation of the Florida Consortium of
  112  Black Business Investment Corporations, Inc., to serve for terms
  113  of 3 years each. Each shall be eligible for reappointment to one
  114  additional term of 3 years.
  115         Section 2. Section 288.709, Florida Statutes, is amended to
  116  read:
  117         288.709 Powers of the Florida Black Business Investment
  118  Board, Inc.—The board shall have all the powers granted under
  119  chapter 617 and any powers necessary or convenient to carry out
  120  and effectuate the purposes and provisions of ss. 288.707
  121  288.714, including, but not limited to, the power to:
  122         (1) Adopt bylaws for the regulation of its affairs and the
  123  conduct of its business and adopt policies to implement the
  124  provisions of law conferring duties upon it. The bylaws shall
  125  provide that the board is subject to the requirements of s. 24,
  126  Art. I of the State Constitution and chapter 119 and s. 286.011.
  127         (2) Enter into agreements or other transactions with any
  128  federal, state, or local agency or private entity.
  129         (3) Invest any funds held in reserves or sinking funds, or
  130  any funds not required for immediate disbursement, in such
  131  investments as may be authorized for trust funds under s.
  132  215.47; however, such investments will be made on behalf of the
  133  board by the Chief Financial Officer or by another trustee
  134  appointed for that purpose.
  135         (4) Appear in its own behalf before boards, commissions,
  136  departments, or other agencies of municipal, county, state, or
  137  Federal Government.
  138         (5) Apply for, accept, and disburse from any state or
  139  nonstate source grants, loans, or advances for, or in aid of,
  140  the purposes of ss. 288.707-288.714 and receive and accept
  141  contributions from any source of either money, property, labor,
  142  or other things of value to be held, used, and applied for said
  143  purposes.
  144         (6) Provide and pay for advisory services and technical
  145  assistance as may be necessary or desirable to carry out the
  146  purposes of this act.
  147         (7) Engage in special programs to enhance the development
  148  of black business enterprises as authorized by this act.
  149         (8) In addition to any indemnification available under
  150  chapter 617, indemnify, and purchase and maintain insurance on
  151  behalf of, directors, officers, and employees of the board and
  152  its boards against any personal liability or accountability by
  153  reason of actions taken while acting within the scope of their
  154  authority.
  155         (9) Provide in its bylaws that, upon the dissolution of the
  156  board, all of its assets acquired through the use of state
  157  funds, after payment of all legal debts and liabilities, revert
  158  to the state. However, an asset that was not acquired through
  159  the use of state funds shall be returned to the donor who
  160  provided the asset or funding or resources to acquire the asset.
  161         Section 3. Subsections (2) and (6) of section 288.7091,
  162  Florida Statutes, are amended to read:
  163         288.7091 Duties of the Florida Black Business Investment
  164  Board, Inc.—The board shall:
  165         (2) Aid the development and expansion of black business
  166  enterprises by leveraging federal, state, local, and private
  167  funds to be held by the board for use according to the
  168  provisions of ss. 288.707-288.714.
  169         (6) Collaborate with agencies of the federal, state, and
  170  local governments, private entities, nonprofit organizations,
  171  and national organizations the Department of Transportation, the
  172  Department of Management Services, including the Florida
  173  Minority Business Loan Mobilization Program, Workforce Florida,
  174  Inc., and other state agencies and partners, the State
  175  University System, including the Florida Agricultural and
  176  Mechanical University’s Institute of Urban Policy and Commerce,
  177  school boards, and local governments to create a network of
  178  information and to identify available resources to enhance the
  179  development and expansion of black business enterprises.
  180         Section 4. Section 288.7102, Florida Statutes, is amended
  181  to read:
  182         288.7102 Black Business Loan Program.—
  183         (1) The Black Business Loan Program is established in the
  184  Office of Tourism, Trade, and Economic Development. Under the
  185  program, the office shall annually certify eligible recipients
  186  and subsequently disburse funds appropriated by the Legislature,
  187  through such eligible recipients, to black business enterprises
  188  that cannot obtain capital through conventional lending
  189  institutions but that could otherwise compete successfully in
  190  the private sector.
  191         (2) The office shall establish an application and annual
  192  certification process for entities seeking funds to participate
  193  in providing loans, loan guarantees, or investments in black
  194  business enterprises pursuant to the Florida Black Business
  195  Investment Act. The board shall receive the applications and
  196  make recommendations for certification to the office. The office
  197  shall process all applications and recertifications submitted by
  198  June 1 July 1 on or before July 31 September 30.
  199         (3) If the Black Business Loan Program is appropriated any
  200  funding in a fiscal year, the office shall distribute an equal
  201  amount of the appropriation, calculated as the total annual
  202  appropriation divided by the total number of program recipients
  203  certified on or before July 31 September 30 of that fiscal year.
  204         (4) To be eligible to receive funds and provide loans, loan
  205  guarantees, or investments under this section, a recipient must:
  206         (a) Be a corporation registered in the state.
  207         (b) Demonstrate that its board of directors includes
  208  citizens of the state experienced in the development of black
  209  business enterprises.
  210         (c) Demonstrate that the recipient has a business plan that
  211  allows the recipient to operate in a manner consistent with ss.
  212  288.707-288.714 and the rules of the office.
  213         (d) Demonstrate that the recipient has the technical skills
  214  to analyze and evaluate applications by black business
  215  enterprises for loans, loan guarantees, or investments.
  216         (e) Demonstrate that the recipient has established viable
  217  partnerships with public and private funding sources, economic
  218  development agencies, and workforce development and job referral
  219  networks.
  220         (f) Demonstrate that the recipient can provide a private
  221  match equal to 20 percent of the amount of funds provided by the
  222  office.
  223         (g) Agree to maintain the recipient’s books and records
  224  relating to funds received by the office according to generally
  225  accepted accounting principles and in accordance with the
  226  requirements of s. 215.97(7) and to make those books and records
  227  available to the office for inspection upon reasonable notice.
  228         (5) The board shall annually recommend to the office
  229  certification of Each eligible recipient, who must meet the
  230  provisions of ss. 288.707-288.714, the terms of the contract
  231  between the recipient and the office, and any other applicable
  232  state or federal laws. An entity may not receive funds under ss.
  233  288.707-288.714 unless the entity meets annual certification
  234  requirements.
  235         (6) Upon approval by the office and before prior to release
  236  of the funds as provided in this section, the office shall issue
  237  a letter certifying the applicant as qualified for an award. The
  238  office and the applicant shall enter into an agreement that sets
  239  forth the conditions for award of the funds. The agreement must
  240  include the total amount of funds awarded; the performance
  241  conditions that must be met once the funding has been awarded,
  242  including, but not limited to, compliance with all of the
  243  requirements of this section for eligible recipients of funds
  244  under this section; and sanctions for failure to meet
  245  performance conditions, including any provisions to recover
  246  awards.
  247         (7)(a) The office, in consultation with the board, shall
  248  adopt rules pursuant to ss. 120.536(1) and 120.54 to implement
  249  this section.
  250         (b)The board shall adopt policies and procedures necessary
  251  to implement this section.
  252         (8) A black business investment corporation certified by
  253  the office as an eligible recipient under this section is
  254  authorized to use funds appropriated for the Black Business Loan
  255  Program in any of the following forms:
  256         (a) Purchases of stock, preferred or common, voting or
  257  nonvoting; however, no more than 40 percent of the funds may be
  258  used for direct investments in black business enterprises;
  259         (b) Loans or loan guarantees, with or without recourse, in
  260  either a subordinated or priority position; or
  261         (c) Technical support to black business enterprises, not to
  262  exceed 7 percent of the funds received, and direct
  263  administrative costs, not to exceed 10 percent of the funds
  264  received.
  265         (9) It is the intent of the Legislature that if any one
  266  type of investment mechanism authorized in subsection (8) is
  267  held to be invalid, all other valid mechanisms remain available.
  268         (10) All loans, loan guarantees, and investments, and any
  269  income related thereto, shall be used to carry out the public
  270  purpose of ss. 288.707-288.714, which is to develop black
  271  business enterprises. This subsection does not preclude a
  272  reasonable profit for the participating black business
  273  investment corporation or for return of equity developed to the
  274  state and participating financial institutions upon any
  275  distribution of the assets or excess income of the investment
  276  corporation.
  277         Section 5. Section 288.71025, Florida Statutes, is amended
  278  to read:
  279         288.71025 Prohibited acts; penalties.—
  280         (1) It is unlawful for any person to hold itself out as a
  281  black business investment corporation without being certified by
  282  the board as eligible to participate in the Florida Black
  283  Business Loan Program.
  284         (2) In addition to any other penalties or remedies provided
  285  under law, the office board may bring a civil action in any
  286  court of competent jurisdiction against any person for a knowing
  287  or willful violation of this section. Upon an adverse
  288  adjudication, the court may impose a civil penalty of up to $500
  289  and payment of court costs and reasonable attorney’s fees
  290  incurred by the plaintiff.
  291         Section 6. Section 288.712, Florida Statutes, is amended to
  292  read:
  293         288.712 Guarantor funds.—
  294         (1) The board is authorized to establish, with or without
  295  public or private partners, guarantor funds to assist qualified
  296  black business enterprises in obtaining surety bonds and other
  297  credit instruments when required.
  298         (2) The board may contract with a regulated surety company
  299  to conduct a surety bond program for black business enterprises.
  300         (3) For purposes of this section, the board may utilize the
  301  Black Contractors Bond Trust Fund, consisting of moneys
  302  deposited or credited to the Black Contractors Bond Trust Fund
  303  pursuant to any appropriation made by law; any grants, gifts,
  304  and contributions received pursuant to ss. 288.707-288.714; all
  305  moneys recovered following defaults; all premiums charged and
  306  collected in accordance with this section and any interest
  307  earned; and any other moneys obtained by the board for this
  308  purpose. The fund shall be administered by the board in trust
  309  for the purposes of this section and shall at no time be part of
  310  general public funds under the following procedures:
  311         (a) Any claims against the state arising from defaults
  312  shall be payable from the Black Contractors Bond Trust Fund.
  313  Nothing in this section grants or pledges to any obligee or
  314  other person any state moneys other than the moneys in the Black
  315  Contractors Bond Trust Fund.
  316         (b) The board may guarantee bonds executed by sureties for
  317  black business enterprises under this section as principals on
  318  contracts with the state, any political subdivision or
  319  instrumentality, or any person as the obligee. The board, as
  320  guarantor, may exercise all the rights and powers of a company
  321  authorized by the Department of Financial Services to guarantee
  322  bonds under chapter 624, but otherwise is not subject to any
  323  laws related to a guaranty company under chapter 624 or to any
  324  rules of the department.
  325         (c) The board shall adopt policies and procedures for the
  326  application for bond guarantees and for the review and approval
  327  of applications for bond guarantees submitted by sureties that
  328  execute bonds eligible for guarantees under this section.
  329         (d) In accordance with the policies and procedures adopted
  330  pursuant to this section, the board may guarantee up to 90
  331  percent of the loss incurred and paid by sureties on bonds
  332  guaranteed under this section.
  333         (e) The policies and procedures of the board shall require
  334  the black business enterprise to pay a premium in advance for
  335  the bond to be established by the board. All premiums paid by
  336  the black business enterprise shall be paid into the Black
  337  Contractors Bond Trust Fund.
  338         (f) The penal sum amounts of all outstanding bonds issued
  339  by the board shall not exceed the amount of moneys in the Black
  340  Contractors Bond Trust Fund.
  341         (g) Any funds to the credit of the Black Contractors Bond
  342  Trust Fund in excess of the amount necessary to fund the
  343  appropriation authority for the fund shall be held as a loss
  344  reserve to pay claims arising from defaults on surety bonds
  345  guaranteed in accordance with this section.
  346         (4) Nothing in this section shall be construed to prohibit
  347  or restrict the board from entering into a joint venture or
  348  other contractual agreement with a private insurer or to invest
  349  in a private entity to handle all or part of a black contractors
  350  bonding program for black business enterprises. The board is
  351  authorized and encouraged to contract with a regulated surety
  352  company to conduct a surety bond program for black business
  353  enterprises. Moneys from the Black Contractors Bond Trust Fund
  354  may be used for these purposes. The board may approve one
  355  application per fiscal year from each surety company to support
  356  1 fiscal year of that company’s activities under this section. A
  357  surety bond company that applies for a bond guarantee under this
  358  section, regardless of whether the guarantee is approved, is not
  359  restricted from also applying for individual bond guarantees
  360  under this section.
  361         (5) The board shall do all of the following to implement
  362  the black contractors bonding program:
  363         (a) Conduct outreach, marketing, and recruitment of black
  364  contractors.
  365         (b)Provide assistance to the Office of Supplier Diversity
  366  within the Department of Management Services, as needed, to
  367  certify new black business enterprises and to train appropriate
  368  department staff.
  369         (b)(c) Provide business development services to black
  370  business enterprises in the developmental and transitional
  371  stages of the program, including financing and bonding
  372  assistance and management and technical assistance.
  373         (c)(d) Develop a mentor program to bring businesses into a
  374  working relationship with black contractors in a way that
  375  commercially benefits both entities and serves the purpose of
  376  the program.
  377         (e)No later than December 31, 2007, prepare and submit to
  378  the Governor a detailed report outlining and evaluating the
  379  progress made in implementing the black contractors bonding
  380  program.
  381         (d)(f) Establish a process by which black contractors may
  382  apply for contract assistance, financial and bonding assistance,
  383  management and technical assistance, and mentoring
  384  opportunities.
  385         Section 7. Section 288.714, Florida Statutes, is amended to
  386  read:
  387         288.714 Quarterly and annual reports.—
  388         (1) Each recipient of state funds under s. 288.7102 shall
  389  provide to the office board a quarterly report within 15 days
  390  after the end of each calendar quarter that includes a detailed
  391  summary of the recipient’s performance of the duties imposed by
  392  s. 288.7102, including, but not limited to:
  393         (a) The dollar amount of all loans or loan guarantees made
  394  to black business enterprises, the percentages of the loans
  395  guaranteed, and the names and identification of the types of
  396  businesses served.
  397         (b) Loan performance information.
  398         (c) The amount and nature of all other financial assistance
  399  provided to black business enterprises.
  400         (d) The amount and nature of technical assistance provided
  401  to black business enterprises, including technical assistance
  402  services provided in areas in which such services are otherwise
  403  unavailable.
  404         (e) A balance sheet for the recipient, including an
  405  explanation of all investments and administrative and
  406  operational expenses.
  407         (f) A summary of all services provided to nonblack business
  408  enterprises, including the dollar value and nature of such
  409  services and the names and identification of the types of
  410  businesses served.
  411         (g) Any other information as required by policies adopted
  412  by the office board.
  413         (2) The office board must compile and provide to the board
  414  office a summary of all quarterly reports within 30 days after
  415  the end of each calendar quarter that includes a detailed
  416  summary of the recipient’s performance of the duties imposed by
  417  s. 288.7102.
  418         (3) By August 31 May 1 of each year, the office board shall
  419  provide to the Governor, the President of the Senate, and the
  420  Speaker of the House of Representatives a detailed report of the
  421  performance of the Black Business Loan Program. The report must
  422  include, including:
  423         (a) a cumulative summary of quarterly report data required
  424  by subsection (1).
  425         (4) By August 31 of each year, the board shall provide to
  426  the Governor, the President of the Senate, and the Speaker of
  427  the House of Representatives a detailed report of the
  428  performance of the Black Business Loan Program, including:
  429         (a)(b) A description of the strategies implemented by the
  430  board to increase private investment in black business
  431  enterprises.
  432         (b)(c) A summary of the board’s performance of its duties
  433  under ss. 288.707-288.712.
  434         (c)(d) The most recent 5-year projection of the need for
  435  capital by black business enterprises.
  436         (d)(e) Recommendations for legislative or other changes to
  437  enhance the development and expansion of black business
  438  enterprises in the state.
  439         (e)(f) A projection of the program’s activities during the
  440  next 12 months.
  441         Section 8. This act shall take effect July 1, 2010.

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