Jesse Scheckner
Businesses in Florida are now one step closer to having a state-sanctioned path to sue local governments and halt enforcement of ordinances that hurt their bottom line.
The Senate passed legislation (SB 170) Wednesday that would hand businesses new tools to fight what they deem to be harmful oversteps by counties and cities.
Critics blasted the bill as a litigious tarpit that will open governments across Florida to frivolous lawsuits. Proponents like Plant City Republican Sen. Jay Trumbull, the measure’s sponsor, have labeled it the preemption to end all government preemptions and say it’s a much-needed check on careless rulemaking.
“We come up (to Tallahassee) year after year and there are preemption bills,” he said. “Our hope is that through this particular piece of legislation that there will be no more … and it gives local governments an opportunity to hit the pause button, see what they’re doing and maybe see if the ends justify the means on (an) ordinance.”
If it becomes law, SB 170 will enable companies to sue county and city governments that pass “arbitrary or unreasonable” ordinances that harm profits for up to $50,000. While a court decides the legitimacy of that claim on a fast-tracked basis — a provision called “rocket docket” — the local government would have to suspend enforcement of the ordinance in question.
If the ordinance is ultimately deemed to be “valid and enforceable,” governments would still have to wait 45 days from that judgment to resume enforcement. And that process again is interrupted if the plaintiff obtains a stay of the lower court’s order or another business files suit over the same issue.
Asked by Democratic Sen. Tracie Davis of Jacksonville to define “arbitrary or unreasonable,” Trumbull said the term covers any local measure “that fails to pass the courts’ lowest standards and one that does not have a rational relationship to a legitimate government interest.”
The bill would also require county and city legislative bodies — Commissions, Councils and the like — to produce and post to the government website a “business impact statement” during the drafting phase of the ordinance. The document must include ample information about the proposed ordinance, including its estimated economic impact on for-profit businesses, how many businesses it will affect and the enforcement cost.
Emergency ordinances or measures to adopt budget amendments, comply with federal or state law, or the issuance and refinancing of debt would be exempted. Local governments would also have the final say on rules relating to their growth policy and planning and development regulations, including zoning and development orders, agreements and permits.
Ironically, SB 170 would not extend to the state government, which is shielded by a centuries-old doctrine called sovereign immunity that prevents governments from lawsuits.
Senators passed the bill at around 7 p.m. on an almost exclusively partisan line. St. Petersburg Rep. Darryl Rouson was the only Democrat to vote “yes.”
The bill’s applications and implications are myriad. Critics have cited its potential to occlude government oversight of everything from neighborhood noise ordinances, bans on single-use plastics and limiting the size of vessels calling on seaports to efforts localities have made to stymie predatory landlord practices through tenant bills of rights.
Trumbull confirmed SB 170 would also extend to local living wage ordinances “unless there’s a contract.”
Miami Sen. Jason Pizzo, a lawyer and former prosecutor, noted the bill stipulates that upon losing a legal challenge, local governments must cover the plaintiff’s attorney’s fees; however, if the government prevails, the business that brought forth the lawsuit would face no such liability. He asked why the bill was written that way, since the lack of financial penalties for businesses challenging the ordinance in court, in essence, practically invites vexatious litigation.
Trumbull said it’s to help businesses, which can already sue governments for assumed damages to profit but may not otherwise be able to hire lawyers to represent them.
“The reality is when there is an ordinance that is egregious, arbitrary, unreasonable (or) already prevented by the state, (the governments) should lose,” he said. “But our sincere hope and most sincere desire is that it never ends up in court.”
Several industry and advocacy groups, including the Florida Association of Counties and Florida League of Cities — backed the legislation, as they and several others did its Senate and House versions last year by St. Johns County Sen. Travis Hutson and Cape Coral Rep. Mike Giallombardo.
This year, Republican Rep. Robert Brackett, a former Mayor of Vero Beach, filed the bill’s House analogue (HB 1515).
Other groups, including Progress Florida and Sierra Club Florida, have condemned the measure as placing the financial burden on taxpayers to defend against for-profit corporations for passing local laws that serve the unique needs of their communities.
They point to similar legislation from last year (SB 620), a top priority of then-Senate President Wilton Simpson, which Gov. Ron DeSantis vetoed after it cleared both chambers of the Legislature.
DeSantis pointed to the “broad and ambiguous language” of SB 620 as potentially troublesome and disagreed with its exemption of emergency orders that led to “bizarre and draconian measures adopted by some local governments during COVID-19.”
Trumbull’s bill would supersede those types of local emergency dictates.
5 comments
Paul Passarelli
March 9, 2023 at 9:57 am
Huzzah!
I support *EVERYTHING* that puts the brakes on government overreach.
I applaud every legislator that takes a step back and realizes that their job is to *REGULATE & GUIDE* society by creating laws that are just and fair, not petty and capricious.
cassandra
March 11, 2023 at 1:47 pm
1:44 pm was reply meant for you
cassandra
March 11, 2023 at 1:44 pm
Hi Paul,
This legislation is neither logical nor rational. Corporations should not be deciding local regulations. That’s the right of the residents through their democratically elected representatives. Big bureaucratic state government should limit itself to necessary functions; not interfere with the people’s right to self-government at the neighborhood level. The best government is small and local. This legislative overreach should be rejected.
BTW, The only costs considered will be potential, imaginary, but not actual, decreased corporate profits; The losses suffered by residents including lowered property values, unusable beaches, increased crime, decreased safety, and negative impact on the small businesses now protected by regulations will be borne by taxpayers in cities and (especially) rural areas.
Paul Passarelli
March 11, 2023 at 3:29 pm
The reason I’m in favor of anything & everything that hobbles government, is because those that govern, the lifetime politicians, have time and time again demonstrated that their inclination is to pander to those with the loudest mouths! Especially when the *victims* of that pandering are businesses!
Why do they do it? Because the ‘general consensus’ is that businesses don’t vote, and they are seen as having deep pockets thus making them able to absorb the blows that cost them money. Even though each and every cost increase they are required to bear is ultimately passed on to their customers!
Back in Norwalk, every week, or so there would be some edict from one of the too numerous to count city agencies that placed some new restriction, or mandated some form of participation on local businesses.
So it the criteria is logical & rational legislation, then the local governments should be the ones committing seppuku on the courthouse stairs. But we all know that’s not going to happen.
I’ve got no issue with simply lats that are fairly applied, provided they make sense and do not simply punish someone for something they only ‘offends’ some tiny and vocal minority, and will cost the business and its regular customers, without any reciprocal benefits.
cassandra
March 12, 2023 at 4:55 pm
Hi Paul,
Here’s how I see it: This legislation is promoted as being good for the people, who are being told it will limit government overreach. That’s just not true. The law would actually be centralized state government taking away local residents’ rights, and handing those rights to corporations which, as the ‘Disney’ stunt shows, are answerable only to our big government governor. And the state will no doubt punish any company that fails to fight-off any regulation that the state wants eliminated. If passed big government will control regulations throughout the entire state. Wait and See.
The regulations that the legislature (DeSantis) wants to be rid of are the ones Floridians demand: People don’t want plastic straws and needles on the beach for their kids to pick up. Residents want noise nuisance limits and protection for turtle eggs and hatchlings. Taxpayers don’t want to see business ads and restaurant menus hanging from public street lamps. All are supported by facts and reason, yet this article assesses that corporate harassment will put them and others in danger.
(Bonus?: What about businesses with competing interests? Do both businesses have the right to sue the local government, aka the taxpayers, cost-free?)
As you say, every cost is “passed on to their customers”. It should be. In most cases it’s one’s choice to become a customer. Charge the people who want the product, and if the price goes high enough another company will do it for less. They will compete downward until they reach a reasonable price, at which point I may consider their goods or services.
Unfortunately, unless they can be distracted with nonsense, there’s no reason to think the legislature plans to stop at banning citizens’ ability to regulate their own neighborhoods. Voter amendments will be next. They may even succeed this time by convincing the kooks that amendments should require 99% voter approval to :protect kids from “Leftist groomers” or to: protect kids from school-based gun vending machines. Is this my imagination?
Despite my comments, I do agree that there are too many restrictions and regulations—in all area of our lives.
I’ve never been to Norwalk, but have driven through CT many times on trips north from DE. You must have liked it there? I mean other than the public schools! Do you ever talk about what actually caused you to leave CT when you did ? Or why it was Florida that you moved to? It’s hot here, humid, and nothing gets done in a hurry..
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