By Noreen Marcus, FloridaBulldog.org
The new year promises hopeful resolutions, healthier diets and, in the Florida state Capitol, more pounding away at the battered right of home rule.
Home rule is, for instance, what empowers Miami Beach commissioners to pass building regulations aimed at preserving their Art Deco tourist magnet. Urban centers suffering from rampant gun violence wanted — but weren’t allowed — to use their home rule authority for firearms control.
Florida voters added home rule to the state Constitution in 1968. Thereafter, Tallahassee legislators stuck to statewide governance and left local issues such as zoning to city and county decision-makers.
Yet today’s Legislature is reclaiming power in an increasing number of areas, from setting heat standards for outdoor workers to protecting waterways from fertilizer runoff and approving plans for affordable housing.
To expand their turf, legislators and their lawyers zealously deploy the doctrine of preemption: State laws beat out local laws; no foul, no contest.
“We’re always dealing with what seems to be Tallahassee’s growing appetite for regulating everything local,” said Edward Guedes, a Miami appellate lawyer who represents municipalities.
LEGISLATORS COPY DESANTIS
Observers agree Gov. Ron DeSantis accelerated the anti-home rule trend.
DeSantis, a candidate for the Republican presidential nomination, leads by preemptive example.
Among other actions, he removed two elected state circuit prosecutors, both Democrats. And he replaced the board of what was Walt Disney Co.’s special taxing district with hand-picked loyalists when Disney challenged the DeSantis-backed “don’t say gay” education law.
Predictably, the Republican-dominated Legislature is taking cues from the governor about how to kneecap home rule.
“In issue after issue, legislative session after legislative session, state lawmakers are strongly encouraged by DeSantis to find all sorts of ways to undermine local governments and local democracy,” said Nestor Davidson, a legal consultant to the national nonprofit Local Solutions Support Center.
Anti-home rule fever seems to be sweeping state legislatures across the nation. This year alone the center counted nearly 700 bills targeting local control of issues including police defunding, abortion, and LGBTQ and voting rights. Legislators had passed at least 92 of the bills by mid-October.
Florida and Texas stand out among the handful of states that use preemption as an intimidation tactic to muzzle local officials, according to Davidson, a law professor at Fordham University in New York.
FLORIDA’S ‘DEATH STAR LAW’
He noted the city of Houston recently won a court declaration that a Texas law “is trying to take the heart of home rule away.”
“The Death Star Law,” as opponents call it, allows special interests to sue municipalities in Texas (the “lone star” state) in bids to overturn local regulations in a broad swath of areas. The Texas Supreme Court is reviewing the law.
“Florida is trying to replicate this model,” Davidson said.
Now Florida legislators have a razor-edged ax to wield against local officials who dare to pass ordinances that Tallahassee opposes. Thanks to a statutory penalty the Florida Supreme Court upheld early this year, any such “knowing and willful” act of defiance risks personal financial ruin.
Florida Statute Section 790.33, passed in 1987, says only the state has the authority to regulate firearms and ammunition. In 2011 the Legislature added these civil penalties for breaching this preemption statute: the offending city or county official must pay a fine of up to $5,000, the municipality can’t cover the official’s attorney’s fees and costs and must pay the winner’s fees and costs, and the municipality may be liable for up to $100,000 in “actual damages.”
Then-Agriculture Commissioner Nikki Fried, 33 municipalities and more than 70 elected officials, mostly from South Florida but also Tallahassee, Orlando, Gainesville and St. Petersburg, decided to test the law before moving ahead with gun-control ordinances.
SUPREMES PICK UNIFORMITY
“It’s hardly a surprise to anyone that gun and ammunition ownership and regulation are not the same in Miami-Dade County as they are in Clay County. The issues and the problems are not the same,” said Guedes, co-counsel for the lead petitioner in the lawsuit, Weston, and 24 other municipalities.
“Tallahassee says there’s a uniform approach, yet that doesn’t alter what’s on the ground locally,” he said. “Still they say, we know best for every locality and we’re gonna preempt.”
The municipalities asked for a court declaration that the statutory penalties are invalid because they violate laws protecting local officials and the city and county legislative process. The petitioners won at the trial court level but lost in the First District Court of Appeal and finally, on Jan. 19, 2023, lost again in the Florida Supreme Court.
“It is not a core municipal function to occupy an area that the Legislature has preempted, and local governments have no lawful discretion or authority to enact ordinances that violate state preemption,” Justice Ricky Polston wrote for the majority.
Justice Jorge Labarga repeated the trial judge’s reasoning in his dissent. Because of separation of powers, “Florida courts cannot question any legislator about her or his legislative process because it would be impermissible judicial meddling in a purely political matter.”
Therefore, having a judge decide whether a public official’s action “was ‘knowing and willful’ amounts to nothing less than an impermissible judicial intrusion into the official’s legislative thought process, and it undermines the official’s ability to effectuate the constituents’ will,” Labarga wrote.
GIVING UP IS ‘EASIER’
Perhaps Labarga needn’t have worried about judges psychoanalyzing local officials – the statute is working so well as a deterrent, complaints hardly ever make it to court, according to Guedes.
He said preemption violation lawsuits have been filed or threatened, but they’re quickly settled or otherwise resolved short of litigation.
“What local official has the stomach for being sued under that provision?” he asked. “It’s not just the $5,000 fine, it’s that your defense costs can’t be paid by your locality.
“Normally if you’re sued for conduct within your duties those defense costs are paid for by the local government, but under this, nope, if you get sued you cannot be reimbursed by the local government, it has to come out of your pocket,” Guedes said.
He said city employees who enforce a controversial ordinance can also be sued. “Inevitably there’s so much pressure on the local government to make it go away … It’s a very effective statute in that respect.
“Who wants to volunteer for this? Why would I engage in public service?” Guedes asked. “It’s so much easier to give up.”
MORE PREEMPTION AHEAD
Gearing up for the session that begins Jan. 9, legislators have pre-filed more than a half-dozen bills that would strip away powers from local governments.
One filed by Rep. Wyman Duggan, R-Jacksonville, would shut down the state’s 21 civilian oversight agencies and end local attempts to probe misconduct complaints against law enforcement and correctional officers.
Duggan’s rationale is uniformity, but a story in the Daytona Beach News-Journal suggests something else may be at play. It says a report last year from the LeRoy Collins Institute at Florida State University found a “stark decrease in Black arrest rates” in cities with police review boards and a “net positive for both officers and civilians.”
The Florida Association of Counties’ website lists three other noteworthy preemption bills.
One would ease child labor restrictions for minors “in certain occupations” – which ones are unclear – while prohibiting cities and counties from setting more stringent curfew guidelines than the state’s. The bill also lifts some protections for “children in domestic service in private homes, minors employed by their parents, or pages in the Florida Legislature.”
Another establishes term limits for county commissioners after eight consecutive years in office – no matter what a county’s charter says, unless it sets more restrictive term limits.
And the third “strips counties and municipalities of general law authority to set the maximum rates for the towing of vehicles and vessels from a wrecker service,” the county association’s website says.
“We try to work with legislators as they look at different policy positions to make sure local governments retain the ability to react to the demands of their citizens,” said Cragin Mosteller, the county association’s director of external affairs.
Guedes said voters would need to amend the Constitution to change the language that the state leverages to preempt local governments.
“Nobody wants to take up the fight, but as long as the provision reads the way it reads, home rule power will always be the poor stepchild because the Legislature can always come along and say, ‘Anything you’ve done is now invalid,’”he said.
“It’s just a very twisted irony that at the level where democracy is supposed to work at its best, its most responsive, that’s where Tallahassee is taking power away.”