This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0403b.CIV
DATE: 2/14/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 403 Local Ordinances
SPONSOR(S): Giallombardo
TIED BILLS: IDEN./SIM. BILLS: SB 280
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration & Veterans Affairs
Subcommittee
11 Y, 4 N Darden Miller
2) Civil Justice & Property Rights Subcommittee Mawn Jones
3) State Affairs Committee
SUMMARY ANALYSIS
Local governments have broad authority to legislate on any matter not inconsistent with federal or state law.
If the Legislature preempts an area of regulation to the state, local governments are prohibited from exercising
authority in that area. If a local government enacts an ordinance on a matter preempted to the state, a person
may file a lawsuit asking the court to declare the ordinance void.
Florida law allows for an award of attorney fees to a prevailing party challenging an ordinance adopted or
enforced by a local government that is expressly preempted by the Florida Constitution or state law. However,
attorney fees and costs may not be awarded against a local government if it:
Receives written notice that an ordinance or proposed ordinance is expressly preempted; and
Within 30 days of receiving the notice, withdraws the proposed ordinance; or, in the case of an adopted
ordinance, notices an intent to repeal the ordinance within 30 days of receiving the notice and repeals
the ordinance within 30 days thereafter.
This provision does not apply to ordinances relating to growth management, building codes, fire prevention
codes, or biosolids and is supplemental to other sanctions or remedies available under law or court rule.
HB 403:
Provides that a court may award attorney fees to a complainant who successfully challenges a local
government ordinance on the grounds that the ordinance is arbitrary or unreasonable, or that the
ordinance is prohibited by a law other than an express preemption;
Requires counties and municipalities to prepare a “business impact statement” before the adoption of
any proposed ordinance, which statement must be published on the local government’s website and
contain specified information;
Requires the suspension of enforcement of a newly enacted ordinance in certain situations;
Provides for expedited court review of challenged ordinances;
Establishes criteria for courts to consider when determining if an ordinance is arbitrary or
unreasonable; and
States that the legislature finds that the act fulfills an important state interest.
The bill does not appear to have a fiscal impact on state government, but may have an indeterminate negative
fiscal impact on local governments. The bill also may have an indeterminate positive fiscal impact on private
parties who successfully challenge a local government's enactment or enforcement of an ordinance.
The bill provides an effective date of October 1, 2022.
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Ordinances
The Florida Constitution grants local governments broad home rule authority. Non-charter county
governments may exercise those powers of self-government that are provided by general or special
law.
1
Counties operating under a county charter have all powers of self-government not inconsistent
with general law or special law approved by the vote of the electors.
2
Municipalities have governmental,
corporate, and proprietary powers that enable them to conduct municipal government, perform
municipal functions and provide municipal services, and exercise any power for municipal purposes
except when expressly prohibited by law.
3
A local government enactment may be inconsistent with
state law if the:
State Constitution preempts the subject area;
Legislature preempts the subject area; or
Local enactment conflicts with a state statute.
Local governments exercise these powers by adopting ordinances. The adoption or amendment of a
regular ordinance (other than an ordinance making certain changes to zoning) may be considered at
any regular or special meeting of the local governing body.
4
Notice of the proposed ordinance must be
published at least ten days before the meeting in a newspaper of general circulation in the area; state
the date, time, and location of the meeting, the title of the proposed ordinance, and locations where the
proposed ordinance may be inspected by the public; and advise that interested parties may appear and
speak at the meeting. Municipal ordinances must also be read by title or in full on at least two separate
days.
5
Ordinances may only encompass a single subject and may not be revised or amended solely by
reference to the title.
6
A county may adopt an emergency ordinance that bypasses the notice requirement if the governing
body declares that an emergency exists requiring the immediate enactment of the ordinance and the
ordinance is approved by a four-fifths vote.
7
A municipality may adopt an emergency ordinance by two-
thirds vote.
8
An emergency ordinance may not be used to adopt zoning changes.
9
Reasonableness
The legislature may not constitutionally delegate to a local government the power to enact an
unreasonable ordinance; thus, a local ordinance must be reasonable and may be challenged on the
grounds of unreasonableness.
10
A court determining whether a challenged ordinance is reasonable
applies the “rational basis” review standard, under which the court will uphold the ordinance if it is at
least debatable that a rational relationship exists between the regulation and a legitimate governmental
purpose.
11
Where such an ordinance’s reasonableness is fairly debatable, a court will not substitute its
1
Art. VIII, s. 1(f), Fla. Const.
2
Art. VIII, s. 1(g), Fla. Const.
3
Art. VIII, s. 2(b); see also s. 166.021(1), F.S.
4
See ss. 125.66(2)(a) and 166.041, F.S.
5
S. 166.041(3)(a), F.S.
6
Ss. 125.67 and 166.041(2), F.S.
7
S. 125.66(3), F.S.
8
S. 166.041(3)(b), F.S.
9
Ss. 125.66(3) and 166.041(3)(b), F.S.
10
State ex rel. Harkow v. McCarthy, 126 Fla. 433 (Fla. 1936); Gates v. City of Sanford, 566 So. 2d 47 (Fla. 5th DCA 1990); Gustafson
v. City of Ocala, 53 So. 2d 658 (Fla. 1951); 12A Fla. Jur. 2d Counties, Etc, § 224.
11
Martin County v. Section 28 Partnership Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000); City of Miami v. Kayfetz, 92 So. 2d 798 (Fla.
1957); City of Miami Beach v. Lachman, 71 So. 2d 148 (Fla. 1953); Dennis v. City of Key West, 381 So. 2d 1980 (Fla. 3d DCA 1980);
12A Fla. Jur. 2d Counties, Etc, s. 224. STORAGE NAME: h0403b.CIV PAGE: 3
DATE: 2/14/2022
judgment for that of the local governing body, “there being a peculiar propriety in permitting inhabitants
of a [jurisdiction] through its proper officials to determine what rules are necessary for their own local
government.”
12
The fact that opinions may differ as to a local ordinance’s reasonableness is insufficient
to void the ordinance, even if the policy’s wisdom is debatable and its effects are uncertain.
13
Preemption
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred.
14
To expressly preempt a subject area,
the Legislature must use clear statutory language stating its intention to do so.
15
Implied preemption
occurs when the Legislature has demonstrated an intent to preempt an area, though not expressly.
Florida courts find implied preemption when "the legislative scheme is so pervasive as to evidence an
intent to preempt the particular area, and where strong public policy reasons exist for finding such an
area to be preempted by the Legislature."
16
Where state preemption applies, a local government may not exercise authority in that area.
17
Whether
a local government ordinance or other measure violates preemption is ultimately decided by a court. If
a local government improperly enacts an ordinance or other measure on a matter preempted to the
state, a person may challenge the ordinance by filing a lawsuit. A court ruling against the government
may declare the preempted ordinance void.
18
Attorney Fees, Costs, and Interest
In Florida, a party generally may recover attorney fees only if authorized by statute or agreement of the
parties. This is known as the “American Rule.”
19
Attorney fees as a sanction, however, generally may
be levied only where an action was taken primarily for the purpose of causing an unreasonable delay or
a party brings an unsupported claim or defense, such as a claim or defense unsupported by the:
Material facts necessary to establish the claim or defense; or
Application of then-existing law to the material facts.
20
Attorney fees as a sanction may not be imposed:
Where a party reasonably presented a claim or defense as a good faith argument for the
extension, modification, or reversal of existing law;
Against the culpable party's attorney, if the attorney acted in good faith based on his or her
client's representations as to material fact; or
Against a represented party whose attorney raised an unsupported legal claim or defense.
21
A party may appeal a court's ruling on sanctions, and the appellate court must review the award or
denial of sanctions under the abuse of discretion standard, meaning that the appellate court must
uphold the lower court's decision unless it was "arbitrary, fanciful, or unreasonable."
22
12
Lachman, 71 So. 2d at 152; Kayfetz, 92 So. 2d at 801; Dennis, 381 so. 2d at 314; State v. Sawyer, 346 So. 2d 1071 (Fla. 3d DCA
1977).
13
Silvio Membreno and Florida Ass’n of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13 (Fla. 3d DCA 2016).
14
See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d
1011, 1018 (Fla. 2d DCA 2005).
15
Mulligan, 934 So. 2d at 1243.
16
Tallahassee Mem. Reg. Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996).
17
D’Agastino v. City of Miami, 220 So. 3d 410 (Fla. 2017); Judge James R. Wolf and Sarah Harley Bolinder, The Effectiveness of
Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009).
18
See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So. 2d 504 (Fla. 3d DCA 2002).
19
Dade County v. Peña, 664 So. 2d 959, 960 (Fla. 1995); Reiterer v. Monteil, 98 So. 3d 586, 587 (Fla. 2d DCA 2012).
20
S. 57.105, F.S.
21
S. 57.105(3), F.S.
22
MC Liberty Express, Inc. v. All Points Servs., Inc., 252 So. 3d 397 (3d DCA 2018) (quoting Canakaris v. Canakaris, 382 So. 2d 1197,
1203 (Fla. 1980)); Ferere v. Shure, 65 So. 3d 1141 (Fla. 4th DCA 2011). STORAGE NAME: h0403b.CIV PAGE: 4
DATE: 2/14/2022
Under Florida law, the prevailing party in any civil action is entitled to an award of litigation costs,
23
including those for which account is kept by the clerk of the court
24
and other specified expenses such
as amounts for posting and maintaining bonds, court reporter fees, taxes on legal services, if
applicable, and expert witness fees under certain conditions.
25
The holder of a judgment for money damages is entitled to interest on the entire judgment amount at
the specified statutory rate.
26
If the judgment has the practical effect of determining the specific amount
of damages on the claim, or "liquidating" the claim, as of a date before the judgment, the plaintiff is
entitled to prejudgment interest at the applicable statutory rate from the date of that loss.
27
The
prejudgment interest amount is added to the remaining amounts awarded by the court for damages in
the judgment.
Additionally, Florida law provides that the prevailing party in an action challenging a local government
ordinance expressly preempted by the Florida Constitution or Florida law is entitled to attorney fees and
costs.
28
For the purpose of this provision, costs are defined as all reasonable and necessary fees and
costs incurred for preparation, motions, hearings, trials, and appeals.
29
However, attorney fees and
costs may not awarded against a local government if it:
Receives written notice that an ordinance or proposed ordinance is expressly preempted; and
Within 30 days of receiving the notice, withdraws the proposed ordinance; or, in the case of an
adopted ordinance, notices an intent to repeal the ordinance within 30 days of receiving the
notice and repeals the ordinance within 30 days thereafter.
30
The award of attorney fees under this provision is supplemental to other sanctions or remedies
available under law or court rule and does not apply to ordinances relating to growth management,
building codes, fire prevention codes, or biosolids.
31
Economic Analysis of Business Impacts
Some governmental entities conduct economic analyses of business impacts. For example, before
adopting an administrative rule, state agencies may prepare a statement of estimated regulatory cost
(SERC), estimating the potential impact of a proposed rule on the public, particularly the potential costs
to the public of complying with the rule as well as to the agency and other governmental entities to
implement the rule.
32
Agencies are encouraged to prepare a SERC before adopting, amending, or
repealing any rule.
33
However, a SERC is required if the proposed rule will have an adverse impact on
small businesses or increase regulatory costs by more than $200,000 in the aggregate within one year
after implementation of the rule.
34
If the agency revises a rule before adoption and the revision
increases the regulatory costs of the rule, the agency must revise the SERC to reflect that alteration.
35
A SERC must include:
A good faith estimate of the number of people and entities affected by the proposed rule;
A good faith estimate of the cost to the agency and other governmental entities to implement the
proposed rule;
A good faith estimate of transactional costs likely to be incurred by people, entities, and
governmental agencies for compliance; and
23
S. 57.041, F.S.
24
S. 57.021, F.S.
25
S. 57.071, F.S.
26
S. 55.03, F.S. The Chief Financial Officer determines the applicable interest rate on a quarterly basis. S. 55.03(1), F.S. The initial
interest rate for a judgment is that in effect at the time the judgment is awarded. The judgment interest rate is then adjusted annually on
January 1 to the rate in effect on that date. S. 5.03(3), F.S.
27
Argonaut Ins. Co. v. May Plumbing Company, 474 So. 2d 212, 215 (Fla. 1985).
28
S. 57.112(2), F.S.
29
S. 57.112(1), F.S.
30
S. 57.112(3), F.S.
31
S. 57.112(4)-(5), F.S.
32
S. 120.541(2), F.S.
33
S. 120.54(3)(b)1., F.S.
34
Id.
35
S. 120.541(1)(c), F.S. STORAGE NAME: h0403b.CIV PAGE: 5
DATE: 2/14/2022
An analysis of the proposed rule’s impact on small businesses, counties, and municipalities.
36
The SERC must also include an economic analysis on the likelihood that the proposed rule will have an
adverse impact in excess of $1 million within the first five years of implementation on:
Economic growth, private-sector job creation or employment, or private-sector investment;
Business competitiveness, productivity, or innovation; or
Regulatory costs, including any transactional costs.
37
If the economic analysis results in an adverse impact or regulatory costs in excess of $1 million within
five years after implementation of the rule, then the rule must be ratified by the Legislature to take
effect.
38
An agency’s failure to prepare a SERC may be raised in a Division of Administrative Hearings (DOAH)
proceeding to invalidate a rule as an invalid exercise of delegated legislative authority, if it is raised
within one year of the effective date of the rule by a person whose substantial interests are affected by
the regulatory costs of the rule.
39
Effect of Proposed Changes
Attorney Fees
HB 403 provides that a court may award attorney fees to a complainant who successfully challenges a
local government ordinance on the grounds that the ordinance is arbitrary or unreasonable, or that the
ordinance is prohibited by a law other than an express preemption law. This attorney fee provision is
prospective in nature and would only apply to cases commenced on or after October 1, 2022. However,
this provision does not apply to local ordinances adopted pursuant to part II of ch. 163, F.S. (relating to
growth management), the Florida Building Code, or the Florida Fire Prevention Code. Further, the bill
does not alter the local government’s right to cure under current law.
Business Impact Statements
The bill requires each county and municipality to prepare a “business impact statement” before
adopting a proposed ordinance, which statement must include:
A statement of public purpose, such as serving the public health, safety, or welfare;
A statement describing a reasonable connection between the public purpose and the expected
effects of the ordinance;
The estimated economic effect of the proposed ordinance on businesses both within and
outside the jurisdiction of the county or municipality, including both adverse and beneficial
effects and direct and indirect effects;
A good faith estimate of the number of businesses likely to be affected by the ordinance;
An analysis of the extent to which the proposed ordinance will deter or encourage the formation
of new businesses within the county or municipality’s jurisdiction;
An analysis of the extent to which the proposed ordinance will impede the ability of businesses
within the county or municipality to compete with businesses in other areas of the state or other
domestic markets;
The scientific basis of the proposed ordinance (if applicable);
Alternatives considered by the county or municipality that would reduce the impact of the
propose ordinance on businesses; and
Any additional information the board determines may be useful.
36
S. 120.541(2)(b)-(e), F.S.
37
S. 120.541(2)(a), F.S.
38
S. 120.541(3), F.S.
39
S. 120.541(1)(f), F.S. STORAGE NAME: h0403b.CIV PAGE: 6
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The business impact statement must be posted on the county or municipality’s website on the same
day the notice of proposed enactment of the ordinance is published. However, the business impact
statement requirement does not apply to emergency ordinances.
Ordinance Challenges
The bill prohibits a county or municipality from enforcing any ordinance that is the subject of legal
action, including any appeal, challenging the ordinance’s validity on the grounds that it is preempted by
the Florida Constitution or state law, arbitrary or unreasonable, or otherwise prohibited by law if:
The legal action is filed no later than 20 days after the effective date of the ordinance;
The plaintiff or petitioner requests suspension pursuant to the statute in the initial complaint or
petition; and
The county or municipality has been served with a copy of the complaint or petition.
The bill requires courts with a pending action in which an ordinance’s enforcement is suspended to give
such action priority over other pending cases and to render a preliminary or final decision as
expeditiously as possible.
The bill also establishes a series of factors a court must consider when determining whether an
ordinance is arbitrary or unreasonable, including:
The extent to which the ordinance protects the health, welfare, safety, and quality of life of the
residents of the county or municipality;
The impact of the ordinance on the personal rights and privileges of the residents of the county
or municipality;
The total economic impact of the ordinance; and
The business impact statement prepared by the county or municipality.
However, these provisions requiring ordinance suspension and requiring a court to analyze the factors
above do not apply to emergency ordinances or ordinances governed by Part II of ch. 163, F.S.
(relating to growth management), the Florida Building Code, or the Florida Fire Prevention Code.
Important State Interest
The bill states that the Legislature finds and declares the act fulfills an important state interest.
Conforming Changes
The bill makes conforming changes to ss. 163.2517, 163.3181, 163.3215, 376.80, 497.270, 562.45,
and 847.0134, F.S.
Effective Date
The bill provides an effective date of October 1, 2022.
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B. SECTION DIRECTORY:
Section 1: Amends s. 57.112, F.S., related to attorney fees and costs for preempted local actions.
Section 2: Amends s. 125.66, F.S., to require the preparation of business impact statements for
proposed ordinances by counties.
Section 3: Creates s. 125.675, F.S., related to legal challenges to recently enacted county
ordinances.
Section 4: Amends s. 166.041, F.S., to require the preparation of business impact statements for
proposed ordinances by municipalities.
Section 5: Creates s. 166.0411, F.S., related to legal challenges to recently enacted municipal
ordinances.
Section 6: Amends s. 163.2517, F.S., conforming a cross-reference.
Section 7: Amends s. 163.3181, F.S., conforming a cross-reference.
Section 8: Amends s. 163.3215, F.S., conforming a cross-reference.
Section 9: Amends s. 376.80, F.S., conforming a cross-reference.
Section 10: Amends s. 497.270, F.S., conforming a cross-reference.
Section 11: Amends s. 562.45, F.S., conforming a cross-reference.
Section 12: Amends s. 847.0134, F.S., conforming a cross-reference.
Section 13: Provides a statement of important state interest.
Section 14: Provides an effective date of October 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
The bill provides that a court may award attorney fees and costs, including prejudgment interest,
against a local government for passing certain ordinances and requires each local government to
prepare a business impact statement before adopting a proposed ordinance, which may have an
indeterminate negative fiscal impact on local governments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR: STORAGE NAME: h0403b.CIV PAGE: 8
DATE: 2/14/2022
The bill may have an indeterminate positive impact on private parties who successfully bring actions
challenging the enactment or enforcement by a local government, in that the private parties may be
authorized to recover their attorney fees for such actions.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
The county/municipality mandates provision of Art. VII, s. 18 of the Florida Constitution may apply
because this bill requires local governments to prepare business impact statements before the
adoption of any ordinance; however, an exemption may apply if the bill has an insignificant fiscal
impact. Additionally, an exception may apply because the bill provides a legislative finding that it
fulfills an important state interest and it applies to all similarly situated entities that adopt ordinances.
2. Other:
Separation of Powers
Article II, section 3 of the Florida Constitution, known as the “separation of powers doctrine,”
provides that “no person belonging to one branch shall exercise any powers appertaining to either of
the other branches unless expressly provided [in the constitution].” The Florida Constitution vests
legislative power in the legislative branch, executive power in the executive branch, and judicial
power in the judicial branch.
40
Generally, the legislature has the power to enact substantive law, while the Supreme Court has the
power to enact procedural law.
41
Substantive law is that which defines, creates, or regulates rights.
42
In contrast, procedural law is the form, manner, or means by which substantive law is implemented,
including all rules governing the parties, their counsel and the court throughout the progress of the
case from the time of its initiation until final judgment and its execution; it may be described as the
“machinery of the judicial process as opposed to the product thereof.”
43
The legislature can repeal
practice and procedural rules by general law enacted by a two-thirds vote of the members of each
house, but the legislature may not amend or supersede such rules.
44
HB 403 requires a court with a pending action in which an ordinance’s enforcement is suspended to
give such action priority over other pending cases and to render a preliminary or final decision as
expeditiously as possible. Whether this requirement is a substantive or procedural law may ultimately
be resolved by the courts.
B. RULE-MAKING AUTHORITY:
The bill does not provide rulemaking authority or require executive branch rulemaking.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.
40
Art. III, IV, and V, Fla. Const.
41
Art. III and V, Fla. Const.; DeLisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018).
42
DeLisle, 259 So. 3d at 1224.
43
Id. at 1224; In re Florida Rules of Criminal Procedure, 272 So. 2d 65 (Fla. 1972).
44
In re Clarification of Fla. Rules of Practice and Procedure, 281 So. 2d 204 (Fla. 1973). STORAGE NAME: h0403b.CIV PAGE: 9
DATE: 2/14/2022