HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 735 Preemption of Local Occupational Licensing
SPONSOR(S): Harding
TIED BILLS: IDEN./SIM. BILLS: SB 268
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee 13 Y, 4 N Wright Anstead
2) Commerce Committee 19 Y, 5 N Wright Hamon
SUMMARY ANALYSIS
The Florida Constitution grants local governments broad home rule authority. Non-charter county governments
may exercise those powers of self-government that are provided by general or special law. Those counties
operating under a county charter have all powers of self-government not inconsistent with general law or
special law approved by vote of the electors. Likewise, municipalities have governmental, corporate, and
proprietary powers that enable them to conduct municipal government, perform functions, provide services,
and exercise any power for municipal purposes, except as otherwise provided by law.
General law directs a number of state agencies and licensing boards to regulate many professions and
occupations. General law can also authorize or preempt local regulation of professions and occupations, which
is typically done specifically and individually by subject matter, business type, or occupation.
The bill expressly preempts the licensing of occupations to the state and supersedes any local government
licensing of occupations. However, any licensing of occupations adopted prior to July 1, 2021, will continue to
be effective until July 1, 2023, at which time it will expire. Any licensing of occupations authorized by general
law is exempt from the preemption.
The bill specifically prohibits local governments from requiring a license for a person whose job scope does not
substantially correspond to that of a contractor or journeyman licensed by the Construction Industry Licensing
Board, and specifically precludes local governments from requiring a license for: painting, flooring, cabinetry,
interior remodeling, handyman services, driveway or tennis court installation, decorative stone, tile, marble,
granite, or terrazzo installation, plastering, stuccoing, caulking, canvas awning installation, and ornamental iron
installation.
The bill also expressly authorizes counties and municipalities to issue journeyman licenses in the plumbing,
pipe fitting, mechanical and HVAC trades, as well as, the electrical and alarm system trades, which is the
current practice by counties and municipalities.
The bill does not appear to have a fiscal impact on state or local governments.
The bill has an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
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DATE: 3/16/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Present Situation
Local Government Authority
The Florida Constitution grants local governments broad home rule authority. Non-charter county
governments may exercise those powers of self-government that are provided by general or special
law.1 Those counties operating under a county charter have all powers of self-government not
inconsistent with general law or special law approved by vote of the electors.2
Likewise, municipalities3 have those governmental, corporate, and proprietary powers that enable them
to conduct municipal government, perform functions, provide services, and exercise any power for
municipal purposes, except as otherwise provided by law. 4
A "special district" is a unit of local government created for a particular purpose, with jurisdiction to
operate within a limited geographic boundary. Special districts are created by general law,5 special act,6
local ordinance,7 or by rule of the Governor and Cabinet.8 A special district has only those powers
expressly provided by, or reasonably implied from, the authority provided in the district’s charter.
Special districts provide specific municipal services in addition to, or in place of, those provided by a
municipality or county.9
A “dependent special district” is a special district where the membership of the governing body is
identical to the governing body of a single county or municipality, all members of the governing body
are appointed by the governing body of a single county or municipality, members of the district’s
governing body are removable at will by the governing body of a single county or municipality, or the
district’s budget is subject to the approval of the governing body of a single county or municipality.10 An
“independent special district” is any district that is not a dependent special district.11
Revenue Sources Authorized in the Florida Constitution12
The Florida Constitution limits the ability of local governments to raise revenue for their operations. The
Florida Constitution provides:
No tax shall be levied except in pursuance of law. No state ad valorem taxes13
shall be levied upon real estate or tangible personal property. All other forms of
taxation shall be preempted to the state except as provided by general law.14
1 Art. VIII, s. 1(f), Fla. Const.
2 Art. VIII, s. 1(g), Fla. Const.
3 A municipality is a local government entity created to perform functions and provide services for the particular benefit of the population
within the municipality, in addition to those provided by the county. The term “municipality” may be used interchangeably with the terms
“town,” “city,” and “village.”
4 Art. VIII, s. 2(b), Fla. Const. See also s. 166.021(1), F.S.
5 S. 189.031(3), F.S.
6 Id.
7 S. 189.02(1), F.S.
8 S. 190.005(1), F.S. See, generally, s. 189.012(6), F.S.
9 2018 – 2020 Local Gov’t Formation Manual, p. 62,
https://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3025&Session=2019&Doc
umentType=General%20Publications&FileName=2018-2020%20Local%20Government%20Formation%20Manual%20Final.pdf (last
visited Dec 19, 2019).
10 S. 189.012(2), F.S.
11 S. 189.012(3), F.S.
12 The Florida Legislature, Office of Economic and Demographic Research, 2019 Local Government Financial Information Handbook, p.
1, http://edr.state.fl.us/Content/local-government/reports/lgfih19.pdf.
13 “Ad valorem tax” means a tax based upon the assessed value of property.” Section 192.001(1), F.S.
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Counties, school districts, and municipalities shall, and special districts may, be
authorized by law to levy ad valorem taxes and may be authorized by general
law to levy other taxes, for their respective purposes, except ad valorem taxes on
intangible personal property and taxes prohibited by this constitution.15
However, not all local government revenue sources are taxes requiring general law authorization.
When a county or municipal revenue source is imposed by ordinance, the question is whether the
charge is a valid assessment or fee. As long as the charge is not deemed a tax, the imposition of the
assessment or fee by ordinance is within the constitutional and statutory home rule powers of county
and municipal governments. If the charge is not a valid assessment or fee, it is deemed a revenue
source requiring general law authorization.
Revenue Sources Based on Home Rule Authority
Pursuant to home rule authority, local governments may impose proprietary fees, regulatory fees, and
special assessments to pay the cost of providing a facility or service or regulating an activity. A
regulatory fee should not exceed the regulated activity’s cost and is generally required to be applied
solely to the regulated activity’s cost for which the fee is imposed.16
Preemption
State preemption precludes a local government from exercising authority in a particular area, and
requires consistency with the state constitution or state statute.17 A local government enactment may
be found inconsistent with state law if (1) the Legislature has preempted a particular subject area to the
state or (2) the local regulation conflicts with a state statute.18
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred.19 Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent.20 When local ordinances have
been enacted in the face of state preemption, the effect has been to find such ordinances null and
void.21
Implied preemption is a legal doctrine created to address those situations in which the courts may have
been concerned by the legislature’s failure to expressly preempt areas which, for all intents and
purposes, seemed dominated by the state. Findings of implied preemption are for a very narrow class
of areas in which the state has legislated pervasively.22
Professions and Occupations
General law directs a number of state agencies and licensing boards to regulate certain professions
and occupations. For example, the Department of Business and Professional Regulation (DBPR)
currently regulates approximately 25 professions and occupations.23
14 Art. VII, s. 1(a), Fla. Const.
15 Art. VII, s. 9(a), Fla. Const.
16 EDR, supra note 12, at 9.
17 James R. Wolf and Sarah Harley Bolinder, The Effectiveness of Home Rule: A Preemption and Conflict Analysis, 83 Fla. B.J. 92
(June 2009), available at https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-preemption-and-conflict-
analysis/.
18 Id.
19 See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d
1011, 1018 (Fla. 2d DCA 2005), approved in Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008).
20 Mulligan, 934 So. 2d at 1243.
21 See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
22 Wolf and Bolinder, supra note 17.
23 S. 20.165, F.S.
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General law determines whether local governments are able to regulate occupations and businesses,
and to what degree.24 If state law preempts regulation for an occupation, then, generally, local
governments may not regulate that occupation.25 For example, Florida law currently preempts local
regulation with regard to the following:
assessing local fees associated with providing proof of licensure as a contractor, or providing,
recording, or filing evidence of worker’s compensation insurance coverage by a contractor; 26
assessing local fees and rules regarding low-voltage alarm system projects;27
tobacco and nicotine products;28
firearms, weapons, and ammunition;29
employment benefits;30
polystyrene products;31
public lodging establishments and public food service establishments;32 and
disposable plastic bags.33
Conversely, Florida law also specifically grants local jurisdictions the right to regulate businesses,
occupations and professions in certain circumstances.34 For example, Florida law specifically
authorizes regulations relating to:
zoning and land use;
the levy of “reasonable business, professional, and occupational regulatory fees, commensurate
with the cost of the regulatory activity, including consumer protection, on such classes of
businesses, professions, and occupations, the regulation of which has not been preempted by
the state or a county pursuant to a county charter”;35
the levy of local business taxes;36
building code inspection fees;37
tattoo establishments;38
massage practices;39
child care facilities;40
taxis and other vehicles for hire;41 and
waste and sewage collection.42
Construction Professional Licenses
Chapter 489, F.S., relates to “contracting,” with part I addressing the licensure and regulation of
construction contracting, and part II addressing the licensure and regulation of electrical and alarm
system contracting.
Construction contractors are either certified or registered by the Construction Industry Licensing Board
(CILB) housed within DBPR. The CILB consists of 18 members who are appointed by the Governor
24 Art. VIII, s. 1(f), Fla. Const.; Art. VII, s. 9(a), Fla. Const.; Art. VIII, s. 2(b), Fla. Const.; s. 166.021(1), F.S.
25 Id.; Wolf and Bolinger, supra note 17.
26 S. 553.80(7)(d), F.S.
27 S. 489.503(14), F.S.
28 Ch. 569, F.S., and s. 386.209, F.S.
29 S. 790.33(1), F.S.
30 S. 218.077, F.S.
31 S. 500.90, F.S.
32 S. 509.032, F.S.
33 S. 403.7033, F.S.
34 Supra note 25.
35 S. 166.221, F.S.
36 Ch. 205, F.S.
37 S. 166.222, F.S.
38 S. 381.00791, F.S.
39 S. 480.052, F.S.
40 S. 402.306, F.S
41 S. 125.01(1)(n), F.S.
42 S. 125.01(1)(k), F.S.
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and confirmed by the Senate. The CILB meets to approve or deny applications for licensure, review
disciplinary cases, and conduct informal hearings relating to discipline.43
"Certified contractors" are individuals who pass the state competency examination and obtain a
certificate of competency issued by DBPR. Certified contractors are able to obtain a certificate of
competency for a specific license category and are permitted to practice in that category in any
jurisdiction in the state.44
“Certified specialty contractors” are contractors whose scope of work is limited to a particular phase of
construction, such as drywall or demolition. Certified specialty contractor licenses are created by the
CILB through rulemaking. Certified specialty contractors are permitted to practice in any jurisdiction in
the state.
“Registered contractors” are individuals that have taken and passed a local competency examination
and can practice the specific category of contracting for which he or she is approved, only in the local
jurisdiction for which the license is issued.45
The CILB licenses the following types of contractors:46
Statutory Licenses Specialty Licenses
Air Conditioning- Classes A, B, and C Drywall
Building Demolition
General Gas Line
Internal Pollutant Storage Tank Lining Glass and Glazing
Applicator Industrial Facilities
Mechanical Irrigation
Plumbing Marine
Pollutant Storage Systems Residential Pool/Spa Servicing
Pool/Spa- Classes A, B, and C Solar Water Heating
Precision Tank Tester Structure
Residential Swimming Pool Decking
Roofing Swimming Pool Excavation
Sheet Metal Swimming Pool Finishes
Solar Swimming Pool Layout
Underground Excavation Swimming Pool Piping
Swimming Pool Structural
Swimming Pool Trim
Tower
Current law provides that local jurisdictions may approve or deny applications for licensure as a
registered contractor, review disciplinary cases, and conduct informal hearings relating to discipline of
registered contractors licensed in their jurisdiction.47 Local jurisdictions are not barred from issuing and
requiring construction licenses that are outside the scope of practice for a certified contractor or
certified specialty contractor, such as painting and fence erection licenses. Local governments may
only collect licensing fees that cover the cost of regulation.48
Locally registered contractors that are required to hold a contracting license to practice their profession
in accordance with state law must register with DBPR after obtaining a local license. However, persons
43 S. 489.107, F.S.
44 S. 489.105, F.S.
45 S. 489.103, F.S.
46 S. 489.105(a)-(q), F.S.; Rr. 61G4-15.015-040, F.A.C.