Florida lawmakers want to let local government regulate smoking in parks but not mask wearing

One bill in the Florida Legislature would do more to preempt local control while another loosens existing preemption law.
State Rep. Manny Diaz Jr., R-Hialeah, is the sponsor of Senate Bill 1924, which would limit locally issued emergency orders to 10 days and give the governor and Legislature the power to invalidate them.  [SCOTT KEELER   |   Times]
State Rep. Manny Diaz Jr., R-Hialeah, is the sponsor of Senate Bill 1924, which would limit locally issued emergency orders to 10 days and give the governor and Legislature the power to invalidate them. [SCOTT KEELER | Times]
Published Mar. 17, 2021|Updated Mar. 17, 2021

TALLAHASSEE — Local government can ban a person sitting outside a Little League baseball dugout from smoking, but if that person is asymptomatic for COVID-19, local government cannot make them wear a mask amid a deadly pandemic.

That is the effect of two bills moving through the Florida House and Senate this week. One preempts local government from imposing public health crisis-related restrictions such as curfews and mask mandates for more than a week, and the other loosens existing preemption law to give local governments the power to limit smoking in public beaches and parks.

The issue highlights the tension between Gov. Ron DeSantis, who has issued his own emergency orders prohibiting the enforcement of local mask mandates and curfews during the pandemic, and local officials who have used those measures to attempt to prevent the spread of the contagious virus. Many of Florida’s Republican-led legislators agree with the governor, even though many have said local officials are often better suited to respond to a local crisis than the state.

Related: DeSantis and Florida Cabinet waive fines from COVID-19 restrictions

“Government closest to the people governs best,” said Rep. Thad Altman, an Indialantic Republican who is sponsoring House Bill 239, which would allow local governments to impose new rules on smoking in parks and beaches. “They know the size of their parks and, in the case of coronavirus, they know if there’s a local outbreak.”

He argued that cigarette butts are the leading cause of beach pollution, and the measure gives cities and counties the flexibility to create designated smoking zones in public parks. The House Professions & Public Health Subcommittee on Tuesday passed House Bill 239 and the Senate Environment and Natural Resources Committee on Monday passed a similar measure, Senate Bill 334, by Sen. Joe Gruters, R-Sarasota.

“Hundreds and hundreds and hundreds of thousands of cigarette butts are removed from our beaches each year,’' said Altman, whose district includes some of Brevard County’s beachfront communities. “It has become the single largest pollutant to our beaches. This bill allows local governments to regulate smoking. That doesn’t mean that they will prohibit smoking, but it gives them the opportunity to at least address these conflicts.”

But when it comes to protecting public health in the face of a public health emergency, or in the aftermath of a hurricane, legislators don’t want local government to have the same reach.

“We have seen not only throughout the country but throughout our state different iterations of executive orders dealing with a lot of times the removal of freedom, rights, etc. when dealing with the pandemic,” said Sen. Manny Diaz Jr., R-Hialeah, sponsor of Senate Bill 1924.

Following months of controversy over local mask mandates and curfews, his bill and a similar version, House Bill 945 by Rep. Bob Rommel, R-Naples, would limit locally issued emergency orders to 10 days and give the governor and Legislature the power to invalidate them.

Limiting duration of local orders

Diaz said he was most concerned about unelected city managers and mayors who have imposed emergency orders that have an effect on local businesses for months during the pandemic.

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Senate Bill 1924, which passed the Senate Community Affairs Committee on Tuesday, an emergency order issued by a mayor could be extended if it has the support of local governing bodies. Rommel’s bill, which passed the Pandemics & Public Emergencies Committee on March 10, would allow the extensions to go a maximum of 42 days, approved in seven-day extensions.

Current law allows city and county officials to declare a local state of emergency for seven days and extend it indefinitely in seven-day increments as needed.

Diaz said the measure was intended to target things like local curfews which, he said, raise questions about whether there is evidence to justify “measures on people’s liberty right to conduct business or move around.” He also said it was unfair that some businesses were allowed to open while others, like restaurants and fitness centers, faced restrictions.

But officials for cities and counties warned that if the bill passes it could cripple home rule, the authority of a city or county to exercise governing power over the people in its borders.

“This legislation seeks to restrict local government’s ability to address, respond and mitigate the impact of emergencies,” said Tonnette Graham, associate director of public policy with the Florida Association of Counties. “We think this is an overreaction to the current pandemic and sets precedents as to how we’ll be able to address emergencies in the future. Passing this bill might just be the beginning of the ending of home rule.”

Under questioning from Sen. Tina Polsky, a Boca Raton Democrat, Diaz conceded that while the bill attempts to limit the ability of mayors to issue executive orders, the governor has the same executive authority to indefinitely extend his emergency rules.

“We elect local government to support our local needs, and they should have the freedom to rule as they need and not be dictated to by a timeline that may not work,” Polsky said.

Diaz denied that the measure hamstrings local government and called it “a common-sense provision, which allows an executive still to take actions, but it puts a check on them by other elected local leaders that would have to concur.”

Statewide groups oppose the bills

The Diaz and Rommel bills are opposed by the League of Cities and Florida Association of Counties, along with other advocacy groups such as the League of Women Voters and Florida Rising. The groups all support the Altman and Gruters bill that gives them flexibility.

The bills are just some of a lengthy list of preemption bills advancing through the Legislature. On Tuesday, the Senate Community Affairs Committee also passed Senate Bill 284, which would prohibit local governments from imposing specific building design elements, such as color, type or style of exterior, style or material of roof structures or porches and exterior ornamentation, in single and two-family dwellings. The bill exempts communities that have homeowners associations or gated communities.

The bill’s sponsor, Sen. Keith Perry, an Alachua Republican, argues that these requirements raise the cost of housing, making homes less affordable. Opponents included 1000 Friends of Florida and the League of Women Voters.

The Senate committee also passed Senate Bill 856, which would prohibit the replacement of gas stations with greener energy options, and block the replacement of natural gas as a home energy source (Senate Bill 1128).

Sen. Travis Hutson, a St. Augustine Republican, argued that the bills will allow local governments to advance clean energy options without prohibiting energy sources already in place. Hutson said cities in California have started to ban gas stations.

“If they want to keep doing the solar, wind, energy-efficient electric vehicle things that they have in place, and they want to continue to do within their city, they are certainly allowed to,” Hutson said. “They just can’t cut off or be regressive to the consumers’ choice of what’s in place currently today.”

Similar proposals in the House each have cleared a single panel and await an appearance in the Local Administration & Veterans Affairs Subcommittee.

The News Service of Florida contributed to this report.

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