HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 395 Protection of Historical Monuments and Memorials
SPONSOR(S): State Affairs Committee, Black, Barnaby, and others
TIED BILLS: IDEN./SIM. BILLS: SB 1122
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) State Affairs Committee 14 Y, 6 N, As CS Villa Williamson
2) Appropriations Committee
3) Judiciary Committee
SUMMARY ANALYSIS
The Division of Historical Resources (Division) within the Department of State is charged with protecting and
preserving Florida’s historic sites and properties and the Florida Historical Commission (Commission) aids and
advises the Division. The Department of Veterans’ Affairs (FDVA) is tasked with serving the state’s veteran
population.
A local government may not exercise authority in an area preempted by the state. To expressly preempt a
subject area, the Legislature must use clear statutory language stating its intention to do so.
The bill creates the “Historic Florida Monuments and Memorials Protection Act” and specifies the Legislature’s
intent to protect monuments and memorials from removal, damage, or destruction by preempting local
government action.
The bill declares that the state occupies the whole field of removal, damage, or destruction of historic Florida
monuments or memorials (monuments or memorials) to the exclusion of any existing or future local
government ordinance, regulation, or rule, or any action by an elected or appointed local government official.
The bill invalidates any local government measure that impinges on the Legislature’s exclusive authority
relating to monuments or memorials and requires the courts to issue a permanent injunction prohibiting the
local government from enforcing such measure. An elected or appointed local government official that
knowingly and willfully enacts or enforces such measure is subject to a $1,000 fine. Public funds may not be
used to defend or reimburse the local official.
The bill provides standing to bring a civil action to interested groups and individuals that helped construct,
design, or regularly use the monument or memorial. The group or individual may be awarded actual damages,
capped at $100,000, and reasonable attorney fees and costs, for violations of the act.
The bill requires a local government that unlawfully damages, removes, or destroys a monument or memorial
to return it to its original condition or location within three years. If the local government cannot afford to do so,
the state must restore or relocate such monument or memorial and DOS must withhold from the local
government certain funds until the local government reimburses the state for the cost of restoring or relocating
the monument or memorial.
The bill authorizes a local government to temporarily remove and relocate a monument or memorial in certain
instances and requires the local government to provide certain written notifications to the Division.
The bill will likely have an indeterminate fiscal impact on the state and appears to have no fiscal impact on
local governments unless they act in violation of the bill’s provisions. See Fiscal Analysis.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida Historical Resources Act
The Florida Historical Resources Act (Resources Act)1 was established to preserve archaeological sites
and objects of antiquity for the public benefit.2 The Resources Act recognizes Florida’s historic
properties as an important legacy to be cherished and preserved for current and future generations.
Accordingly, it is Florida’s policy to lead, assist, administer, and encourage public entities and private
citizens to preserve the state’s historic environment and resources. 3
Department of State
The Department of State (DOS) is comprised of six divisions: Elections, Historical Resources,
Corporations, Library and Information Services, Arts and Culture, and Administration. 4 The head of
DOS is the Secretary of State (Secretary). The Secretary is appointed by and serves at the pleasure of
the Governor, and is confirmed by the Senate.5
Division of Historical Resources
The Division of Historical Resources (Division), one of the six divisions established within DOS,6 is
charged with encouraging identification, evaluation, protection, preservation, collection, conservation,
and interpretation of information about Florida’s historic sites and properties or objects related to
Florida’s history and culture.7 Some of the Division’s responsibilities include:
 Developing a comprehensive statewide historic preservation plan.
 Directing and conducting a comprehensive statewide survey, and maintaining an inventory, of
historic resources.
 Ensuring that historic resources are duly considered at all levels of planning and development.
 Providing public information, education, and technical assistance concerning historic
preservation programs.8
The Division is comprised of the Bureau of Historic Preservation,9 Bureau of Historical Museums,10 and
Bureau of Archaeological Research.11,12
Florida Historical Commission
The Florida Historical Commission (Commission) is established within DOS to serve in an advisory
capacity to the director of the Division and engages the public in the preservation and safeguarding of
Florida’s historic and archaeological sites and properties. 13 The Commission is composed of 11
1 Sections 267.011-267.22, F.S., are known as the Florida Historical Resources Act. See s. 267.011, F.S.
2 Section 267.14, F.S.
3 See s. 267.061(1)(a), F.S.
4 Section 20.10(2), F.S.
5
Section 20.10(1), F.S.
6 Section 20.10(2)(b), F.S.
7 See s. 267.031, F.S.
8 Section 267.031(5)(a), (b), (d), and (f), F.S.
9 The Bureau of Historic Preservation engages in historic preservation initiatives with the goal of identifying, evaluating, preserving, and
interpreting the historical and cultural resources within the state.
10 The Bureau of Historical Museums is comprised of designated museums that interpret Florida history for the public through diverse
means, including object-based exhibitions, living history interactions, and guided tours.
11 The Bureau of Archeological Research oversees the state’s archaeology program, including underwater sites such as shipwrecks
and pre-Columbian sites that are among some of the oldest human sites in the world.
12 Florida Department of State, Florida Division of Historical Resources / Ab out, available at https://dos.fl.gov/historical/about/ (last
visited January 23, 2024).
13 Section 267.0612, F.S.
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 members with seven appointed by the Governor in consultation with the Secretary, two appointed by
the President of the Senate, and two appointed by the Speaker of the House of Representatives.
The Commission’s membership must include a licensed architect with historic preservation and
architectural history expertise, a professional American historian, an architectural historian, a prehistoric
archaeologist, and an historic archaeologist.14
The Commission’s duties include providing assistance, advice, and recommendations to the Division in
the following areas:
 Establishing priorities for the identification, acquisition, protection, and preservation of historic
and archaeological sites and properties.
 Formulating criteria to assess the significance of historic and archaeological sites.
 Evaluating proposals for historic preservation grants administered by the Division.
 Conducting an active outreach program to promote public understanding and engagement in
the preservation of the state's historic and archaeological sites and properties.
 Identifying and expressing public goals for historic preservation and gathering public ideas
necessary for the formulation of alternative policies.
 Recommending rules related to the historic preservation programs administered by the Division.
 Protecting and preserving Florida’s historic and archaeological sites and properties. 15
Florida Historical Marker Program
The Florida Historical Marker Program is designed to raise public awareness of Florida’s cultural
history, encourage the preservation of historical resources, promote a sense of community among state
citizens, and enhance the enjoyment and edification of tourists.16 Markers may be placed on public
property and on private property with permission.17 These markers narrate the stories of the people and
places instrumental in shaping Florida, by identifying the churches, schools, archaeological sites,
battlefields, homes, highways, historic trails, and anniversaries that are significant to Florida’s history
and culture.18
The Division is responsible for the administration of all aspects of the Florida Historic Marker Program .
This includes managing the application process; making selections and designations of properties,
persons, or events to be marked; and handling the placement and maintenance of the markers.19
Currently, there are approximately 1,200 markers throughout the state.20
Memorials, Museums, and Arts and Culture
The Florida Arts and Culture Act21 (Culture Act) recognizes the rich cultural resources within the state
and is intended to provide state support for, and garner national and international recognition of, the
efforts, works, and performances of Florida artists, agencies, museums, and nonprofits. 22 The Culture
Act designates the Secretary of State as Florida’s chief cultural officer, and creates the Division of State
Arts and Culture to administer state and federal arts funding, award grants, and provide guidance on
the acquisition and display of fine arts to individuals, groups, organizations, and agencies. 23 In addition,
the Division of State Arts and Culture sponsors and promotes performances and exhibits, organizes
cultural programs and exchanges, and accepts funding to further its objectives.24
14
Section 267.0612(1)(a), F.S.
15 Section 267.0612(6) and (7), F.S.
16 Section 267.074, F.S.
17 Section 267.074(4)(a), F.S.
18 Florida Department of State, Florida Division of Historical Resources, Historical Markers, available at
https://dos.fl.gov/historical/preservation/historical-markers/ (last visited January 23, 2024); see also s. 267.074(2), F.S.
19 Rule 1A-48.003(1), F.A.C.; see also s. 267.074, F.S.
20 See Florida Department of State, Florida Historical Marker List, available at https://apps.flheritage.com/markers/ (last visited January
23, 2024).
21 Sections 265.281-265.703, F.S., are known as the “Florida Arts and Culture Act.” See, s. 265.281, F.S.
22 Section 265.282, F.S.
23 Section 265.284, F.S.
24 Id.
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 Florida Department of Veterans’ Affairs
The Florida Department of Veterans’ Affairs (FDVA) is the constitutionally chartered25 state veterans’
affairs department. FDVA is required to aid all former, present, and future members of the Armed
Forces of the United States and their spouses and dependents in certain instances. 26 FVDA is headed
by the Governor and Cabinet.27 An executive director is appointed by the Governor subject to a majority
vote of the Governor and Cabinet, with the Governor on the prevailing side, and subject to Senate
confirmation.28
Criminal Penalty for Destruction of a Memorial
Willfully and maliciously destroying or demolishing any memorial or historic property,29 or willfully and
maliciously pulling down a memorial or historic property, unless authorized by the owner of the
memorial or the historic property,30 is punishable as a second-degree felony.31 If convicted, the
perpetrator must be ordered to pay restitution, including the full cost of repair or replacement of the
memorial or historic property.32
The term “memorial” means a plaque, statue, marker, flag, banner, cenotaph, religious symbol,
painting, seal, tombstone, structure name, or display that is constructed and located with the intent of
being permanently displayed or perpetually maintained; is dedicated to a historical person, an entity, an
event, or a series of events; and honors or recounts the military service of any past or present United
States Armed Forces military personnel, or the past or present public service of a resident of the
geographical area comprising the state or the United States. The term includes, but is not limited to, the
Florida Women’s Hall of Fame, Florida Medal of Honor Wall, Florida Veterans’ Hall of Fame, POW-MIA
Chair of Honor Memorial, Florida Veterans’ Walk of Honor and Florida Veterans’ Memorial Garden,
Florida Law Enforcement Officers’ Hall of Fame, Florida Holocaust Memorial, Florida Slavery Memorial,
and any other memorial located within the Capitol Complex. 33
Civil Action
The State Constitution provides that “the courts shall be open to every person for redress of any injury,
and justice shall be administered without sale, denial or delay.” 34 In order to bring a civil action, the
claimant must be the real party in interest or be expressly authorized by statute to bring the claim on
behalf of the real party in interest.35 Generally, the aggrieved party can sue for actual damages
incurred; however, there are situations where punitive damages or other remedies may be available
depending on the nature of the case and applicable laws. 36 Actual damages are damages that repay
actual losses. Punitive damages are damages in addition to actual damages and are intended to punish
and thereby deter blameworthy conduct.37
Attorney Fees and Costs
In Florida, a party generally may recover attorney fees only if authorized by statute or agreement of the
parties. This is known as the “American Rule.” 38 To establish the appropriate award of attorney fees,
the Court is required to compute the lodestar.39 The lodestar figure is determined by multiplying the
hours reasonably spent on a case by the reasonable hourly rate for the services provided. This amount
25 Article IV, s. 11, FLA. C ONST.
26 Section 292.05(1), F.S.
27 Article IV, s. 11, FLA. C ONST. See also s. 20.37(1), F.S.
28
Section 20.37(1), F.S.
29 “Historic property” means any building, structure, site, or object that has been officially designated as a historic building, historic
structure, historic site, or historic object through a federal, state, or local designation program. Section 806.135(1) (a), F.S.
30 Section 806.135(2), F.S.
31 A second-degree felony is punishable by up to 15 years imprisonment and a $10,000 fine. Sections 775.082 and 755.083, F.S.
32 Section 806.135(3), F.S.
33 Section 806.135(1)(b), F.S.; see also ch. 265, F.S.
34 Article I, s. 21, FLA. C ONST.
35 Fla. R. Civ. P. 1.210(a).
36 See s. 768.72, F.S.
37 See “Punitive Damages,” Black’s Law Dictionary (11 th ed. 2019).
38 Dade County v. Peña, 664 So. 2d 959 (Fla. 1995); Reiterer v. Monteil, 98 So. 3d 586 (Fla. 2d DCA 2012).
39 Section 57.104(2), F.S. See also Tru Mob ility, Inc., v. Briggs Auto Group, Inc., 2023 WL 4930277 (U.S. D.C. D. Kan. 2023).
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 may then be adjusted based on various factors, such as the complexity of the case or the level of
success achieved.40
In addition, the prevailing party is entitled to an award of litigation costs 41 and other specified expenses,
including expenses for posting and maintaining bonds, court reporter fees, taxes on legal services, if
applicable, and expert witness fees under certain circumstances. 42
Local Government Powers
The Florida Constitution grants counties and municipalities broad “home rule” authority that did not exist
prior to the ratification of the 1968 Constitution.43 Non-charter county governments may exercise those
powers of self-government that are provided by general or special law.44 Counties operating under a
county charter have all powers of self-government not inconsistent with general law or special law
approved by the vote of the electors.45 Municipalities have governmental, corporate, and proprietary
powers that enable them to conduct municipal government, perform municipal functions and provide
municipal services, and exercise any power for municipal purposes except when expressly prohibited
by law.46 A local government enactment may be inconsistent with state law if the:
 State Constitution preempts the subject area;
 Legislature preempts the subject area; or
 Local enactment conflicts with a state statute.
Preemption
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred. 47 To expressly preempt a