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STATE OF FLORIDA ISSUES - HOME RULE
Home Rule and Preemption
Home rule gives local governments broad authority to legislate on matters that are not in conflict with federal or state law. Historically in the United States, it has been the sole right of local government to determine the character of their individual community and enforce that vision through zoning ordinances.
Preemption is a legal mechanism that empowers states to override local governments. If the state applies its preemption right, the local government is unable to use its authority in that particular area.
Preemption interferes with voters’ ability to establish the direction of their own communities in response to local conditions. Preemptive government action is moved from the entity closest to the people, local governments, and to the Legislature in Tallahassee, giving it the power.
Preemption has evolved from a practice that involved narrow issues of regulation and was designed to align state and local laws to make sure there were no inconsistencies.
For several years a revolution has been under way in the relationship between states and their local governments. In many states, including Florida, legislatures are passing “preemptive” laws that weaken the home rule powers of cities and counties.
During Florida legislative sessions over the last several years, dozens of bills have been presented intended to preempt local control.
Click here to see the preemption bills filled in 2021 according to the Florida League of Cities (24 bills as of March 15).
Click here to read Legislative Bill Summaries (floridaleagueofcities.com)
One interesting bill is HB 215 which would prohibit a local government from using public funds to retain a lobbyist to represent the local government before the legislative or executive branch. It would permit a full-time employee of local government to register as a lobbyist and represent the local government before the legislative or executive branch. The bill would also prohibit any person, except a full-time employee, from accepting public funds for lobbying.
Is this an effort to provide well-funded industries with the bulk of the lobbying influence, taking away the influence of the local governments that represent the will of the people?
The preemption that is perhaps the most troublesome to Islamorada and the Florida Keys over the last few years is related to vacation rentals.
The vacation rental industry is an important phenomenon that fills a market demand and promotes tourism in Florida. Well-planned communities certainly can accommodate seasonal visitors without sacrificing the character of our neighborhoods. Shouldn’t it be left to local governments to determine the rules and limits? Islamorada vacation rental issues are absolutely not the same as the issues in a vast portion of the state. Don’t we deserve Village-specific rules?
In 2011, the Florida Legislature prohibited cities from regulating short-term vacation rentals. Vacation rental ordinances passed before June 1, 2011, like Islamorada’s, are “grandfathered” by the state statute.
In 2014, the Legislature passed a bill which allows local governments to adopt ordinances specific to these rentals so they can address some of the noise, parking, trash and life-safety issues created by their proliferation in residential neighborhoods.
However, the State of Florida prohibits local governments from restricting where vacation rentals are allowed, the number of vacation rentals, the frequency and the duration: all restrictions that Islamorada incorporated into their 2003 ordinance after months and months of public debate aimed at satisfying people on both sides of the issue with a logical compromise.
Municipalities, like Islamorada, with pre-2011 ordinances, are still allowed to regulate the number of licenses and locations of short-term rentals, but questions remain. Will grandfathered ordinances continue to be valid if they are amended? Will the legislature remove the grandfathering?
The Vacation Rental Industry, citing overreach by local government, regularly pours millions of dollars into lobbying efforts to convince state legislators to introduce bills that severely restrict the home rule authority of local government whether grandfathered or not. In addition, there have been attempts to eliminate association restrictions that forbid short term rentals by condo and homeowner associations.
Nearly 400 ships brought 1.2 million cruise guests to the shores of Key West in 2019. Local Key West residents believe the city has been experiencing significant environmental damage in their narrow ship channel and that the high turbidity levels are lethal to sea life there.
And so in November of 2020, Key West voters overwhelmingly approved three ballot questions that restrict the number of daily cruise ship visitors, ban vessels carrying more than 1,300 passengers and prioritize docking for cruise lines with the best health and environmental records.
Key West voters chose to turn its focus to small ships that can coexist with the overnight visitors that drives their tourist economy in an effort to foster a more supportive business environment.
Then the Florida legislature convened on March 2, 2021 and Sen. Jim Boyd, from Bradenton filed Senate Bill 426, which would preempt the Key West charter changes by taking away port cities’ authority to turn away ships, based on size, passenger count or other characteristics.
The Islamorada Village Council voted to support Key West in their effort to protect home rule.
Islamorada passed an ordinance a year ago with limitations as to the number of food trucks that can be licensed within the Village and where they can be located. Shortly after that, the 2020 legislature approved a statute that provides limitations as to the local government’s opportunity to regulate food trucks.
The new forms of preemption can include punitive provisions, which hold local governments and officials liable for violating state preemption legislation by subjecting local governments and officials to penalties such as fines, damages and removal from office.
The use of punitive preemption in Florida is now at issue in an appellate court in Tallahassee. The case in question involves punishments inflicted by the Legislature in 2011 for any violation of the state’s preemption of firearms regulation. It results from suits filed by cities, counties and local officials after the Parkland High School shooting and challenges the 2011 punitive revisions to the 1987 firearms preemption law.
Punitive preemption laws, if determined to be constitutional, could change the type of candidates who run for office, deterring qualified people from seeking election to local positions.