Senate Bill 264:

On May 8, 2023, the Florida Legislature enacted Senate Bill 264 (“SB 264”), which revises and adds certain statutory restrictions on persons, entities, and governments from certain countries to operate in the state of Florida. SB 264 limits these restrictions to certain defined “foreign principals” from a “foreign country of concern” which the bill defines as China, Russia, Iran, North Korea, Cuba, Syria, and Venezuela.^[1] The bill became law as of July 1, 2023, but is under review by the courts due to lawsuits challenging its constitutionality.

A "foreign principal," includes (1) a government, government official, or member of a political party from any foreign country of concern; (2) a corporate entity or subsidiary organized or having a principal place of business in any foreign country of concern; (3) a person domiciled in a foreign country of concern, and who is not a citizen or lawful permanent resident of the U.S.; or (4) any person or party described in this paragraph that has a “controlling interest” in an entity or subsidiary formed for the purpose of owning real estate in Florida.^[2]

Similar legislation has been proposed or pursued in more than thirty-three U.S. states; including but not limited to Alabama, Louisiana, Texas, and Virginia. Similar legislation was also added to the National Defense Authorization Act, which passed a U.S. Senate vote in July 2023, and is now under discussion in its conference committee.^[3]

Restrictions on Agricultural Land Ownership and Real Estate:

A 2022 report by the National Association of Realtors (the “NAR”) estimates that in 2022 Chinese parties purchased over $6.1 billion worth of real estate and agricultural land in the U.S., more than any other country. Florida has also been ranked as the number one state for foreign real estate investment for the 14th year in a row, accounting for approximately 24% of all international real estate purchases in 2022 in the entire country, and California came in second at just 11%.^[4] In 2019, the U.S. Department of Agriculture (the “DOA”) estimated that Chinese-linked entities owned at least 192,000 acres of agricultural land in the U.S., at the time worth more than $1.9 billion, including approximately 96,975 acres of Chinese-owned agricultural land in the Southern U.S. (including Florida).

SB 264 puts China and its government at the heart of the statute, and specifically limits select persons and entities from China from owning, having a "controlling interest" in, or acquiring additional real property or agricultural property in Florida starting July 1, 2023.^[5]

Foreign principals from any other foreign country of concern may not purchase/own additional property in Florida within ten (10) miles of a "military installation" or certain facilities characterized as "critical infrastructure."^[6]

These statutes shall be enforced through the requirement that such foreign principals already owning real property must register with the Florida Department of Agriculture and Consumer Services by January 1, 2024.^[7] The failure to timely register is subject to civil penalties up to $1,000 for each day that the registration is late, and the department may place a lien against the unregistered real property for the outstanding balance.^[8] In addition, from July 1, 2023, at the time of purchase of agricultural land, any party shall be required to provide an affidavit that the buyer is (1) not a foreign principal, and (2) is in compliance with SB 264. Agricultural land acquired in violation of this section ultimately “may be forfeited to the state.”^[9] A foreign principal that purchases or acquires property interest in violation of this SB 264 has also committed a second degree misdemeanor, as does any individual or party who knowingly sells any real property to a foreign principal in violation of SB 264.^[10] The broad terms for relevant “military installations” and “critical infrastructure facilities” will likely result in significant difficulty in parties from a foreign country of concern from purchasing such property in Florida, in particular in South Florida, where land is scarce. The lack of clear resources to determine where such government facilities are located within the state will also likely make it difficult to ensure a party is complying with these statutes.

Relevant terms:

• The relevant "military installations" include bases, camps, posts, stations, yards, or centers encompassing at least ten (10) contiguous acres that are under the jurisdiction of the Department of Defense or its affiliates.^[11]
• The definition of "critical infrastructure facilities" includes the following locations if they have fences, barriers, or guard posts designed to exclude unauthorized individuals: chemical manufacturing facilities, refineries, electrical power plants, water and wastewater treatment facilities, telecommunications central offices, gas and liquid natural gas (LNG) terminals and processing plants, harbors, spaceports and airports.^[12]
• "Controlling interest" means "possession of the power to direct or cause the direction of the management or policies of a company, whether through ownership of securities, by contract, or otherwise. A person or entity that directly or indirectly has the right to vote 25% or more of the voting interests of the company or is entitled to 25% or more of its profits is presumed to possess a controlling interest.”^[13]

Exceptions:

SB 264 provides for certain exceptions, which apply for parties owning a de minimis indirect interest in real property, security interest in real property, and grandfathered property acquired before July 1, 2023.^[14] This includes a party’s ownership of registered equities in a publicly traded company owning the land if the person's or entity's ownership interest in the company is either (1) less than 5% of any class of registered equities or less than 5% in the aggregate in multiple classes of registered equities; or (2) a noncontrolling interest in an entity controlled by a company that is both registered with the United States Securities and Exchange Commission (the “SEC”) as an investment adviser under the Investment Advisors Act of 1940, as amended, and is not a foreign entity.^[15]

While a foreign principal may obtain new real property in Florida after July 1, 2023 by other means such as by the collection of debts, devise or descent, or through the enforcement of security interest, said foreign principal shall be obligated to sell or transfer such real property within three (3) years after obtaining the real property.^[16] There is a grandfather clause for real property acquired before July 1, 2023 by foreign principals, provided that they do not purchase or acquire any additional real property in Florida. In order for this exception to be valid, the foreign principals shall be required to register with the Florida Department of Agriculture and Consumer Services before January 1, 2024.^[17]

Government Contracts:

Under SB 264, starting Jan. 1, 2024, any and all entities seeking to bid on government contracts that would involve the contractor having access to individual personal information of Florida residents will have to provide signed affidavits declaring the contractor does not violate the prohibitions on ties to any foreign country of concern.^[18] For government contracts, violations could result in civil penalties equal to loss of licenses, damages twice the value of the proposed contracts, and five year ineligibility for the contractor from seeking additional government contracts.^[19]

Lawsuit:

A lawsuit, Shen v. Simpson, was filed in the Northern District of Florida, seeking an injunction against the law's implementation, citing its unconstitutionality against the U.S. Constitution.^[20] The lawsuit was filed by a group of Chinese citizens (residing in Florida) and a real estate brokerage firm catering to Chinese nationals. The plaintiffs allege that SB 264 sets “especially draconian restrictions” on people from China, and that it stigmatizes Chinese and Chinese American people who “will be forced to cancel purchases of new homes,” as well as register their properties with the state.^[21] The plaintiffs are being represented by representatives of the American Civil Liberties Union of Florida (“ACLU”), as well as other legal counsel. On June 27, 2023, the U.S. Department of Justice (the “DOJ”) also filed a statement of interest supporting the ACLU in its endeavor to “enjoin implementation of these provisions.” As of August 17, 2023, an order was filed by the presiding U.S. District Judge, the honorable Allen Winsor, denying a preliminary injunction on the grounds that the plaintiffs have failed to show a substantial likelihood of success on the merits of the case.^[22] The case is still pending.