Preemption has been a theme in the Florida State Legislature for years with about 50 bills seeking to restrict local government’s law-making capacities in 2019 and nearly 20 already introduced for the 2020 legislative session, which begins next week.
An analysis by a nonprofit watchdog claims the Republican-controlled Legislature is wielding punitive preemption “to punish local governments for enacting progressive legislation” at the behest of lobbyists and special interests.
“The use of preemption as a strategy by the Florida Legislature has become heavy-handed,” said Ben Wilcox of Integrity Florida and co-author with Alan Stonecipher of the analysis, "Preemption Strategy: The Attack on Home Rule in Florida."
Wilcox, Integrity Florida’s research director, said preemption has been a tool used by the federal government to restrict states’ capacities and states to cuff municipalities since the nation was founded.
What was created as a tool to define administrative jurisdiction and reduce redundancy has evolved into a weapon to foil local control on issues important to residents but opposed by business and industry, he said.
“What’s new, is that it has become more widespread, more politicized and more intense, leading to a new batch of labels to describe them: maximum preemption, blanket preemption, nuclear preemption and super-preemption,” Wilcox said.
Preemption has been a broiling issue in the Sunshine State since 2011, when lawmakers added financial and political penalties to the 1987 preemption law that prevents municipalities from adopting their own gun laws.
Those penalties were declared unconstitutional by Leon County Circuit Judge Charles Dodson in July. The state is appealing that ruling.
The 2019 legislative session generated a raft of nearly 50 preemption bills, producing laws prohibiting local governments from banning front-yard gardens, collecting fees from communications providers that use public rights-of-way and awarding attorney fees and damages to prevailing parties in lawsuits sparked by a local government ordinance that exceeds its jurisdiction under the state Constitution or state law.
Another bill, House Bill 711, passed by House 87-23 and by the Senate, 24-15, imposed a five-year suspension of local bans of plastic straws.
That bill was nixed by Gov. Ron DeSantis when he issued his first veto as governor, who called it a legislative overreach.
“Opponents of the bill had little hope that Gov. DeSantis would buck the will of the Legislature, but that’s exactly what he did,” Wilcox said. “In his veto message, Gov. DeSantis sought to find the right balance for when preemption is justified and necessary.”
But the most “dangerous” 2019 preemption bills, he said, were HB 1299, sponsored by Rep. Spencer Roach, R-North Fort Myers, the so-called “Governmental Powers Preemption Train,” and HB 3, sponsored by Rep. Michael Grant, R-Port Charlotte, which sought to eliminate all local business regulations and occupational licensing.
HB 1299 failed to gain traction in committee and HB 3, after passing three House committees and being approved by the House in an 88-24 vote, died In the Senate without a committee hearing.
Grant has reintroduced the same bill for 2020, also titled HB 3.
The analysis notes preemption bills are often boosted by the Associated Industries of Florida (AIF), Florida Chamber of Commerce, Florida Retail Federation (FRF) and Florida Restaurant & Lodging Association (FRLA), which claim local laws create a hodgepodge of laws that add unnecessary cots to their bottom lines.
During the 2018 election cycle, according to Integrity Florida, the AIF spent more than $11.6 million and has 27 registered lobbyists, the Florida Chamber spent more than $9 million and has 25 lobbyists and the FRLA fielded a team of 17 lobbyists.
Still, Florida's pro-business environment and low taxes – it has no income tax – often are cited as one of the reasons it is among the fastest-growing states in the country.
The Census Bureau estimates the state’s population grew by 2.6 million new residents between 2010-19 as Florida surpassed New York to become the nation’s third most-populous state with 21.5 million residents. And through November, Florida gained 217,400 jobs last year, an increase of 2.5 percent, according to the state’s Department of Economic Opportunity.
Integrity Florida’s analysis offers three ways to curtail punitive preemption:
• Require super-majority approval (two-thirds of chamber majorities) of bills preempting local government authority.
• Mandate a single-subject requirement for preemption bills.
• Prohibit imposition of fines and penalties on local governments that violate legislative preemptions.
“New preemptions have been motivated variously by partisan, ideological or special interest concerns,” Stonecipher said. “Some Republicans, admittedly, are blocking what they call ‘rogue local governments’ that pass progressive ordinances. Special interests have targeted local ordinances raising the minimum wage, affecting workforce leave policies and passing environmental laws.”
“It’s a trend that should be concerning to those of us who believe in the traditional conservative principle that government governs best when it is closest to the people,” Wilcox said. “A lot of times, local governments are being responsive to the desires of their constituents.”