Talk about preemption: FL Leg could let businesses ride herd on local governments

They could sue over ordinances that hurt their revenues or profits

By: - December 1, 2021 10:52 am

The Florida Capitol on Jan. 20, 2021. Credit: Michael Moline/Florida Phoenix

The Republicans who dominate the Florida Legislature may soon empower business owners to sue cities and counties for passing ordinances that cause them financial losses.

During a hearing before the Senate Judiciary Committee this week, Republican Travis Hutson pitched his proposal as a form of preemption — that is, a way to overrule local ordinances that offend the GOP’s conception of free enterprise.

The bill would relieve the Legislature of having to pass laws striking down those ordinances, one by one — as it has been doing with some regularity in recent years, notwithstanding the Florida Constitution’s “Home Rule” language, ostensibly giving local governments control over local laws.

“Many of us are tired of coming up here and passing a one-off preemption bill that local governments have to follow because the state had preempted them,” Hutson told the committee.

If his measure passes, “we may not come up here and preempt every year because we could say that is being handled at the local level through the court process, or the businesses are being made whole at the local level,” he said.

The committee passed the bill, SB 620, on a 7-4, party-line, vote. Similar legislation has been filed in the House.

Hutson, representing St. Johns, Flagler, and a portion of Volusia counties, cited the examples of the recent Miami Beach referendum rolling back closing times for bars from 5 a.m. to 2 a.m. because of noise and crime (see this Associated Press report) and regulation of nitrogen levels on farms.

Additional recent preemption measures have blocked local efforts to fight climate change and keep mammoth cruise ships out of Key West, where they have damaged water quality.

The law would apply equally to commission-approved ordinances and those OK’d by voters, Hutson said. He suggested local governments night have to factor their liability for any economic hit to businesses when calculating the fiscal impact of ordinances and ballot initiatives.

Hutson said he modeled his bill on existing eminent domain law.

Businesses would have to have operated for at least three years and incur revenue or profit losses of at least 15 percent. The law wouldn’t apply to ordinances or charter provisions required to comply with federal or state law or emergency ordinances. There’s also an exemption for “an ordinance or a charter provision that increases economic freedom.”

Businesses even could recover losses if a local government bans them from dumping toxins into waterways, Hutson said. Again, he indicated, the government would have to factor in the costs or reimbursing those businesses for any expenses they incur in changing their processes.

Alternatively, governments could grandfather in existing businesses from tighter regulations, he said.

Democrat Tina Polsky, representing parts of Broward and Palm Beach counties, complained that the Legislature is overly fond of preempting local governments.

“I’m concerned about local governments being the boogey man for everything. They are trying to do right. They’re elected to do right and they’re not about hampering businesses, and so I think that whole premise needs to get off the table,” Polsky said.

Republican Jim Boyd, representing parts of Manatee and Hillsborough counties, complained that local officials passed an ordinance that will close a family’s business. He did not name the business, but the Manatee County Commission voted this summer to ban the retail sale of dogs and cats — an effort to eradicate inhumane puppy mills.

“This is a family that’s invested their life savings in a business,” Boyd said. “How is that right? How can we not deal with that as a state Legislature? I agree — local governments ought to be able to control. But that is out of control, in my view. That’s anti-American, that’s anti-capitalism, and that’s just flying in the face of what we all are up here to try to support.”

Critics claimed the bill’s terms remain vague. Rebecca O’Hara of the Florida League of Cities noted that there’s be no need for businesses to show a government foresaw any damage or let it attempt to mitigate it. Furthermore, businesses wouldn’t be required to notify governments if a pending ordinance would harm them but would be allowed to sue after the fact.

She suggested carve-outs for ordinances that apply to everyone, including noise ordinances or those affecting traffic or parking, or that the state authorizes local governments to pass.

The Florida Association of Counties also opposed the bill. That organization’s Robert McKee complained that it makes no provision for seasonal fluctuations in business income in a state heavily dependent on tourism. Wakulla County Commissioner Ralph Thomas suggested businesses might even sue over broadly applied increases in local option gas taxes, for example.

“This bill does absolutely nothing to define how we measure a loss to the business,” Thomas said — in fact, much of the text covers how to document business losses and figure attorney fees in successful challenges.

Also opposing the measure were the Sierra Club of Florida and Florida Conservation Voters. Sierra’s David Cullen argued the bill would force taxpayers to bear the cost of remediating harms businesses inflict on communities’ quality of life or environment.

“One of the primary roles of government is to protect its citizens. This bill would cripple local governments’ ability to fulfil that responsibility,” Cullen said.

Rich Templin of the Florida AFL-CIO warned the bill could undo local initiatives in areas including solar energy and hiring preferences for city and county residents.

Jon Harris Maurer, public policy director of Equality Florida, a lobby for LGBT people, worried the bill would bar cities and counties from banning conversion therapy — “A dangerous and fraudulent practice that seeks to change someone’s sexual orientation or gender identity,” he said.

Organizations in support included Associated Industries of Florida, Americans for Prosperity, and the Florida Chamber of Commerce.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

MORE FROM AUTHOR