Mary Ellen Klas
The Miami Herald
TALLAHASSEE — If Tallahassee gets its way, there would be no need for any candidate for local office to campaign to influence the following: police budgets, public health crises, vacation rentals, design and construction of new buildings, regulating home-based businesses, restricting crowds of cruise-ship tourists, and local consumption of fossil fuels.
All those decisions would be made by the GOP-led Florida Legislature if a growing list of bills aimed at preempting local control is passed this session.
They are all part of an increasing trend by the Republican leaders of the 160-member Legislature to shift control of controversial issues to them from more than 400 cities and 67 counties. Florida law allows unrestricted amounts of campaign cash to be directed to political committees, and it is often easier for industries with the greatest stake in influencing the local decisions to spend money in Tallahassee to stop a local regulation than it is to hire lobbyists to influence dozens of counties and hundreds of cities.
The result is a classic conflict over home rule, and whether little-known legislators should have veto power over mayors and commissioners.
“It’s been very frustrating and trying to do my job, and pass the things that residents elected me on,” said Sabrina Javellana, city commissioner in Hallandale Beach. “This session we’ve seen an avalanche of proposals designed to undercut local democracy and erase home rule, and they’re really aggressively pushed by the biggest corporate interests in our state.”
Joshua Simmons, a Coral Springs commissioner, calls cities “laboratories of democracy” and warns that when the Legislature interferes in traditional city functions, it restricts the ability of local officials to respond to local needs.
“Don’t these lawmakers live in a city?” he asked at a news conference with reporters this week. “Don’t they want someone there that’s going to make sure that they can enjoy and love to live in the city they’re in? Don’t they want someone there that’s going to make sure you’re protected?”
Because of COVID-19 restrictions that have kept the state Capitol building closed to the public, many local officials have had to express their outrage at the proposals from a distance.
“While our state legislators try to strip us of the very power our constituents elected us to employ, we must stand strong,” said Guido Maniscalco, chair of the Tampa City Council after a March 18 meeting in which he and his colleagues condemned attempts to undermine local efforts to transition to clean energy sources.
“Local governments are on the forefront of mitigating climate change’s worst impacts, and it is our responsibility to do so without wasting any more time. It’s time to transition our state to a clean energy future,” he said.
Asked about the preemption proposals before session began, Sen. Kathleen Passidomo, the Senate Rules chair, said she supports many of them, noting that cities and counties were formed after the Florida Legislature, and city hall should be overruled at the state capital.
“I think they do a great job, a lot of them,” she said. “But a lot of them want us to do the hard work. They don’t want to be unpopular, so they want us to take the responsibility, but give them latitude.”
The pandemic is one example where Florida legislators did not want to take responsibility and, as the state faced shortages of personal protective equipment, inadequate access to testing, and an unemployment system that had gone into meltdown, legislators ceded their authority over budget and policy to Gov. Ron DeSantis.
In the absence of state coordination of vaccines, for example, many local governments stepped in to coordinate the effort to respond to local needs.
‘Steep hill’
Florida’s Legislature meets for two months each year and, while it has the power to convene more often, legislators have in recent years chosen to stay home when the state faces a crisis. Instead of recognizing the local role, legislators are moving bills to ban local governments from being able to be adopt responses to the public health and climate change crises they face.
“The assault on local government continues,” said Broward County Mayor Steve Geller, who served for 20 years in the Florida Legislature. “But local government is not taking it lying down, and that includes an awful lot of Republican local government officials. A lot of these things are going to fail.”
Every year the Florida League of Cities and the Florida Association of Counties watch as hundreds of bills are filed that influence local governments. The FAC monitors those that are moving on its Preemption Tracker. Every year, many bills die. Will this year be different?
“I think that there is some issue fatigue here,” said Casey Cook, Florida League of Cities lobbyist at a briefing with reporters before the session about legislation attempting again this year to restrict local regulation of vacation rentals. “I think that many legislators either think there is peace in the valley, or they acknowledge that taking away local problem-solving ability is not a good approach.”
Because the session is only 60 days, he said that legislators “have a steep hill ahead of them to pass anything. And they’re certainly hearing from residents and city officials as to why preemption is a bad idea.”
The reasons for the legislation is in some cases pragmatic — supporters argue that a patchwork of local ordinances in things like construction codes and zoning ordinances creates confusion for the public and headaches for business. But for many of the bills, the reasons are ideological as more progressive policies, often relating to climate change or restricting an industry, are rejected in Tallahassee and adopted by local officials, often in Democrat-dominated city and county commissions.
Alissa Schafer, a commissioner for the Broward County Soil and Water Conservation District, said that when it comes to the energy sector, Florida is following a pattern happening across the nation by advancing bills pushed by the oil and gas industry that attempt to reverse clean energy initiatives at the local level and impose restrictions on any new ones.
“This legislation would effectively make any city commitment to 100% clean energy — which we’re seeing around the state — completely impossible,” said Schafer, who also works for the Energy and Policy Institute, an organization that works to counter the narrative of the fossil fuel industry.
Gail Johnson, a Gainesville city commissioner, pointed to priority legislation being pushed by DeSantis and House Speaker Chris Sprowls as part of the anti-riot legislation that would punish local cities and counties that redirect funding from law enforcement to other initiatives.
“It’s really an abuse of power, and it’s aimed at suppressing our, our First Amendment rights,” she said. “It’s dangerous. And it is highly unconstitutional.”
Francesca Menes, an organizing director with the left-leaning group Local Progress, said that for many activists “preemption is neither good nor bad. It’s about how it’s used.” For the last 15 years, it has been used to “curb the powers of local government, to take away local democracy,” she said.
Legislators are on the fourth week of a nine-week legislative session and already some bills aimed at shifting control over controversial issues have run into trouble, or have been watered down. But while bills have undergone significant changes, what remains has opponents worried. Here is an update:
Emergencies
HB 945 sponsored by Rep. Bob Rommel, R-Naples, and SB 1924 by Sen. Manny Diaz Jr., R-Hialeah, would limit the duration of emergency orders issued by local governments.
“It’s about the overreach of local government, picking winners and losers, deciding that your civil liberties, your God-given rights don’t matter. And they know best because it’s three people, five people, seven people on some committee,” Rommel told the House Pandemics & Public Emergencies Committee.
But the Florida Association of Counties warns that the measure could open local governments to lawsuits for failing to protect citizens.
“This is a fundamental shift in how we currently deal with and respond to emergencies on the local level,” said Tonnette Graham, associate director of public policy with the Florida Association of Counties. “This will ultimately lead us to not being able to protect what is paramount, that is the life and property of our citizens.”
Vacation rentals
A controversial proposal aimed at restricting local government’s authority over vacation properties advertised on platforms such as Airbnb hit a roadblock early in session.
Diaz, the sponsor of the Senate bill, SB 522, removed a provision that would have blocked local governments’ ability to license and inspect the properties. It kept a new requirement making online platforms responsible for collecting and remitting taxes to the state and ensuring rental properties are licensed.
The bill was intended as an update to a state law that prohibits local governments from passing ordinances to outlaw vacation rentals. But while they can’t ban vacation rentals, many local governments have attempted to impose regulations and steep fines in response to an outcry from residents who complain of investor-owned “party houses” in their neighborhoods. Some local officials also complain that some rental properties are failing to properly submit state and local taxes.
Energy
In many cases, the GOP-led Legislature has allowed the first draft of many preemption bills to be written by the industries that want them. According to records obtained by the Herald/Times, lawyers for the natural gas and utility industry proposed the first draft of SB 856 and HB 839 that would prevent local governments from blocking or restricting construction of “energy infrastructure” related to such things as production and distribution of electricity, natural gas and petroleum products.
But after SB 856 moved through two committees, the Senate sponsor, Sen. Travis Hutson, R-St. Augustine, watered it down significantly and now it is limited to prohibiting the replacement of gas stations with greener energy options, leading the League of Cities and Florida Association of Counties to withdraw their opposition.
A more controversial proposal, SB 1128 and HB 919, that would prevent local governments from banning natural gas as an energy source in new construction, is continuing to move.
“We are trying to protect energy sources that consumers of the state are choosing to use,” said Rep. Josie Tomkow, sponsor of the House bill, at the House Local Administration & Veterans Affairs Subcommittee on Tuesday.
She warned that if natural gas were discouraged the state could experience blackouts. Left unsaid was that the Florida Public Service Commission is tasked with guaranteeing Florida has a reliable and abundant energy supply.
But the bills are still a big worry for local governments who have attempted to establish and reach clean energy goals by discouraging the use of natural gas in new construction.
“These bills will literally take away local governments’ right to decide how our homes and our businesses are powered,” Schafer said.
Seaports
SB 426, and HB 267 preempt local regulation of commerce in seaports and is intended to target three new ordinances adopted by more than 60% of voters in Key West in November. The referenda ban cruise ships with more than 1,300 passengers from docking at the city and limit the number of cruise visitors who can disembark each day to 1,500 with the goal of protecting the coral reef and its ecosystem.
The bill’s sponsor, Sen. Jim Boyd, R-Bradenton, said the bill isn’t about banning cruise ships, and he contradicted claims by environmentalists, saying he believes “there is no scientific data that we have seen that shows the cruise lines or big boats tear up reefs or water.”
The Senate Community Affairs Committee amended the bill Wednesday to clarify that the state is not attempting to “hand control over to the state or any other authority” over the locally operated ports, Boyd said, but would continue to prohibit any city referenda to “alter maritime commerce,” specifically Key West.
“This just simply says the ports that are accepting cruise ships can’t discriminate based on size of the ship, passenger origin, nationality of the cruise lines, and the like,” he said.
The measure is opposed by the Florida Ports Council, a coalition of environmentalists, a coalition of local fishermen, and the city of Key West, and the companion bill, by Rep. Spencer Roach, R-North Fort Myers, has not had a hearing.
“This isn’t about banning cruise ships. This is about changing the business model of what Key West allows,” said Josh Aubuchon, lobbyist for a coalition called the Florida Ports for Economic Independence at the Senate Community Affairs meeting. “What they did not do was ban cruise ships, but what they did was adopt reasonable limits to protect the natural environment and conserve and promote the community character of the Florida Keys.
“This bill is an attack on the private property rights of the local ports. It takes away the ability of the ports of self governing themselves, something they’ve been able to do successfully for the past 200 years, and ruin the referenda passed by the citizens of the U.S.”
The Florida Harbor Pilots Association which says it has lost business because of the Key West ban, supports the bill. Its lobbyist, Warren Husband, argued that the state invests millions in its ports and if “a local government goes rogue, it could throw a wrench in that plan.”
On Monday, a coalition of 24 different environmental groups wrote a letter to Gov. Ron DeSantis asking him to help stop the quick-moving legislation aimed at overturning three referendums.
The coalition argued that the Florida Keys are home to the world’s third-largest barrier reef “and an ecosystem so fragile that it is designated a State Area of Critical Concern.” The letter said that the ship channel “runs directly through the Florida Keys National Marine Sanctuary and in the immediate vicinity of some of the most sensitive ecological preserves in the hemisphere, including the Key West National Wildlife Refuge; Sanctuary Preservation Areas including Sand Key, Rock Key, Western Sambo, and Western Dry Rocks.”
“Florida’s unique and irreplaceable environment is the driver for the state’s tourism economy and the reason why so many choose to make this great state home,” they wrote. “Our local governments have the opportunity to help protect these ecological treasures, if we let them lead. “
The measure won some Democratic support. Sen. Shevrin Jones, a West Park Democrat, voted for the bill in the Senate Transportation Committee with the understanding that Boyd would keep working to create “a product we could all be happy with.”
Home-based businesses
HB 403 restricts local government zoning by prohibiting regulations of licensed home-based businesses and sets up some conditions that the business would have to meet if they operate from a residential property. The bill also allows a home-based business owner to challenge a local government zoning restriction and recover attorneys fees if the business owner wins. The measure is ready for a vote of the full House but a companion bill, SB 266, has not had a hearing in the Senate.
Police budgets
A top priority bill for House Speaker Chris Sprowls and DeSantis, HB 1, is called the “Combating Public Disorder” law and has been pitched as a reaction to the violent mobs that stormed the nation’s Capitol on Jan. 6 and the Black Lives Matter protests of last summer. But it also creates a new appeal process for the budgets of local law enforcement agencies that allows the governor and cabinet to override a city’s budget reduction.
Citing the national “defund the police” rhetoric, the staff analysis of the bill says the goal is to allow a resident of the city to challenge a proposed funding reduction for the city’s police department. If a citizen files an appeal, the Executive Office of the Governor conducts a hearing and makes a recommendation to the governor and the cabinet, which can reverse the budget reduction. It is expected to be passed out of the full House this week.
Gaming
A bill being drafted this week by the state Senate to resolve an impasse over the gambling compact with the Seminole Tribe of Florida is also expected to include two new provisions that would allow a gaming license to move to another county and to preempt the ability of local communities, particularly Miami Beach, from rejecting the transfer of a casino permit.
Real estate mogul Jeff Soffer has lobbied Senate President Wilton Simpson, House Speaker Sprowls and DeSantis, urging them to allow him to transfer his slot machine permit from his Big Easy Casino in Hallandale Beach to his Fontainebleau Hotel and Resort in Miami Beach.
Whether the move is legal under Florida’s Constitution is a question likely to be sorted out in the courts, if it were to pass. But the prospect is enough to worry Miami Beach Mayor Dan Gelber and prompted the city commission last week to authorize additional lobbying firepower and legal assistance to fight the legislation.
“It’s not an incredibly novel idea, but it’s not one that has ever seen any kind of support before,” Gelber said at the March 17 city commission meeting. “We believe it has the support, potentially, of the governor and the legislative leadership.”
Also concerned is developer Armando Codina, who dedicated much of his career to developing the city of Doral, and he warns that if the state allows Soffer to transfer a gaming permit, then Donald Trump is likely to be allowed to do the same with another permit, allowing him to turn the Trump National Doral into a casino resort.
“It would change the fabric of this community forever,” Codina told Miami Beach commissioners at the March 17 meeting. He said he would work with Gelber and auto magnate Norman Braman “to fight this to the bitter end.”
Rep. Michael Grieco, D-Miami Beach, says Florida’s diversity doesn’t do well with a one-size-fits-all approach. “To have someone in Tallahassee dictating how Miami Beach is going to manage its own community is a very hard pill to swallow,” he said. “Local officials are the ones that most directly touch the residents and they know best when it comes to what’s best for their local community.”
Firearms
The state already preempts local governments from regulating firearms and ammunition, and SB 1884 expands the preemption to clarify that they can’t also use “unwritten policies” to restrict firearms.
The bill sponsor, Sen. Ray Rodrigues, R-Estero, cited the example of a police chief who refused to return someone’s gun held in the evidence room after the person had been arrested and the case had been deposed, requiring the person to get a court order. When pressed in a committee last week, he could not cite which police chief was involved. The bill also allows people to sue local governments if they violate the firearms preemption law.
Sen. Tina Polsky, D-West Palm Beach, who was among the Democrats opposing the bill, said it sounded like the bill was attempting to correct a problem with police conduct, not a city-established policy.
DeSantis holds key
As governor, DeSantis has the power to halt the preemption laws, but his record on them has been uneven.
Last year, after the Key West city commission voted to prohibit the sale of sunscreen lotions containing two chemicals that had been shown to be damaging to coral reefs, legislators passed SB 172 to overturn the action. Proponents, such as the Florida Chamber of Commerce and the Florida Retail Federation, argued that all sunscreen should be available for people in the Keys because of the danger of skin cancer.
DeSantis, who had previously vetoed a similar bill to preempt bans on plastic straws, signed the sunscreen bill without commenting on his reasons.
When it came to vacation rentals, DeSantis had signaled that he supports the ability of local governments to regulate them. Last year, after Simpson, now the Senate president, forged a compromise on vacation rentals between the advertising platforms, Florida Realtors and the Florida Restaurant & Lodging Association, the governor squelched it.
“We have 22 million people, almost. We are a very diverse state. For us to be micromanaging vacation rentals, I am not sure that is the right thing to do,” DeSantis said at the time.
This year, as local governments have been roadblocks to his attempts to open everything in the face of a pandemic, the governor has imposed his own preemptions. He issued an executive order to block local governments from issuing mask mandates and social-distancing limitations for businesses, and another executive order rescinding all fines. Several local governments, including Miami-Dade County, have defied him and continue enforcing the public health mandates and issuing fines.
Next: 5 key takeaways on state preemption trends during COVID-19
(c)2021 Miami Herald
Visit Miami Herald at www.miamiherald.com
Distributed by Tribune Content Agency, LLC.