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The Florida Legislature’s Trend in Preemption of Local Regulation Perspective of a Local Government Attorney by joseph a. adams, esq. and amanda l. swindle, esq.
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he strength of free peoples resides in the local community. Local institutions are to liberty what primary schools are to science; they put it within the people’s reach; they teach people to appreciate its peaceful enjoyment and accustom them to make use of it. Without local institutions a nation may give itself a free government, but it has not got the spirit of liberty.” (Alexis de Tocqueville- Democracy in America) These were de Tocqueville’s thoughts on local government in observing American democracy. The idea that local bodies know their citizens’ needs better than a distant and centralized federal or state government has deep roots in American history. Florida formally adopted this concept in a revision to the state’s Constitution over 50 years ago, providing local governments with “home rule” authority to enact ordinances and regulations for any public purpose, unless preempted by the legislature. (Article VIII s 1 Fla. Const. 1968 Rev.) The Florida Legislature’s number of preemption bills has certainly ramped up in recent years. As of the writing of this article, there were 43 active bills including some kind of preemption language during the 2022 legislative session. The passage of a preemption bill inevitably leads to difficult legal and political issues the local government needs to resolve. First, local governments must determine the extent to which a subject matter is being preempted to the state. Express preemption is accomplished where a statute explicitly states a particular subject matter is preempted by state law. Implied preemption is recognized where the state legislative scheme of regulation is so
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encompassing that any local legislation on the subject matter would present a conflict with state law. The legislature’s preemption bills frequently fail to consider numerous unintended consequences of the new law. Florida consists of 66 counties, 412 cities, towns, and villages, and over 1,000 special districts, each with its own local issues and concerns. On the other hand, there are circumstances where one unified statewide regulation is preferred, such as the regulation of firearms and ammunition. Following the passage of a preemption bill, local governments must pass, amend, or repeal ordinances to be consistent with state law. The local legislative action necessary to comply with a preemption bill usually leads to frustrated citizens who do not understand why they can no longer rely on their locally elected politicians to address important issues within their community. Below are just a few examples of recently enacted preemption bills from the Florida Legislature, and some of the local issues those bills have created. HB 693/SB 1000 (2019) – COMMUNICATION SERVICES: This bill has created issues for local DOT permitting departments, which must retain enough staff to meet the permit review deadlines, but are not permitted to charge applicants any fees associated with this function. Additionally, the inability to deny a permit for a new facility when that facility could be co-located on an existing utility pole has led to public complaints about crowding of the rights-of-way. HB 1193/SB 474 (2020) – Deregulation of Professions and Occupations:
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While this bill includes a laundry list of professions where regulation has now been preempted to the state, one aspect of this bill that has created significant local concern is the preemption of mobile food vendors under newly enacted Florida Statutes Section 509.102. The statutory language is vague regarding the extent of the preemption, and many in the brick and mortar restaurant industry have expressed the belief it creates a double-standard for their competitors. While there are certainly areas where citizens may benefit from uniform, statewide regulations, there are many areas that are better dealt with at the local level, where citizens have access to local politicians and the local decision-making process through town hall, board, and city council meetings. The road to lobbying representatives in the capital for legislative change is much more cumbersome. When a preemption bill fails to adequately address the myriad of issues that arise, some of which are unique to a particular locality, it’s all the more difficult to address those issues on a state level.
Joseph A. Adams is an Assistant County Attorney at the Lee County Attorney’s Office. Joe received his J.D. with a Certificate in Environmental and Land Use Law from the University of Florida Levin College of Law in 2016 and has focused his practice in local government and land use law since that time. Amanda L. Swindle is a Senior Assistant County Attorney at the Lee County Attorney’s Office. Amanda received her J.D. from the Florida State University College of Law in 2010 and her LL.M. in Taxation from the University of Florida Levin College of Law Graduate Tax Program in 2011. She is certified by the Florida Bar as an expert in City, County, and Local Government Law.