Florida Senate - 2022 SB 280 By Senator Hutson 7-00478-22 2022280__ 1 A bill to be entitled 2 An act relating to local ordinances; amending s. 3 57.112, F.S.; authorizing courts to assess and award 4 attorney fees and costs and damages in certain civil 5 actions filed against local governments; providing 6 construction; amending s. 125.66, F.S.; requiring a 7 board of county commissioners to prepare a business 8 impact statement before the adoption of a proposed 9 ordinance; specifying requirements for the posting and 10 content of the statement; providing applicability; 11 creating s. 125.675, F.S.; requiring a county to 12 suspend enforcement of an ordinance that is the 13 subject of a certain legal action if certain 14 conditions are met; requiring courts to give priority 15 to certain cases; specifying factors a court must 16 consider in determining whether an ordinance is 17 arbitrary or unreasonable; providing applicability; 18 authorizing courts to award attorney fees and costs 19 under certain circumstances; amending s. 166.041, 20 F.S.; requiring a governing body of a municipality to 21 prepare a business impact statement before the 22 adoption of a proposed ordinance; specifying 23 requirements for the posting and content of the 24 statement; providing applicability; creating s. 25 166.0411, F.S.; requiring a municipality to suspend 26 enforcement of an ordinance that is the subject of a 27 certain legal action if certain conditions are met; 28 requiring courts to give priority to certain cases; 29 specifying factors a court must consider in 30 determining whether an ordinance is arbitrary or 31 unreasonable; providing applicability; authorizing 32 courts to award attorney fees and costs under certain 33 circumstances; amending ss. 163.2517, 163.3181, 34 163.3215, 376.80, 497.270, 562.45, and 847.0134, F.S.; 35 conforming cross-references; providing a declaration 36 of important state interest; providing an effective 37 date. 38 39 Be It Enacted by the Legislature of the State of Florida: 40 41 Section 1.Section 57.112, Florida Statutes, is amended to 42 read: 43 57.112Attorney fees and costs and damages; preempted local 44 actions. 45 (1)As used in this section, the term attorney fees and 46 costs means the reasonable and necessary attorney fees and 47 costs incurred for all preparations, motions, hearings, trials, 48 and appeals in a proceeding. 49 (2)If a civil action is filed against a local government 50 to challenge the adoption or enforcement of a local ordinance on 51 the grounds that it is expressly preempted by the State 52 Constitution or by state law, the court shall assess and award 53 reasonable attorney fees and costs and damages to the prevailing 54 party. 55 (3)If a civil action is filed against a local government 56 to challenge the adoption or enforcement of a local ordinance on 57 the grounds that the ordinance is arbitrary or unreasonable, or 58 is prohibited by law other than via express preemption, the 59 court may assess and award reasonable attorney fees and costs 60 and damages to the complainant if successful. 61 (4)Attorney fees and costs may not be awarded pursuant to 62 this section if: 63 (a)The governing body of a local governmental entity 64 receives written notice that an ordinance that has been publicly 65 noticed or adopted is expressly preempted by the State 66 Constitution or state law, is arbitrary or unreasonable, or is 67 otherwise prohibited by law; and 68 (b)The governing body of the local governmental entity 69 withdraws the proposed ordinance within 30 days; or, in the case 70 of an adopted ordinance, the governing body of a local 71 government notices an intent to repeal the ordinance within 30 72 days of receipt of the notice and repeals the ordinance within 73 30 days thereafter. 74 (5)(4)The provisions in this section are supplemental to 75 all other sanctions or remedies available under law or court 76 rule. 77 (6)(5)This section does not apply to local ordinances 78 adopted pursuant to part II of chapter 163, s. 553.73, or s. 79 633.202. 80 (7)(6)Subsections (1), (2), (4), (5), and (6) are This 81 section is intended to be prospective in nature and shall apply 82 only to cases commenced on or after July 1, 2019. Subsection (3) 83 is intended to be prospective in nature and applies only to 84 cases commenced on or after October 1, 2022. 85 Section 2.Present subsections (3) through (6) of section 86 125.66, Florida Statutes, are redesignated as subsections (4) 87 through (7), respectively, a new subsection (3) is added to that 88 section, and paragraph (a) of subsection (2) of that section is 89 amended, to read: 90 125.66Ordinances; enactment procedure; emergency 91 ordinances; rezoning or change of land use ordinances or 92 resolutions. 93 (2)(a)The regular enactment procedure shall be as follows: 94 The board of county commissioners at any regular or special 95 meeting may enact or amend any ordinance, except as provided in 96 subsection (5) (4), if notice of intent to consider such 97 ordinance is given at least 10 days before such meeting by 98 publication as provided in chapter 50. A copy of such notice 99 shall be kept available for public inspection during the regular 100 business hours of the office of the clerk of the board of county 101 commissioners. The notice of proposed enactment shall state the 102 date, time, and place of the meeting; the title or titles of 103 proposed ordinances; and the place or places within the county 104 where such proposed ordinances may be inspected by the public. 105 The notice shall also advise that interested parties may appear 106 at the meeting and be heard with respect to the proposed 107 ordinance. 108 (3)(a)Before the adoption of each proposed ordinance, the 109 board of county commissioners shall prepare a business impact 110 statement in accordance with this subsection. The business 111 impact statement must be posted on the countys website on the 112 same day the notice of proposed enactment is published pursuant 113 to paragraph (2)(a) and must include: 114 1.A statement of the public purpose to be served by the 115 proposed ordinance, such as serving the public health, safety, 116 or welfare of the county; 117 2.A statement of the reasonable connection between the 118 public purpose and the expected effects of the ordinance; 119 3.The estimated economic effect of the proposed ordinance 120 on businesses both within and outside the county, including both 121 adverse and beneficial effects and both direct and indirect 122 effects; 123 4.A good faith estimate of the number of businesses likely 124 to be affected by the ordinance; 125 5.An analysis of the extent to which the proposed 126 ordinance is likely to deter or encourage the formation of new 127 businesses within the countys jurisdiction; 128 6.An analysis of the extent to which the proposed 129 ordinance will impede the ability of businesses within the 130 county to compete with other businesses in other areas of this 131 state or other domestic markets; 132 7.If applicable, the scientific basis for the proposed 133 ordinance; 134 8.Alternatives considered by the county which would reduce 135 the impact of the proposed ordinance on businesses; and 136 9.Any additional information the board determines may be 137 useful. 138 (b)This subsection does not apply to an emergency 139 ordinance enacted pursuant to this section. 140 Section 3.Section 125.675, Florida Statutes, is created to 141 read: 142 125.675Legal challenges to certain recently enacted 143 ordinances. 144 (1)A county must suspend enforcement of an ordinance that 145 is the subject of an action, including appeals, challenging the 146 ordinances validity on the grounds that it is preempted by the 147 State Constitution or by state law, is arbitrary or 148 unreasonable, or is otherwise prohibited by law, if: 149 (a)The action was filed with the court no later than 20 150 days after the effective date of the ordinance; 151 (b)The plaintiff or petitioner requests suspension in the 152 initial complaint or petition, citing this section; and 153 (c)The county has been served with a copy of the complaint 154 or petition. 155 (2)The court shall give cases in which the enforcement of 156 an ordinance is suspended under this section priority over other 157 pending cases and shall render a preliminary or final decision 158 on the validity of the ordinance as expeditiously as possible. 159 (3)In determining whether an ordinance is arbitrary or 160 unreasonable, the court shall consider, but is not limited to, 161 the following factors: 162 (a)The extent to which the ordinance protects the health, 163 welfare, safety, and quality of life of the residents of the 164 county; 165 (b)The impact of the ordinance on the personal rights and 166 privileges of the residents of the county; 167 (c)The total economic impact of the ordinance; and 168 (d)The business impact statement prepared by the county as 169 required by s. 125.66(3). 170 (4)This section does not apply to an emergency ordinance 171 or an ordinance governed by part II of chapter 163, s. 553.73, 172 or s. 633.202. 173 (5)The court may award attorney fees and costs as provided 174 in s. 57.112. 175 Section 4.Present subsections (4) through (8) of section 176 166.041, Florida Statutes, are redesignated as subsections (5) 177 through (9), respectively, and a new subsection (4) is added to 178 that section, to read: 179 166.041Procedures for adoption of ordinances and 180 resolutions. 181 (4)(a)Before the adoption of each proposed ordinance, the 182 governing body of a municipality shall prepare a business impact 183 statement in accordance with this subsection. The business 184 impact statement must be posted on the municipalitys website on 185 the same day the notice of proposed enactment is published 186 pursuant to paragraph (3)(a) and must include: 187 1.A statement of the public purpose to be served by the 188 proposed ordinance, such as serving the public health, safety, 189 or welfare of the municipality; 190 2.A statement of the reasonable connection between the 191 public purpose and the expected effects of the ordinance; 192 3.The estimated economic effect of the proposed ordinance 193 on businesses both within and outside the municipality, 194 including both adverse and beneficial effects and both direct 195 and indirect effects; 196 4.A good faith estimate of the number of businesses likely 197 to be affected by the ordinance; 198 5.An analysis of the extent to which the proposed 199 ordinance is likely to deter or encourage the formation of new 200 businesses within the municipalitys jurisdiction; 201 6.An analysis of the extent to which the proposed 202 ordinance will impede the ability of businesses within the 203 municipality to compete with other businesses in other areas of 204 this state or other domestic markets; 205 7.If applicable, the scientific basis for the proposed 206 ordinance; 207 8.Alternatives considered by the municipality which would 208 reduce the impact of the proposed ordinance on businesses; and 209 9.Any additional information the governing body determines 210 may be useful. 211 (b)This subsection does not apply to an emergency 212 ordinance enacted pursuant to this section. 213 Section 5.Section 166.0411, Florida Statutes, is created 214 to read: 215 166.0411Legal challenges to certain recently enacted 216 ordinances. 217 (1)A municipality must suspend enforcement of an ordinance 218 that is the subject of an action, including appeals, challenging 219 the ordinances validity on the grounds that it is preempted by 220 the State Constitution or by state law, is arbitrary or 221 unreasonable, or is otherwise prohibited by law, if: 222 (a)The action was filed with the court no later than 20 223 days after the effective date of the ordinance; 224 (b)The plaintiff or petitioner requests suspension in the 225 initial complaint or petition, citing this section; and 226 (c)The municipality has been served with a copy of the 227 complaint or petition. 228 (2)The court shall give cases in which the enforcement of 229 an ordinance is suspended under this section priority over other 230 pending cases and shall render a preliminary or final decision 231 on the validity of the ordinance as expeditiously as possible. 232 (3)In determining whether an ordinance is arbitrary or 233 unreasonable, the court shall consider, but is not limited to, 234 the following factors: 235 (a)The extent to which the ordinance protects the health, 236 welfare, safety, and quality of life of the residents of the 237 municipality; 238 (b)The impact of the ordinance on the personal rights and 239 privileges of the residents of the municipality; 240 (c)The total economic impact of the ordinance; and 241 (d)The business impact statement prepared by the 242 municipality as required by s. 166.041(4). 243 (4)This section does not apply to an emergency ordinance 244 or an ordinance governed by part II of chapter 163, s. 553.73, 245 or s. 633.202. 246 (5)The court may award attorney fees and costs as provided 247 in s. 57.112. 248 Section 6.Subsection (5) of section 163.2517, Florida 249 Statutes, is amended to read: 250 163.2517Designation of urban infill and redevelopment 251 area. 252 (5)After the preparation of an urban infill and 253 redevelopment plan or designation of an existing plan, the local 254 government shall adopt the plan by ordinance. Notice for the 255 public hearing on the ordinance must be in the form established 256 in s. 166.041(3)(c)2. for municipalities, and s. 125.66(5)(b)2. 257 s. 125.66(4)(b)2. for counties. 258 Section 7.Paragraph (a) of subsection (3) of section 259 163.3181, Florida Statutes, is amended to read: 260 163.3181Public participation in the comprehensive planning 261 process; intent; alternative dispute resolution. 262 (3)A local government considering undertaking a publicly 263 financed capital improvement project may elect to use the 264 procedures set forth in this subsection for the purpose of 265 allowing public participation in the decision and resolution of 266 disputes. For purposes of this subsection, a publicly financed 267 capital improvement project is a physical structure or 268 structures, the funding for construction, operation, and 269 maintenance of which is financed entirely from public funds. 270 (a)Prior to the date of a public hearing on the decision 271 on whether to proceed with the proposed project, the local 272 government shall publish public notice of its intent to decide 273 the issue according to the notice procedures described by s. 274 125.66(5)(b)2. s. 125.66(4)(b)2. for a county or s. 275 166.041(3)(c)2.b. for a municipality. 276 Section 8.Paragraph (a) of subsection (4) of section 277 163.3215, Florida Statutes, is amended to read: 278 163.3215Standing to enforce local comprehensive plans 279 through development orders. 280 (4)If a local government elects to adopt or has adopted an 281 ordinance establishing, at a minimum, the requirements listed in 282 this subsection, the sole method by which an aggrieved and 283 adversely affected party may challenge any decision of local 284 government granting or denying an application for a development 285 order, as defined in s. 163.3164, which materially alters the 286 use or density or intensity of use on a particular piece of 287 property, on the basis that it is not consistent with the 288 comprehensive plan adopted under this part, is by an appeal 289 filed by a petition for writ of certiorari filed in circuit 290 court no later than 30 days following rendition of a development 291 order or other written decision of the local government, or when 292 all local administrative appeals, if any, are exhausted, 293 whichever occurs later. An action for injunctive or other relief 294 may be joined with the petition for certiorari. Principles of 295 judicial or administrative res judicata and collateral estoppel 296 apply to these proceedings. Minimum components of the local 297 process are as follows: 298 (a)The local process must make provision for notice of an 299 application for a development order that materially alters the 300 use or density or intensity of use on a particular piece of 301 property, including notice by publication or mailed notice 302 consistent with the provisions of ss. 125.66(5)(b)2. and 3. and 303 166.041(3)(c)2.b. and c. ss. 125.66(4)(b)2. and 3. and 304 166.041(3)(c)2.b. and c., and must require prominent posting at 305 the job site. The notice must be given within 10 days after the 306 filing of an application for a development order; however, 307 notice under this subsection is not required for an application 308 for a building permit or any other official action of local 309 government which does not materially alter the use or density or 310 intensity of use on a particular piece of property. The notice 311 must clearly delineate that an aggrieved or adversely affected 312 person has the right to request a quasi-judicial hearing before 313 the local government for which the application is made, must 314 explain the conditions precedent to the appeal of any 315 development order ultimately rendered upon the application, and 316 must specify the location where written procedures can be 317 obtained that describe the process, including how to initiate 318 the quasi-judicial process, the timeframes for initiating the 319 process, and the location of the hearing. The process may 320 include an opportunity for an alternative dispute resolution. 321 Section 9.Paragraph (c) of subsection (1) of section 322 376.80, Florida Statutes, is amended to read: 323 376.80Brownfield program administration process. 324 (1)The following general procedures apply to brownfield 325 designations: 326 (c)Except as otherwise provided, the following provisions 327 apply to all proposed brownfield area designations: 328 1.Notification to department following adoption.A local 329 government with jurisdiction over the brownfield area must 330 notify the department, and, if applicable, the local pollution 331 control program under s. 403.182, of its decision to designate a 332 brownfield area for rehabilitation for the purposes of ss. 333 376.77-376.86. The notification must include a resolution 334 adopted by the local government body. The local government shall 335 notify the department, and, if applicable, the local pollution 336 control program under s. 403.182, of the designation within 30 337 days after adoption of the resolution. 338 2.Resolution adoption.The brownfield area designation 339 must be carried out by a resolution adopted by the 340 jurisdictional local government, which includes a map adequate 341 to clearly delineate exactly which parcels are to be included in 342 the brownfield area or alternatively a less-detailed map 343 accompanied by a detailed legal description of the brownfield 344 area. For municipalities, the governing body shall adopt the 345 resolution in accordance with the procedures outlined in s. 346 166.041, except that the procedures for the public hearings on 347 the proposed resolution must be in the form established in s. 348 166.041(3)(c)2. For counties, the governing body shall adopt the 349 resolution in accordance with the procedures outlined in s. 350 125.66, except that the procedures for the public hearings on 351 the proposed resolution shall be in the form established in s. 352 125.66(5)(b) s. 125.66(4)(b). 353 3.Right to be removed from proposed brownfield area.If a 354 property owner within the area proposed for designation by the 355 local government requests in writing to have his or her property 356 removed from the proposed designation, the local government 357 shall grant the request. 358 4.Notice and public hearing requirements for designation 359 of a proposed brownfield area outside a redevelopment area or by 360 a nongovernmental entity. Compliance with the following 361 provisions is required before designation of a proposed 362 brownfield area under paragraph (2)(a) or paragraph (2)(c): 363 a.At least one of the required public hearings shall be 364 conducted as closely as is reasonably practicable to the area to 365 be designated to provide an opportunity for public input on the 366 size of the area, the objectives for rehabilitation, job 367 opportunities and economic developments anticipated, 368 neighborhood residents considerations, and other relevant local 369 concerns. 370 b.Notice of a public hearing must be made in a newspaper 371 of general circulation in the area, must be made in ethnic 372 newspapers or local community bulletins, must be posted in the 373 affected area, and must be announced at a scheduled meeting of 374 the local governing body before the actual public hearing. 375 Section 10.Paragraph (a) of subsection (3) of section 376 497.270, Florida Statutes, is amended to read: 377 497.270Minimum acreage; sale or disposition of cemetery 378 lands. 379 (3)(a)If the property to be sold, conveyed, or disposed of 380 under subsection (2) has been or is being used for the permanent 381 interment of human remains, the applicant for approval of such 382 sale, conveyance, or disposition shall cause to be published, at 383 least once a week for 4 consecutive weeks, a notice meeting the 384 standards of publication set forth in s. 125.66(5)(b)2. s. 385 125.66(4)(b)2. The notice shall describe the property in 386 question and the proposed noncemetery use and shall advise 387 substantially affected persons that they may file a written 388 request for a hearing pursuant to chapter 120, within 14 days 389 after the date of last publication of the notice, with the 390 department if they object to granting the applicants request to 391 sell, convey, or dispose of the subject property for noncemetery 392 uses. 393 Section 11.Paragraph (a) of subsection (2) of section 394 562.45, Florida Statutes, is amended to read: 395 562.45Penalties for violating Beverage Law; local 396 ordinances; prohibiting regulation of certain activities or 397 business transactions; requiring nondiscriminatory treatment; 398 providing exceptions. 399 (2)(a)Nothing contained in the Beverage Law shall be 400 construed to affect or impair the power or right of any county 401 or incorporated municipality of the state to enact ordinances 402 regulating the hours of business and location of place of 403 business, and prescribing sanitary regulations therefor, of any 404 licensee under the Beverage Law within the county or corporate 405 limits of such municipality. However, except for premises 406 licensed on or before July 1, 1999, and except for locations 407 that are licensed as restaurants, which derive at least 51 408 percent of their gross revenues from the sale of food and 409 nonalcoholic beverages, pursuant to chapter 509, a location for 410 on-premises consumption of alcoholic beverages may not be 411 located within 500 feet of the real property that comprises a 412 public or private elementary school, middle school, or secondary 413 school unless the county or municipality approves the location 414 as promoting the public health, safety, and general welfare of 415 the community under proceedings as provided in s. 125.66(5) s. 416 125.66(4), for counties, and s. 166.041(3)(c), for 417 municipalities. This restriction shall not, however, be 418 construed to prohibit the issuance of temporary permits to 419 certain nonprofit organizations as provided for in s. 561.422. 420 The division may not issue a change in the series of a license 421 or approve a change of a licensees location unless the licensee 422 provides documentation of proper zoning from the appropriate 423 county or municipal zoning authorities. 424 Section 12.Subsection (1) of section 847.0134, Florida 425 Statutes, is amended to read: 426 847.0134Prohibition of adult entertainment establishment 427 that displays, sells, or distributes materials harmful to minors 428 within 2,500 feet of a school. 429 (1)Except for those establishments that are legally 430 operating or have been granted a permit from a local government 431 to operate as adult entertainment establishments on or before 432 July 1, 2001, an adult entertainment establishment that sells, 433 rents, loans, distributes, transmits, shows, or exhibits any 434 obscene material, as described in s. 847.0133, or presents live 435 entertainment or a motion picture, slide, or other exhibit that, 436 in whole or in part, depicts nudity, sexual conduct, sexual 437 excitement, sexual battery, sexual bestiality, or 438 sadomasochistic abuse and that is harmful to minors, as 439 described in s. 847.001, may not be located within 2,500 feet of 440 the real property that comprises a public or private elementary 441 school, middle school, or secondary school unless the county or 442 municipality approves the location under proceedings as provided 443 in s. 125.66(5) s. 125.66(4) for counties or s. 166.041(3)(c) 444 for municipalities. 445 Section 13.The Legislature finds and declares that this 446 act fulfills an important state interest. 447 Section 14.This act shall take effect October 1, 2022.