Businesses at odds with local governments over the regulation of everything from noise and plastic straws to the size of cruise ships calling on small seaports will soon have a lot more firepower at their fingertips.
Gov. Ron DeSantis just approved a measure (SB 170) titled “Local Ordinances” — an apt name, because those are its target.
The measure, sponsored by Panama City Republican Sen. Jay Trumbull, will enable businesses to sue county and city governments over policies they believe are “arbitrary or unreasonable.” While a court decides the legitimacy of that claim on a fast-tracked basis known as “rocket docket,” the local government will have to halt enforcement of the ordinance in question.
If the plaintiff wins, the government will be on the hook for up to $50,000 in attorneys fees, and the ordinance will have to be eliminated. If the court finds the challenge baseless or that the ordinance is “valid and enforceable,” governments would still have to wait 45 days from that judgment to resume enforcement. And that process could again be interrupted if the plaintiff obtains a stay of the lower court’s order or another business files a substantively different but identically targeted claim.
Beginning Oct. 1, when the new law goes into effect, local governments will also have to produce and post on their websites a “business impact statement” prior to the passage of an ordinance detailing its purpose, estimated financial impacts and how much enforcing it will cost taxpayers.
The measure, which DeSantis quietly signed just after 5 p.m. Thursday, does not apply to ordinances relating to the adoption of a budget, procurements, grant agreements or to comply with state or federal mandates.
Ironically, the new state law also does not extend to the state itself, which is shielded by a centuries-old doctrine called sovereign immunity.
The measure’s applications are myriad. Critics have cited its potential to hamper home rule and a local government’s ability to regulate noise, set last calls for alcohol in party-heavy areas, ban single-use plastics and limit the size of vessels calling on seaports, among other quality-of life considerations.
Former Democratic Sen. Gary Farmer of Fort Lauderdale called it “extreme overreach” of state government, adding that it will be a “trial lawyer’s dream” for the number of lawsuits statewide it could attract.
David Cullen, a lobbyist for environmental advocacy group Sierra Club Florida, said it will “chill local government’s willingness to protect their communities” while disproportionately benefiting businesses over residents.
“There’s already a legitimate and fair process in place. It’s called an injunction,” he said during an argument over an earlier version of the bill last year.
Industry groups — including the Florida Restaurant and Lodging Association, Florida Professional Vacation Rental Management Association, Associated Industries of South Florida, Florida Chamber of Commerce, Americans for Prosperity and the Florida Association of Counties, among others — have been overwhelmingly supportive.
Cape Coral Republican Rep. Mike Giallombardo, who carried the House measure last year, said the bill’s aim is simple: to keep local issues where they are and reduce the number of state preemptions while empowering businesses to defend their bottom lines.
“This is giving these small businesses the ability to challenge it at the local level (and) work together on it,” he said. “(It) keeps the state out of it as much as we can.
Vero Beach Republican Rep. Robbie Brackett, who sponsored the House companion to SB 170, argued the bill does nothing to erode the ability of localities to self-govern. A former city Mayor, he noted that most local governments have just a handful of people in elected positions to make decisions that affect thousands of residents and millions of dollars of potential business revenue.
“What it does is it allows the stakeholders of a community a vehicle to take action and stand against local governments that go too far,” he said. “I’ve supported local government, but just because we are local officials does not give us the right to impose onerous ordinances on other people.”
Of note, Brackett, Giallombardo, Trumbull and Stewart all voted for another GOP-backed measure this year, which DeSantis also signed, banning voter referendums and ballot initiatives on land development regulations. Under the new rule, only that handful of elected officials to which Brackett referred will be able to make decisions about local construction, zoning and annexation decisions.
Brackett and Trumbull resurrected SB 170 in late January after the measure failed to pass during the 2022 Legislative Session, when it faced scrutiny over its potential pitfalls. Prior to the bill’s passage last month, several Democratic Representatives again raised concerns and unsuccessfully proffered more than a dozen amendments to soften its impacts. All failed.
One amendment by Rep. Rita Harris or Orlando would have added exceptions for ordinances relating to affordable housing or residential tenant protections.
A second by Rep. Yvonne Hinson of Gainesville would have required any ruling for a plaintiff to be followed by the state taking out a 14-point, boldface type notice in a local newspaper explaining what the ordinance would have done and stating, “By the order of Governor Ron DeSantis and the majority of the Florida Legislature, despite approval by local, democratically elected leaders, the state of Florida has determined this local ordinance is now null and void.”
A third amendment by Rep. Angie Nixon of Jacksonville would have exempted businesses principally located communist countries or with investments in the Communist Party from being able to take advantage of the proposed law. Yet another by Miami Rep. Ashley Gantt would have exempted ordinances intended to reduce greenhouse gas emissions, encourage the use of clean energy or address sea level rise.
Miami Gardens Rep. Felicia Robinson, who filed a pair of rejected amendments, including one to provide a carve-out to ordinances supported by local law enforcement, said it is “somewhat hypocritical” that several of the bill’s supporters previously served in local office — and that the bill does not apply to the state.
By making local governments responsible for covering the attorneys’ fees of those that sue them, she said, lawmakers were essentially putting the burden of cost on those who elected them.
“I don’t understand why we want to do that,” she said. “I hope that Floridians are paying attention that we are up here passing this piece of legislation that ultimately is going to affect you at home. You’re going to be charged, through your taxes, with these attorneys fees that they’re allowing.”
She added, “This is a bad bill. I think all of us here know it … because it does not help the everyday Floridians and our local residents.”