The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 280
INTRODUCER: Rules Committee; Community Affairs Committee; and Senator Hutson
SUBJECT: Local Ordinances
DATE: January 20, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hackett Ryon CA Fav/CS
2. Hackett Phelps RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/SB 280 pertains to the passage and challenging of local ordinances. It adds to the process
for local governments passing ordinances and gives certain additional rights to those challenging
local ordinances.
The bill requires counties and cities to produce a “business impact estimate” prior to passing an
ordinance, with exceptions. The estimate must be published on the local government’s website
and include certain information, such as the proposed ordinance’s purpose, estimated economic
impact on businesses, and compliance costs.
Additionally, the bill imposes certain conditions on lawsuits brought by any party to challenge
the legal validity of local ordinances as preempted by state law, arbitrary, or unreasonable. In
these cases, the bill:
Requires the local government to suspend enforcement of an ordinance of such legal
challenge, including appeals, under certain circumstances.
Requires the court to give those cases in which enforcement of the ordinance is suspended
priority over other pending cases and render a preliminary or final decision as expeditiously
as possible.
Provides that a court may award up to $50,000 in attorney fees to a prevailing plaintiff who
successfully challenges an ordinance as arbitrary or unreasonable.
The bill contains a finding of important state interest.
REVISED: BILL: CS/CS/SB 280 Page 2
The bill takes effect October 1, 2022.
II. Present Situation:
Local Ordinances
The governing body of a county or municipality has broad legislative powers to enact
ordinances, local laws, to perform governmental functions and exercise power to promote the
health, welfare, safety, and quality of life of a local government’s residents. Ordinances address a
wide variety of local issues, from government structure and zoning laws to speed limits and noise
ordinances. Procedures for passing local ordinances are prescribed by the Legislature and differ
only slightly between counties and municipalities.
Procedures for Enacting Ordinances
A board of county commissioners must notice its intent to consider an ordinance or amendment
to an ordinance 10 days before the meeting at which the ordinance will be considered. The
notice, placed in a newspaper of general circulation, should include the date, time, and place of
the meeting, the proposed ordinance title, and instructions for how to view the language. The
board may then vote to pass the ordinance at the meeting, and upon passage, must send a
certified copy of the ordinance to the Florida Department of State (DOS).
1
County ordinances
take effect upon filing with the DOS, unless otherwise prescribed in the ordinance.
2
Similarly, municipalities must notice intent to consider an ordinance 10 days before adoption.
However, municipalities must also read the ordinance by title or in full on at least 2 separate days
before adoption by vote.
3
An ordinance passed by a municipality becomes effective 10 days after
passage, unless otherwise prescribed in the ordinance.
4
Emergency Ordinances
A board of county commissioners may adopt an emergency ordinance that bypasses the notice
requirements 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 of the
membership.
5
A municipality may bypass reading and notice requirements to pass an emergency
ordinance by a two-thirds vote of the governing body.
6
An emergency ordinance may not be used
to adopt zoning and land use changes.
7
Local Government Authority
The Florida Constitution grants local governments broad authority to take actions furthering
citizens’ health, welfare, safety, and quality of life. This “home rule” authority includes
legislative powers to enact local laws. Specifically, non-charter county governments may
1
Section 125.66(2), F.S.
2
Id.
3
Section 166.041(3)(a), F.S.
4
Section 166.041(4), F.S.
5
Section 125.66(3), F.S.
6
Section 166.041(3)(b), F.S.
7
Supra notes 5 and 6. BILL: CS/CS/SB 280 Page 3
exercise those powers of self-government that are provided by general or special law.
8
Those
counties operating under a county charter have all powers of local self-government not
inconsistent with general law or special law approved by the vote of the electors.
9
Likewise,
municipalities have those governmental, corporate, and proprietary powers that enable them to
conduct municipal government, perform their functions and provide municipal services, and
exercise any power for municipal purposes, except as otherwise provided by law.
10
This authority, under the umbrella of governmental or municipal purpose, extends broadly to any
ordinance necessary to promote the health, welfare, safety, and quality of life of a local
government’s residents.
11
Local governments’ authority has been liberally construed when
reviewed by courts. For example, courts have found the following to meet the standards for what
constitutes a “municipal purpose,” and therefore were valid local government actions:
Acquisition and maintenance of a golf course;
12
Sale of souvenir photographs;
13
and
Prohibiting the rental of motorized scooters.
14
In general, this broad home rule authority is limited by two guideposts: preemption, where a
higher level of government such as the State has already legislated on a topic, and standards of
reasonableness. Local governments may not pass ordinances which are apparently arbitrary or
unreasonable, despite their wide-ranging powers.
15
Anyone affected by an ordinance may
challenge its validity in court by filing a civil action against the local government.
16
Preemption
An ordinance can be declared invalid on the grounds that it is inconsistent with the State
Constitution or Florida Statutes. Inconsistency may be found where a local ordinance is either
preempted by or in conflict with the State Constitution or Florida Statutes.
17
Preemption means
that a local government is precluded from exercising authority in a particular area, while conflict
exists where a municipality has the right to act but such action frustrates the purpose of the state
regulation.
18
Express preemption refers to instances where the Legislature has directly written
into law that the State intends to occupy a field of law, prohibiting local governments from
taking action in that field.
19
8
FLA. CONST. art. VIII, s. 1(f).
9
FLA. CONST. art. VIII, s. 1(g).
10
FLA. CONST. art. VIII, s. 2(b). See also s. 166.021(1), F.S.
11
Art. VIII, § 2(b), Fla. Const.; Section 125.86, F.S.; for municipalities see Quiles v. City of Boynton Beach, 802 So. 2d 397,
398 (Fla. 4th DCA 2001); § 166.021, Fla. Stat.
12
West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361 (1929).
13
City of Winter Park v. Montesi, 448 So. 2d 1242 (Fla. 5th DCA 1984).
14
Classy Cycles, Inc. v. Panama City Beach, 301 So. 3d 1046 (Fla. 1
st
DCA 2019).
15
Dennis v. City of Key West, 381 So. 2d 312 (Fla. 3d DCA 1980).
16
Hardage v. City of Jacksonville Beach, 399 So. 2d 1077 (Fla. 1 DCA 1981). There are statutory requirements for being
allowed to bring suit in certain cases, such as those based on a technical deficiency in the ordinance, but the cases at issue in
this analysis merely require being affected.
17
City of Jacksonville v. American Environmental Services Inc., 699 So. 2d 255 (Fla. 1st DCA 1997)
18
Id.
19
See, e.g., s. 790.33, F.S. “… the Legislature hereby declares that it is occupying the whole field of regulation of firearms
and ammunition…” BILL: CS/CS/SB 280 Page 4
Implied preemption, however, refers to situations where no express preemption is written into
statute, but the Legislature has regulated a field such that local legislation would present the
danger of conflict with that regulatory scheme.
20
In this context, conflict occurs any time a
citizen would necessarily violate one provision in order to comply with the other. Implied
preemption and conflict are necessarily more nuanced and less foreseeable than express
preemption.
Arbitrary and Unreasonable Ordinances: Presumption of Validity
An ordinance can also be declared invalid on the grounds that it is arbitrary or unreasonable,
meaning that it has no legitimate governmental interest. In legal challenges to local ordinances
based on being arbitrary or unreasonable, the local ordinances are presumed valid by courts
reviewing them, and the burden falls on the challenger to establish the ordinance’s arbitrary or
unreasonable nature.
21
Courts apply “rational basis review” to ordinances, simply determining
whether an ordinance is rationally related to a legitimate government interest- if it fails to meet
this test, an ordinance is declared invalid.
22
In these instances, courts have stated that there is no
governmental purpose where there is no apparent benefit, such as protecting the health, welfare,
safety, and quality of life, to the citizens, the benefit appears to apply to non-residents, or the
government has attempted to frustrate the purpose of another governmental entity.
23
Given this deference, courts have rarely found that an ordinance entirely lacks governmental, or
municipal purpose. However, in one case, the Florida Supreme Court ruled that a local ordinance
prohibiting the operation of surfboards and skimmers on beaches was unlawfully arbitrary and
unreasonable. In its ruling, the court stated, “[t]he Town of Palm Beach may regulate and control
surfing and skimming in areas subject to its jurisdiction and may prohibit these activities at
certain places along the beach. However, the complete prohibition of this sport from all the
beach area is arbitrary and unreasonable.”
24
Attorney Fees For Challenges Based on Express Preemption
Current law provides that in a civil action to challenge the validity of a local ordinance on the
grounds that it is expressly preempted by the State Constitution or by state law, the court must
assess and award reasonable attorney fees, costs, and damages to the prevailing party, either the
challenger or local government.
25
The local government can avoid paying attorney fees, costs,
and damages if after receiving notices that an ordinance is expressly preempted, the governing
body withdraws the proposed ordinance within 30 days.
26
20
See, e.g., Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010).
21
See Panama City Beach Community Redevelopment Agency v. State, 831 So. 2d 662 (Fla. 2002), Orange County v.
Costco Wholesale Corp., 823 So.2d 732 (Fla. 2002)..
22
Supra note 12 at page 133, 134 “In testing the validity of a statute with reference to the facts and circumstances upon
which it is to operate, the validity of the statute does not depend upon the preponderance of evidentiary considerations; but
the statute stands unless it conclusively appears that there are or can be no conceivable circumstances upon which it can
validly operate or that under no circumstances can it operate or be effective to accomplish the intended purpose, without
violating organic rights.”
23
See generally supra, notes 13, 14, 15.
24
Carter v. Town of Palm Beach, 237 So.2d 130 (Fla. 1970).
25
Section 57.112, F.S.
26
Or notices the intent to repeal the ordinance within 30 days and repeals the notice within 30 days thereafter. S. 57.112(3),
F.S. BILL: CS/CS/SB 280 Page 5
Priority Docketing
The Florida Rules of Judicial Administration govern the ways a judge controls a case in terms of
timing and docketing. Some cases that come before a court are deemed priority cases, either
directly in statute, in rule of procedure, or case law. Every judge has a duty to expedite priority
cases to the extent reasonably possible.
27
For these cases judges are tasked with implementing
docket control policies necessary to advance the case and ensure prompt resolution.
28
Docket
control policies include setting deadlines for phases of the case, giving priority to hearings
required to advance the case, and advancing the trial setting. A party in a priority status case may
file a notice of priority status, and has recourse if they believe the case has not been appropriately
advanced on the docket or received priority in scheduling.
29
III. Effect of Proposed Changes:
Attorney Fees
Section 1 amends s. 57.112, F.S., to provide that when an ordinance is successfully challenged in
court as arbitrary or unreasonable, the court may, but is not required to, award up to $50,000 in
attorney fees and costs to the prevailing plaintiff. These fees are not applicable where the
plaintiff prevails on a separate claim regarding the same ordinance, or for fees and costs
associated with litigating over attorney fees. This section applies prospectively to ordinances
adopted on or after October 1, 2022.
Business Impact Estimate
Sections 2 and 4 amend ss. 125.66 and 166.041, F.S., to require counties and cities, respectively,
to produce or have produced a “business impact estimate” prior to passing an ordinance. The
business impact estimate must include the following:
A summary of the proposed ordinance, including a statement of the public purpose to be
served by the proposed ordinance;
An estimate of the direct economic impact of the proposed ordinance on private for-profit
businesses in the county or city, including:
o An estimate of direct compliance costs for businesses;
o Identification of new charges and fees; and
o An estimate of the county’s or city’s regulatory costs.
A good faith estimate of the number of businesses likely impacted; and
Any additional information deemed useful.
The bill specifies that this requirement is not to be construed to require a county or city to
procure an accountant or other financial consultant in preparing the estimate.
A business impact estimate is not required for the following types of ordinances:
Emergency ordinances;
27
Fla. R. Jud. Admin. 2.215(g).
28
Fla. R. Jud. Admin. 2.545(b).
29
Fla. R. Jud. Admin. 2.545(c). BILL: CS/CS/SB 280 Page 6
Growth policy, county and municipal planning, and land development regulations under part
II of ch. 163, F.S.;
Building code ordinances under s. 553.73, F.S.;
Fire prevention code ordinances under s. 633.202, F.S;
Ordinances establishing or terminating Community Development Districts under ss. 190.005
and 190.046, F.S.;
Ordinances required to comply with federal or state law or regulation;
Ordinances relating to financial obligations or issuance and refinancing of debt;
Ordinances related to the adoption of county or municipal budgets or budget amendments; or
Ordinances required to implement a contract or agreement, to include federal, state, local, or
private grants and other financial assistance.
Challenging Ordinances
Sections 3 and 5 create ss. 125.675 and 166.0411, F.S., to set conditions on lawsuits brought by
any party to challenge local ordinances as preempted by the State Constitution or by state law,
arbitrary, or unreasonable. The bill requires the local government to suspend enforcement of an
ordinance subject to such an action, including appeals, if:
The action was filed with the court no later than 90 days after the adoption date of the
ordinance;
The plaintiff or petitioner requests suspension in the initial complaint or petition; and
The county or city has been served with a copy of the complaint or petition.
An appellate court may lift such stay if the local government prevails in a lower court. In filing
such an action, a party certifies that they do not file such a suit for frivolous or improper
purposes, and may be subject to sanctions and fees if they do so.
Additionally, the court must give those cases in which enforcement of the ordinance is
suspended priority over other pending cases and render a preliminary or final decision as
expeditiously as possible.
Provisions regarding an ordinance’s stay and priority docketing for challenges do not apply to:
Emergency ordinances;
Growth policy, county and municipal planning, and land development regulations under part
II of ch. 163, F.S.;
Building code ordinances under s. 553.73, F.S.;
Fire prevention code ordinances under s. 633.202, F.S;
Ordinances establishing or terminating Community Development Districts under ss. 190.005
and 190.046, F.S.
Ordinances required to comply with federal or state law or regulation;
Ordinances relating to financial obligations or issuance and refinancing of debt;
Ordinances related to the adoption of county or municipal budgets or budget amendments; or
Ordinances required to implement a contract or agreement, to include federal, state, local, or
private grants and other financial assistance.
BILL: CS/CS/SB 280 Page 7
Finally, the bill provides a cross reference to the new attorney fee provisions in section 1 of the
bill.
Sections 6 through 12 correct statutory references to conform to changes made by the bill.
Section 13 contains a finding of important state interest.
Section 14 provides the bill takes effect October 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The county and municipality mandate provisions of Article VII, section 18 of the Florida
Constitution may apply because the bill requires local governments to expend funds to
produce a business impact statement for each ordinance prior to consideration for
adoption. Article VII, section 18 (a) of the Florida Constitution provides in part that a
county or municipality may not be bound by a general law requiring a county or
municipality to spend funds or take an action that requires the expenditure of funds unless
certain specified exemptions or exceptions are met.
None of the constitutional exceptions appear to apply.
Article VII, section 18 (d) provides eight exemptions, which, if any single one is met,
exempts the law from the limitations on mandates. Laws having an “insignificant fiscal
impact” are exempt from the mandate requirements, which for Fiscal Year 2021-2022 is
forecast at approximately $2.3 million.
30,31,32
However, any local government costs
associated with the bill are speculative and not readily estimable for purposes of
determining whether the exemption for bills having an insignificant fiscal impact applies.
If the bill does qualify as a mandate, in order to be binding upon cities and counties, the
bill must contain a finding of important state interest and be approved by a two-thirds
vote of the membership of each house. The bill contains a legislative finding that its
provisions fulfill an important state interest.
B. Public Records/Open Meetings Issues:
None.
30
FLA. CONST. art. VII, s. 18(d).
31
An insignificant fiscal impact is the amount not greater than the average statewide population for the applicable fiscal year
times $0.10. See Florida Senate Committee on Community Affairs, Interim Report 2012-115: Insignificant Impact, (Sept.
2011), available at http://www.flsenate.gov/PublishedContent/Session/2012/InterimReports/2012-115ca.pdf (last visited Jan.
7, 2022).
32
Based on the Florida Demographic Estimating Conference’s March 3, 2021 population forecast for 2022 of 22,245,429.
The conference packet is available at: http://edr.state.fl.us/Content/conferences/population/ConferenceResults.pdf (last
visited Jan. 7, 2022). BILL: CS/CS/SB 280 Page 8
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
This bill does not create or raise state taxes or fees. Therefore, the requirements of Article
VII, s. 19 of the Florida Constitution do not apply.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
This bill does not affect state or local revenue.
B. Private Sector Impact:
The bill may have an indeterminate positive impact on private parties who bring actions
challenging the enactment or enforcement of an ordinance by a local government. Private
parties may benefit from the automatic stay and priority docketing, which may reduce
costs for legal action, and will benefit from recovering attorney fees for successful
actions, if awarded.
C. Government Sector Impact:
Business impact estimates will require staffing time and resources for each ordinance
passed by a local government. The negative economic impact is indeterminate at this
time.
Courts may see indeterminate economic impact as suspensions may reduce hearings
sought for temporary injunctive relief, while priority docketing may increase workload
for clerks of court.
33
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
33
2022 Judicial Impact Statement, Office of the State Courts Administrator, Nov. 9, 2021 (on file with Senate Committee on
Community Affairs). BILL: CS/CS/SB 280 Page 9
VIII. Statutes Affected:
This bill substantially amends sections 57.112, 125.66, 166.041, 163.2517, 163.3181, 163.3215,
376.80, 497.270, 562.45, and 847.0134 Florida Statutes.
This bill creates sections 125.675 and 166.0411, Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS/CS by Rules on January 20, 2022:
The CS:
Clarifies that local governments may have the business impact estimate prepared on
their behalf and exempts certain ordinances from the requirement.
Provides that an appellate court may lift the stay if the local government won in a
lower court, and requires a party to certify that they do not file such a suit for
frivolous or improper purposes.
Removes the provision regarding factors to be considered by a court in determining
the arbitrary or unreasonable nature of an ordinance, and exempts ordinances that
create or terminate a Community Development District from both the business impact
estimate and the legal challenges provisions in the bill.
CS by Community Affairs on January 12, 2022:
With regards to attorney fees, the CS removes a provision applying the bill to
ordinances challenged as “otherwise prohibited by law.” It also prohibits double
recovery, and imposes a $50,000 cap on attorney fees allowed. It further applies the
provision to ordinances “adopted” after Oct 1, 2022, rather than cases “commenced”
on or after Oct 1, 2022.
With regards to the business impact statement, the CS provides that a local
government is not required to hire an accountant or other consultant. The required
contents of the statement are also altered, and is renamed the “business impact
estimate.”
With regards to the stay and priority docketing, the CS removes a provision applying
the bill to ordinances challenged “as otherwise prohibited by law. The CS requires
such a suit and request to be filed within 90 days of the adoption date of the
ordinance, rather than within 20 days of the effective date. Finally, it adds several
exceptions to this provision, such as ordinances related to budgets and financial
obligations.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.