Lawmakers don’t want locals to have local laws – like banning plastic bags and straws. Julie Hauserman photo
After the mass shooting at Marjory Stoneman Douglas high school in South Florida, the mayors of twenty Florida cities filed a legal challenge to a state firearm law. The controversial law allows the state to impose a $5,000 fine on any local official that dares to pass local gun regulations.
The firearm law is an example of a growing problem for local governments – the Republican-led Legislature keeps attacking “home rule,” the right of municipalities to pass laws that suit individual communities.
Critics of the state’s heavy-handed approach say that Republicans in the state Legislature are spitting on the grave of founding father Thomas Jefferson, who said that “the government closest to the people, serves the people best.”
From fighting local bans on plastic bags and polystyrene to neighborhood regulations on vacation rentals and cellular towers, the Legislature is increasingly trying to supersede local home rule.
Last week, the state and several other defendants – including Attorney General Pam Bondi, Agricultural Commissioner Adam Putnam and CFO Jimmy Patronis – filed a motion to get the mayors’ lawsuit over gun regulations dismissed. The court hasn’t yet ruled. The gun law threatens mayors, city commissioners, and county commissioners with fines of up to $5,000 – and the potential for removal from office – if they “knowingly and willfully” violate the law.
When the Legislature convenes in the spring, there will surely be more bills filed to preempt local laws. Observers say that the Legislature might once again consider statewide laws to supersede local regulations on vacation rentals, as well local rules on red-light traffic cameras and communications sales taxes.
Local officials are frustrated that they have to keep telling the Legislature to back off their communities.
“We think that cities work pretty darn well,” says Scott Dudley, Legislative Director with the Florida League of Cities. “We think that it’s the level of government that’s closest to the people, and poll after poll indicates that. That’s who the people trust more to be responsive to their needs and wants. We just wish the Legislature would let us work the way we’re supposed to work.”
Florida’s concept of home-rule was established in the state constitution in 1968 and affirmed in 1973, when the Legislature passed the Home Rule Powers Act.
The legal battle over the local firearm laws stretches back to a state law passed in 1987 and made much more onerous for local officials in 2011. That’s when the legislation sponsored by Matt Gaetz (then a Republican state representative from Fort Walton Beach, now serving in Congress) added the fines for local officials.
The law made headlines six years ago, when Tampa mayor Bob Buckhorn wanted to put local firearm rules in place during the Republican National Convention. Buckhorn tried to create an enhanced security perimeter near the convention site at Amalie Arena. The so-called “Clean Zone” banned air pistols, masks and string longer than six inches long, but could not prevent anyone from carrying a loaded gun.
Buckhorn says that the attack on home rule has grown much worse since then, going as far as to consider it “almost like an invasive species of plant that has overtaken the state.”
“Not only are they prohibiting doing anything on guns or gun violence, but now they’re getting into our revenue sources,” the Tampa mayor complains. “They’re even reaching as far down as trying to tell us what type of tree ordinances are appropriate or not. It’s that insidious.”
Adds Ginger Delegal, Executive Director of the Florida Association of Counties: “I do think that the rhetoric has changed from leaders up here in Tallahassee towards their leaders back home in a negative way.”
Few have been as outspoken about the power of the state over local governments than Richard Corcoran, outgoing speaker of the Florida House. He stunned a mostly liberal audience in Tampa last year by giving a full-throated endorsement for the Legislature to override local leadership on a variety of issues.
“To get something through on a local level you have to win over seven or five people,” Corcoran said at the time. “To get something through in Tallahassee, you’ve got to get something through one chamber with 120 people, something through another chamber that has 40 people, and then you have an executive with veto power. The greater input from more and more people, as our founders thought, that scrutiny allows there to end up being a better and better product.”
St. Petersburg Mayor Rick Kriseman served in the Florida Legislature from 2006-2012 and believes that there are times when preemption is appropriate, but says the penalties written into the 2011 state firearm law have to be “one of the most punitive of any preemption in the U.S.”
Kriseman adds that if he were “a cynical person,” he might surmise that the Republican Party of Florida “is frustrated because they haven’t been able to take over local governments via the ballot box” so they’re doing so by preempting local power.
Both Buckhorn and Kriseman point an accusing finger at ALEC, the American Legislative Exchange Council, as leading the national charge for the attack on home rule.
ALEC has been bashed by progressives for years for hosting annual conferences that produce so-called “model” legislation that Republicans then attempt to push through in their respective state legislatures. In 2014, the group created a new organization called the American City County Exchange, designed to take aim at local lawmakers around the country.
Take for instance, Florida’s extremely controversial “Stand Your Ground” self-defense law that took center stage after the killing of teenager Trayvon Martin in Central Florida in 2012.
While the law was produced originally by Florida lawmakers in 2005, ALEC helped spread it to other states.
“We definitely brought that bill forward to ALEC,” Ocala Republican Dennis Baxley, who sponsored the measure in the Florida House, told Mother Jones magazine. “It’s a place where you can share ideas. I don’t see anything nefarious about sharing good ideas.”
Then there is the fight over local government bans on plastic bags and polystyrene containers. In 2016, Coral Gables tried to ban foam take out containers as a way to keep local beaches cleaner. A powerful lobbying group, the Florida Retail Federation, filed suit against Coral Gables. A judge upheld the ban and the Retail Federation has appealed.
Because of that legal flap, attorneys representing cities like Palm Beach and St. Petersburg are recommending against banning plastic bags, though local officials say they want to. St. Pete City Councilwoman Darden Rice says her board will look at a “comprehensive ordinance in August that addresses straws, polystyrene and bags.”
While some of the Florida Legislature’s proposals may seem heavy-handed, people who advocate for more state control say it’s much easier to pass a statewide law then to have differing laws in 67 counties, especially for corporations.
Such was the case when it came down to trying to pass regulations on ride-sharing services like Uber and Lyft. The companies negotiated agreements with different counties, and the rules weren’t consistent on background checks and permitting. The Legislature ended up passing a statewide regulatory law governing the ride-sharing companies last year.
Also last year, technology companies urged the Legislature to pass a law to pre-empt local controls so the companies could install new 5G cellular phone technology infrastructure. 5G is considered the next generation of telecommunications, with speeds of up to 100 times faster than 4G technology.
Advocates for wireless companies argued that many existing cell towers need to be replaced since they can’t handle the huge new demands for data.
When those companies began working with hundreds of jurisdictions and zoning and building departments, the results were unsatisfying, leading them to push for a statewide law governing what local governments can and can’t do about the towers. The GOP-led Florida Legislature sided with the technology companies and passed a state law. Since 2016, 12 other states have passed similar bills regarding 5G technology.
“All of us want high-speed communications and capabilities,” says Tampa mayor Buckhorn. “But what works in Lakeland may not be appropriate in Tampa. That’s why you have local governments decide the standards that your community wants you to achieve. And (for the state) to say that local government has no ability or isn’t smart enough to figure this out and hand this over to your special interest lobbyists pals…that’s just wrong.”
While rare, the current lawsuit challenging the state law on fining local officials for implementing gun control regulations is not the first time that a mayor has challenged the state. In 2016, then-Miami Beach Mayor Philip Levine (now a Democratic candidate for governor,) proposed raising his city’s minimum wage to $13.31 by 2020, knowing full well that it was in violation of a 2005 state law that prohibits local officials from setting their own minimum wage.
The state (as well as several large retail giants) joined in on a lawsuit to thwart the proposal, and so far they’ve been successfully backed up by two courts. In his governor’s campaign, Levine argues that cities should be allowed to set up their own minimum wage. The other Democratic candidates say it should be a statewide $15 per hour rate.
On the GOP side, “Republicans were taught in the crib that local government is the best government,” Clearwater Mayor George Cretekos told a crowd at a Tiger Bay gathering. “They must be drinking some strange water in Tallahassee.”
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