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Businesses could block new local regulations by suing, under Florida bill

Some worry that the bill includes no definition of what makes an ordinance “arbitrary” or “unreasonable.”
 
Pastor Victor McCleskey, with the KJV (King James Version) Baptist Church of New Port Richey, argues against an ordinance that would provide a buffer for vehicles entering and exiting the parking lot at the Bread and Roses women's health clinic in Clearwater while attending a meeting of the Clearwater City Council on Thursday, March 2, 2023.
Pastor Victor McCleskey, with the KJV (King James Version) Baptist Church of New Port Richey, argues against an ordinance that would provide a buffer for vehicles entering and exiting the parking lot at the Bread and Roses women's health clinic in Clearwater while attending a meeting of the Clearwater City Council on Thursday, March 2, 2023. [ DOUGLAS R. CLIFFORD | Times ]
Published March 24, 2023

TALLAHASSEE — One business can stop a city ordinance under a new bill designed by Senate President Kathleen Passidomo that passed its final legislative committee on Thursday.

The measure, HB 1515 and SB 170, requires counties and cities to produce a business impact estimate prior to passing an ordinance and allows a business owner to file a lawsuit claiming the ordinance is “arbitrary” or “unreasonable” and halt a local ordinance within 90 days of its enactment. The court would have to give the lawsuit an expedited hearing, but local officials would have no option but to suspend the rule or law regardless of how long they spent developing it and no matter whether the community is demanding it.

It is a powerful new tool intended to end the perennial preemption battle that takes place in Tallahassee, said Passidomo, a Naples real estate attorney who conceived of the idea last year. But opponents warn that it will have a chilling effect on the willingness of cities and counties to manage their communities.

“The purpose of that bill is to be the end of all preemptions,” Passidomo said on Thursday. “I’m sick and tired of us having to preempt when a local government passes an ordinance that’s unreasonable. I call it stupid.”

Democrats, many of them former local elected officials, warned that the law includes no definition of what is arbitrary and unreasonable. They said they fear that a single business could use the measure to overturn local ordinances to prohibit wage theft, puppy mills, and lighting restrictions intended to protect breeding sea turtles in coastal communities. They say it could also affect the ability to regulate strip clubs and drag shows and even impose noise restrictions in neighborhoods.

“The vague language, in my humble opinion, leaves great room for judicial advocacy in defining that,” said Rep. Ashley Gantt, a Miami lawyer and a Democrat. “If we talk about the sanctity of democracy … this bill is the antithesis to that purpose.”

A rival idea last year

Last year, Passidomo’s idea won the reluctant support of the Florida Association of Counties and the Florida League of Cities because the idea was less onerous than the more punitive measure that was being advanced by Wilton Simpson, R-Trilby, who was then Senate president.

Under that bill, SB 620, taxpayers would have been required to pay damages if a local government ordinance resulted in a business losing 15% of its revenue. But Gov. Ron DeSantis vetoed the Simpson bill. DeSantis warned it would “lead to both unintended and unforeseen consequences and costly litigation.”

Related: DeSantis vetoes bill that would have punished local governments for regulating business

This year, lawmakers revived Passidomo’s idea, and it has the support of some of the state’s largest business interests: the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Retail Federation, and the Florida Association of Home Builders.

The League of Cities and the Florida Association of Counties have supported it. But individual counties and cities, including Miami-Dade County, have expressed opposition.

Under the bill, taxpayers will be on the hook for the defense of any legal challenge. If the business loses the lawsuit, it will pay its own legal fees, but it does not have to reimburse taxpayers for the local government legal fees.

“What you’re saying is anyone can file their lawsuit, even if they have deep pockets and it’s for the wrong reasons, and all of my residents in my community have to pay those fees under your new statute. Is that correct?” Rep. Robin Bartleman, a Weston Democrat, asked the sponsor of the bill on Thursday during a lengthy debate in the House State Affairs Committee meeting.

“That is correct,” replied Rep. Robbie Brackett, a Republican and former Vero Beach mayor.

“This legislation does not prohibit any ordinance of any kind to be done, it just holds them accountable if it was deemed by the courts to be unreasonable,” he said.

Bartleman suggested that a better approach would be to keep the ordinance in place until a challenge goes through the legal process. She noted that there will be Republican-dominated communities like The Villages that have spent weeks or months developing an ordinance, “and because of one random business” with deep pockets and a strong legal team the ordinance can be frozen.

“It would just paralyze all local government,” said Rep. Joe Casello, a Democrat and former Boynton Beach city commissioner. “These people have a voice on these ordinances. They’re posted twice so everybody can have their input and an educated decision is made. … To come up here and tell my constituents what’s good for them is ludicrous.”

Influence can come from inside and outside government

Rep. Jim Mooney, an Islamorada Republican, said he has watched as “people on the outside use inside sources to attack good ordinances, and unfortunately they’re usually going to win because of time and money.”

He said he didn’t see the bill as “the mother of all preemptions” but a “watered down version” of the measure they passed last year.

But Rep. Juan Fernandez Barquin, a Miami Republican, said he has seen the opposite happen, when a “small group of activists pressured the city commission to pass an arbitrary and capricious ordinance.”

“This bill will balance the playing field and hopefully the looming threat will bring the local government back to the negotiating table and at least further amend the ordinance,” he said.

Jackson Oberlink, lobbyist for the advocacy group Florida Rising, told the committee that he feared the bill will make it harder for his hometown community of Indian River to protect residents from another blue-green algae outbreak in its waterways.

“If this bill passes, it would allow for big sugar, sewage companies and chemical manufacturers to sue Indian River County for trying to protect the lagoon and stop them from enforcing ordinances that would regulate pollution,” he said. “There are many possible unintended consequences that clearly have not been considered. This bill serves corporations, not working-class Floridians.”

Exemptions to the proposed rule

There are some exceptions to the presumption that an ordinance be stopped because of a legal challenge. For example, if a local government declares that an emergency exists requiring the immediate enactment of an ordinance, such as the emergency rule Miami Beach passed last week to address spring break crowds. Those emergency rulings could be challenged as well but not given the automatic preemption by the court.

Sen. Travis Hutson, a Palm Coast Republican who advocated for the Passidomo bill last year, said that without this legislation it can now take years for a business that has been negatively impacted by a local ordinance to get a resolution through the courts.

Because of that, businesses and legislators have turned to the Legislature to resolve the disputes by imposing rules that preempt local governments from regulating everything from cruise ships, to sunscreen, to natural gas hook-ups, plastic straws and single-use plastic bags.

“This is just saying look, there’s a stay [of the ordinance], courts have a rocket docket to make this go as fast as you can; they figure out a ruling, and then it’s over and it doesn’t escalate up to our level,” Hutson said Thursday. “The state keeps the business afloat until the courts resolve it.”

The Senate has passed the bill and it is now headed for a vote of the full House.

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