HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 839 Express Preemption of Fuel Retailers and Related Transportation
Infrastructure
SPONSOR(S): Local Administration & Veterans Affairs Subcommittee; Tourism, Infrastructure & Energy
Subcommittee; Fabricio
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 856
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Tourism, Infrastructure & Energy Subcommittee 12 Y, 6 N, As CS Willson Keating
2) Local Administration & Veterans Affairs 15 Y, 0 N, As CS Renner Miller
Subcommittee
3) Commerce Committee 17 Y, 3 N Willson Hamon
SUMMARY ANALYSIS
The Florida Constitution grants county and municipal governments broad home rule authority. Specifically,
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
those governmental, corporate, and proprietary powers enabling them to conduct municipal government,
perform their functions and provide services, and exercise any power for municipal purposes, except as
otherwise provided by law. In contrast, special districts have only those powers expressly authorized by
general or special law. County and municipal governments have broad authority to legislate on any matter that
is not inconsistent with federal or state law. A local government enactment may be inconsistent with state law if
(1) the Legislature has preempted a particular subject area or (2) the local enactment conflicts with a state
statute. Where state preemption applies it precludes a local government from exercising authority in that
particular area.
The bill expressly preempts a municipality, county, special district, or political subdivision from prohibiting the
siting, development, or redevelopment of a fuel retailer or the necessary related transportation infrastructure
within that specific local government’s entire jurisdiction. The bill further preempts any action by a municipality,
county, special district, or political subdivision resulting in a de facto jurisdiction-wide prohibition against a fuel
retailer or the necessary related transportation infrastructure. The bill preempts mandating any required
infrastructure on a fuel retailer, including electric vehicle charging stations. The bill does not preempt a
municipality, county, special district, or political subdivision from adopting and implementing ordinances,
regulations, policies, or resolutions on the siting, development, or redevelopment of fuel retailers or necessary
related transportation infrastructure that are consistent with other allowable uses and general law.
The bill defines the term “fuel retailer” as a fuel station or retail site selling fuel to power vehicles. "Related
transportation energy infrastructure" is defined as “storage tanks, pipelines, or any related equipment that is
necessary to deliver fuel to a fuel retailer or dispense fuel at a fuel retailer.”
The bill does not impact state government revenues or expenditures. The fiscal impact of the bill on local
government is indeterminate.
The bill takes effect upon becoming law.
This document 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:
Present Situation
Local Government Authority
The Florida Constitution grants county and municipal governments broad home rule authority.
Specifically, 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.1 Non-charter county
governments may exercise those powers of self-government that are provided by general or special
law.2 Likewise, municipalities3 have those governmental, corporate, and proprietary powers enabling
them to conduct municipal government, perform their functions and 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.5 Special districts are created by general law, special act,
local ordinance, or by rule of the Governor and Cabinet.6 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.7
As of March 23, 2021, there are 627 active dependent8 special districts and 1,163 active independent
special districts in Florida.9 Community development districts are the most frequently created form of
independent special district. Other common special districts in Florida include water control districts, fire
control districts, and community redevelopment agencies.10 Currently, one special electric district and
four special natural gas districts exist in Florida.11
State Energy Policy
The comprehensive energy policy of the state includes a range of factors for statewide decisions,
including the statewide promotion of effective energy use, inclusion of energy considerations in all
state, regional, and local planning, considering the energy needs of all sectors of Florida’s economy,
and considering the social, economic, and environmental impacts of energy-related activities.12 The
further intent of the Legislature includes promoting efficient, effective, and economical management of
1 Art. VIII, s. 1(g), Fla. Const.
2 Art. VIII, s. 1(f), 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 See Halifax Hospital Medical Center v. State of Fla., et al., 278 So. 3d 545, 547 (Fla. 2019).
6 See ss. 189.02(1), 189.031(3), and 190.005(1), F.S. See, generally, s. 189.012(6), F.S.
7 2020-2022 Local Gov’t Formation Manual, p. 62,
https://myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3117&Session=2021&Doc
umentType=General+Publications&FileName=2021-2022+Local+Government+Formation+Manual.pdf (last visited Mar. 15, 2021).
8 Dependent special districts are under some control by a single county or municipality. S. 189.012(2), F.S. An independent special
district is any district that is not a dependent district. S. 189.012(3), F.S. A special district that includes more than one county is
independent unless it lies wholly within the boundaries of a single municipality.
9 Florida Department of Economic Opportunity, Division of Community Development, Special District Accountability Program, Official
List of Special Districts Online, State Totals, http://dca.deo.myflorida.com/fhcd/sdip/OfficialListdeo/report.cfm (last visited Mar. 23,
2021).
10 Florida Department of Economic Opportunity, Division of Community Development, Special District Accountability Program, Official
List of Special Districts Online, Special District Function Totals at http://www.floridajobs.org/community-planning-and-
development/assistance-for-governments-and-organizations/special-district-accountability-program (last visited Feb. 28, 2021).
11 See PSC, Facts & Figures of the Florida Utility Industry
http://www.psc.state.fl.us/Files/PDF/Publications/Reports/General/Factsandfigures/April%202020.pdf (last visited Feb. 28, 2021).
12 S. 377.601(2), F.S.
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energy issues and centralizing energy coordination responsibilities.13 Under this general law, local
governments participate in the development and implementation of statewide energy policy.
Authority Related to Energy Infrastructure
As provided in general law, certain local governments may:
Prepare and enforce comprehensive plans for the development of the county.14
Establish, coordinate, and enforce zoning and such business regulations as are necessary for
the protection of the public.15
Provide and regulate roads, rights-of-way, and related transportation facilities.16
Enforce the Florida Building Code and adopt and enforce local technical amendments thereto.17
Adopt, revise, and amend, from time to time, appropriate ordinances, rules, and regulations
reasonably necessary to maintain air quality standards established pursuant to state and federal
law, including the federal Clean Air Act.18
Issue development permits and orders.19
Code enforcement.20
Florida Department of Agriculture and Consumer Services
The Florida Department of Agriculture and Consumer Services (FDACS) is responsible for the
administration of a number of programs relating to energy infrastructure, including the Renewable
Energy and Energy-Efficient Technologies Grants Program,21 the Energy Efficiency and Conservation
Clearinghouse,22 the Florida Green Government Grants Act,23 the Natural Gas Fuel Fleet Vehicle
Rebate Program,24 as well as statutory authorization to allocate federal energy conservation bonds25
and to post information on its website relating to alternative fueling stations or electric vehicle charging
stations that are available for public use.26
Preemption
Local governments have broad authority to legislate on any matter that is not inconsistent with federal
or state law. A local government enactment may be inconsistent with state law if (1) the Legislature
"has preempted a particular subject area" or (2) the local enactment conflicts with a state statute.
State preemption precludes a local government from exercising authority in that particular area.27
13 S. 377.703(1), F.S.
14 S. 125.01(1)(g), F.S.
15 S. 125.01(1)(h), F.S.
16 S. 125.01(1)(m), F.S.
17 Ss. 125.01(1)(bb), 166.0415, 553.80, F.S.
18 S. 125.275, F.S.
19 Ss. 125.022 and 166.033, F.S.
20 S. 166.0415, F.S.
21 Section 377.804, F.S., is established within FDACS “to provide renewable energy matching grants for demonstration,
commercialization, research, and development projects relating to renewable energy technologies and innovative technologies that
significantly increase energy efficiency for vehicles and commercial buildings.”
22 Section 377.805, F.S., states that “The Office of Energy within the Department of Agriculture and Consumer Services, in consultation
with the Public Service Commission, the Florida Building Commission, and the Florida Energy Systems Consortium, shall develop a
clearinghouse of information regarding cost savings associated with various energy efficiency and conservation measures.”
23 Section 377.808, F.S., directs FDACS to “use funds specifically appropriated to award grants under this section to assist local
governments, including municipalities, counties, and school districts, in the development and implementation of programs that achieve
green standards. Green standards shall be determined by the department and shall provide for cost-efficient solutions, reducing
greenhouse gas emissions, improving quality of life, and strengthening the state’s economy.”
24 Section 377.810, F.S., establishes the program within FDACS “to help reduce transportation costs in this state and encourage freight
mobility investments that contribute to the economic growth of the state.”
25 S. 377.816, F.S.
26 S. 377.815, F.S.
27 Wolf, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009),
https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-preemption-and-conflict-analysis/ (last visited Mar.
16, 2021).
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Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred.28 Express preemption of a field by the
Legislature must be accomplished by clear language stating that intent.29 In cases where the
Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the
Legislature intended.30 In cases determining the validity of ordinances enacted in the face of state
preemption, the effect has been to find such ordinances null and void.31
Effect of the Bill
The bill creates s. 377.707, F.S., expressly preempting to the state specific aspects of regulating fuel
retailers and related transportation infrastructure.
The bill defines the term “fuel retailer” as a fuel station or retail site selling fuel to power vehicles.
"Related transportation energy infrastructure" is defined as “storage tanks, pipelines, or any related
equipment that is necessary to deliver fuel to a fuel retailer or dispense fuel at a fuel retailer.”
Except as authorized by general law, the bill prohibits a municipality, county, special district, or political
subdivision from prohibiting the redevelopment of a fuel retailer or the necessary related transportation
infrastructure within that specific local government’s entire jurisdiction. The bill further preempts any
action by resulting in a de facto jurisdiction-wide prohibition against a fuel retailer or the necessary
related transportation infrastructure. The bill preempts mandating any required infrastructure on a fuel
retailer, including electric vehicle charging stations. The bill does not preempt a municipality, county,
special district, or political subdivision from adopting and implementing ordinances, regulations,
policies, or resolutions on the siting, development, or redevelopment of fuel retailers or necessary
related transportation infrastructure that are consistent with other allowable uses and general law.
B. SECTION DIRECTORY:
Section 1 Creates s. 377.707, F.S.; providing a definition; preempting regulation of fuel retailers and
related transportation infrastructure to the state; prohibiting a local government from
regulating fuel retailers and related transportation infrastructure; providing an exception;
providing construction.
Section 2 Provides for an effective date upon becoming law.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
Indeterminate.
2. Expenditures:
28 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).
29 Mulligan, 934 So. 2d at 1243.
30 Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
31 See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So.2d 504 (Fla. 3d DCA 2002).
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Indeterminate.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
Indeterminate.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
The bill neither authorizes nor requires administrative rulemaking by executive branch agencies.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
On March 5, 2021, the Tourism, Infrastructure & Energy Subcommittee adopted a proposed committee
substitute (PCS) and reported the bill favorably as a committee substitute. The committee substitute
differs from HB 839 in the following ways:
Preempts the regulation of transportation energy infrastructure;
Revises the definition of “transportation energy infrastructure” to include certain fuels used for
transportation;
Provides the preemption does not apply to local ordinances regulating underground petroleum
storage system construction, operation, and maintenance;
Preempts local government comprehensive plans, land us