Florida Senate sponsor agrees to weaken preemption bill

Florida TaxWatch published a report saying the original bill would encourage a flurry of expensive lawsuits against local governments.
Florida Sen. Travis Hutson, center, makes a point at a Senate Community Affairs Committee meeting during a legislative session, Wednesday, Jan. 12, 2022, in Tallahassee, Fla. (AP Photo/Phelan M. Ebenhack)
Florida Sen. Travis Hutson, center, makes a point at a Senate Community Affairs Committee meeting during a legislative session, Wednesday, Jan. 12, 2022, in Tallahassee, Fla. (AP Photo/Phelan M. Ebenhack) [ PHELAN M. EBENHACK | AP (2022) ]
Published Jan. 27, 2022

TALLAHASSEE — Facing a barrage of opposition from local governments and skepticism from members of his own party, Sen. Travis Hutson, R-St. Augustine, on Wednesday filed an amendment to his bill allowing businesses to recover damages from local government if an ordinance forces them to lose 15 percent of their revenues.

Senate Bill 620 is a priority of Senate President Wilton Simpson, a Trilby Republican who is running for agriculture commissioner in November. It passed the Senate Appropriations Committee meeting last week on a party-line vote but appeared to face stiff headwinds when it came to a vote of the full Senate.

Related: Florida bill would let businesses sue local governments if an ordinance hurts profits

Florida TaxWatch, the business-backed research organization, issued a report on Wednesday critical of the legislation and warned that if the bill becomes law it will encourage a flurry of expensive lawsuits against local governments and the cost would be borne by taxpayers.

“Our research shows that legislation that encourages legal challenges in an already extremely litigious state like Florida could lead to a number of financially motivated and malicious lawsuits, costing local governments over $900 million annually,” TaxWatch President Dominic Calabro said in a statement.

He noted that because of the expected cost of the lawsuits, “local governments will be forced to respond by increasing taxes to cover legal fees or reducing the level of services provided to taxpayers. And either way, taxpayers lose.”

Hutson’s amendment, filed late Wednesday, would significantly weaken several components of the bill and give local government a pathway to avoid paying damages entirely.

“It’s enough to turn this from a mortal wound to a gut punch,” said Rebecca O’Hara, lobbyist for the Florida League of Cities. “That’s not to say this is not a big deal, and there are a lot of unknowns how it’s going to play out in the real world. But we’ve put safeguards in it to give local governments enough options.”

Essentially, the bill would first remove the opportunity for any business to file a claim against a local government and instead require that a business be operating in a city or county for three years before it is eligible to sue.

This provision could help local governments crack down on pill mills and strip clubs but may not allow them to go after established businesses that start hosting unwanted activity — such as a convenience store operating as an “internet cafe” to conduct gray market gambling.

“We are going to just have to rely on the Legislature to be vigilant and work with us as these issues arise and be able to respond quickly,” O’Hara said.

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Once a claim against a local government is filed, the city or county can avoid paying damages by doing one of three things:

  • Repeal the offending ordinance.
  • Amend the ordinance in a way that removes the offending provision.
  • Grant the business a hardship waiver, which would be determined by the local government.

To remove the incentive for phishing lawsuits to be filed, putting taxpayers on the hook for frivolous lawsuits, the bill now requires that the prevailing party pay attorneys fees.

And to make sure that local governments are not held liable for when they are enforcing state statutes, the amendment prohibits lawsuits if the Legislature has expressly authorized them to implement mandates, local option taxes and other protections.

The Senate is expected to take up the amendment when it meets Thursday afternoon.

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