The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/SB 170
INTRODUCER: Rules Committee, Community Affairs Committee and Senators Trumbull and Perry
SUBJECT: Local Ordinances
DATE: February 23, 2023 REVISED: 2/24/23
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Hackett Ryon CA Fav/CS
2. Hackett Twogood RC Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
CS/CS/SB 170 pertains to the passage and challenging of local ordinances. It adds to the process
for local governments passing ordinances and gives certain additional rights to those challenging
The bill requires counties and cities to produce a “business impact estimate” prior to passing an
ordinance, with exceptions. The estimate must be published on the local government’s website
and include certain information, such as the proposed ordinance’s purpose, estimated economic
impact on businesses, and compliance costs.
Additionally, the bill imposes certain conditions on lawsuits brought by any party to challenge
the legal validity of local ordinances as preempted by state law, arbitrary, or unreasonable. In
these cases, the bill:
Requires the local government to suspend enforcement of an ordinance of such legal
challenge, under certain circumstances.
Requires the court to give those cases in which enforcement of the ordinance is suspended
priority over other pending cases and render a preliminary or final decision as expeditiously
Provides that a court may award up to $50,000 in attorney fees to a prevailing plaintiff who
successfully challenges an ordinance as arbitrary or unreasonable.
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The bill also provides that properly noticed consideration of a proposed ordinance may be
continued to a subsequent meeting under certain circumstances without further publication,
mailing, or posted notice.
The bill contains a finding of important state interest.
The bill takes effect October 1, 2023, except as otherwise provided.
II. Present Situation:
The governing body of a county or municipality has broad legislative powers to enact
ordinances, local laws, to perform governmental functions and exercise power to promote the
health, welfare, safety, and quality of life of a local government’s residents. Ordinances address a
wide variety of local issues, from government structure and zoning laws to speed limits and noise
ordinances. Procedures for passing local ordinances are prescribed by the Legislature and differ
only slightly between counties and municipalities.
Procedures for Enacting Ordinances
A board of county commissioners must notice its intent to consider an ordinance or amendment
to an ordinance 10 days before the meeting at which the ordinance will be considered. The
notice, placed in a newspaper of general circulation, should include the date, time, and place of
the meeting, the proposed ordinance title, and instructions for how to view the language. The
board may then vote to pass the ordinance at the meeting, and upon passage, must send a
certified copy of the ordinance to the Florida Department of State (DOS).1 County ordinances
take effect upon filing with the DOS, unless otherwise prescribed in the ordinance.2
Similarly, municipalities must notice intent to consider an ordinance 10 days before adoption.
However, municipalities must also read the ordinance by title or in full on at least 2 separate days
before adoption by vote.3 An ordinance passed by a municipality becomes effective 10 days after
passage, unless otherwise prescribed in the ordinance.4
A board of county commissioners may adopt an emergency ordinance that bypasses the notice
requirements if the governing body declares that an emergency exists requiring the immediate
enactment of the ordinance and the ordinance is approved by a four-fifths vote of the
membership.5 A municipality may bypass reading and notice requirements to pass an emergency
ordinance by a two-thirds vote of the governing body.6 An emergency ordinance may not be used
to adopt zoning and land use changes.7
Section 125.66(2), F.S.
Section 166.041(3)(a), F.S.
Section 166.041(4), F.S.
Section 125.66(3), F.S.
Section 166.041(3)(b), F.S.
Supra notes 5 and 6.
BILL: CS/CS/SB 170 Page 3
Local Government Authority
The Florida Constitution grants local governments broad authority to take actions furthering
citizens’ health, welfare, safety, and quality of life. This “home rule” authority includes
legislative powers to enact local laws. Specifically, non-charter county governments may
exercise those powers of self-government that are provided by general or special law.8 Those
counties operating under a county charter have all powers of local self-government not
inconsistent with general law or special law approved by the vote of the electors.9 Likewise,
municipalities have those governmental, corporate, and proprietary powers that enable them to
conduct municipal government, perform their functions and provide municipal services, and
exercise any power for municipal purposes, except as otherwise provided by law.10
This authority, under the umbrella of governmental or municipal purpose, extends broadly to any
ordinance necessary to promote the health, welfare, safety, and quality of life of a local
government’s residents.11 Local governments’ authority has been liberally construed when
reviewed by courts. For example, courts have found the following to meet the standards for what
constitutes a “municipal purpose,” and therefore were valid local government actions:
Acquisition and maintenance of a golf course;12
Sale of souvenir photographs;13 and
Prohibiting the rental of motorized scooters.14
In general, this broad home rule authority is limited by two guideposts: preemption, where a
higher level of government such as the State has already legislated on a topic, and standards of
reasonableness. Local governments may not pass ordinances which are apparently unreasonable
or unreasonable, despite their wide-ranging powers.15 Anyone affected by an ordinance may
challenge its validity in court by filing a civil action against the local government.16
An ordinance can be declared invalid on the grounds that it is inconsistent with the State
Constitution or Florida Statutes. Inconsistency may be found where a local ordinance is either
preempted by or in conflict with the State Constitution or Florida Statutes.17 Preemption means
that a local government is precluded from exercising authority in a particular area, while conflict
exists where a municipality has the right to act but such action frustrates the purpose of the state
FLA. CONST. art. VIII, s. 1(f).
FLA. CONST. art. VIII, s. 1(g).
FLA. CONST. art. VIII, s. 2(b). See also s. 166.021(1), F.S.
Art. VIII, § 2(b), Fla. Const.; Section 125.86, F.S.; for municipalities see Quiles v. City of Boynton Beach, 802 So. 2d 397,
398 (Fla. 4th DCA 2001); § 166.021, Fla. Stat.
West v. Town of Lake Placid, 97 Fla. 127, 120 So. 361 (1929).
City of Winter Park v. Montesi, 448 So. 2d 1242 (Fla. 5th DCA 1984).
Classy Cycles, Inc. v. Panama City Beach, 301 So. 3d 1046 (Fla. 1 st DCA 2019).
Dennis v. City of Key West, 381 So. 2d 312 (Fla. 3d DCA 1980).
Hardage v. City of Jacksonville Beach, 399 So. 2d 1077 (Fla. 1 DCA 1981). There are statutory requirements for being
allowed to bring suit in certain cases, such as those based on a technical deficiency in the ordinance, but the cases at issue in
this analysis merely require being affected.
City of Jacksonville v. American Environmental Services Inc., 699 So. 2d 255 (Fla. 1st DCA 1997)
BILL: CS/CS/SB 170 Page 4
regulation.18 Express preemption refers to instances where the Legislature has directly written
into law that the State intends to occupy a field of law, prohibiting local governments from
taking action in that field.19
Implied preemption, however, refers to situations where no express preemption is written into
statute, but the Legislature has regulated a field such that local legislation would present the
danger of conflict with that regulatory scheme.20 In this context, conflict occurs any time a
citizen would necessarily violate one provision in order to comply with the other. Implied
preemption and conflict are necessarily more nuanced and less foreseeable than express
Arbitrary and Unreasonable Ordinances: Presumption of Validity
An ordinance can also be declared invalid on the grounds that it is arbitrary or unreasonable,
meaning that it has no legitimate governmental interest. In legal challenges to local ordinances
based on being arbitrary or unreasonable, the local ordinances are presumed valid by courts
reviewing them, and the burden falls on the challenger to establish the ordinance’s arbitrary or
unreasonable nature.21 Courts apply “rational basis review” to ordinances, simply determining
whether an ordinance is rationally related to a legitimate government interest- if it fails to meet
this test, an ordinance is declared invalid. 22 In these instances, courts have stated that there is no
governmental purpose where there is no apparent benefit, such as protecting the health, welfare,
safety, and quality of life, to the citizens, the benefit appears to apply to non-residents, or the
government has attempted to frustrate the purpose of another governmental entity.23
Given this deference, courts have rarely found that an ordinance entirely lacks governmental, or
municipal purpose. However, in one case, the Florida Supreme Court ruled that a local ordinance
prohibiting the operation of surfboards and skimmers on beaches was unlawfully arbitrary and
unreasonable. In its ruling, the court stated, “[t]he Town of Palm Beach may regulate and control
surfing and skimming in areas subject to its jurisdiction and may prohibit these activities at
certain places along the beach. However, the complete prohibition of this sport from all the
beach area is arbitrary and unreasonable.”24
Attorney Fees for Challenges Based on Express Preemption
Current law provides that in a civil action to challenge the validity of a local ordinance on the
grounds that it is expressly preempted by the State Constitution or by state law, the court must
See, e.g., s. 790.33, F.S. “… the Legislature hereby declares that it is occupying the whole field of regulation of firearms
See, e.g., Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010).
See Panama City Beach Community Redevelopment Agency v. State, 831 So. 2d 662 (Fla. 2002), Orange County v.
Costco Wholesale Corp., 823 So.2d 732 (Fla. 2002)..
Supra note 12 at page 133, 134 “In testing the validity of a statute with reference to the facts and circumstances upon
which it is to operate, the validity of the statute does not depend upon the preponderance of evidentiary considerations; but
the statute stands unless it conclusively appears that there are or can be no conceivable circumstances upon which it can
validly operate or that under no circumstances can it operate or be effective to accomplish the intended purpose, without
violating organic rights.”
See generally supra, notes 13, 14, 15.
Carter v. Town of Palm Beach, 237 So.2d 130 (Fla. 1970).
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assess and award reasonable attorney fees, costs, and damages to the prevailing party, either the
challenger or local government.25 The local government can avoid paying attorney fees, costs,
and damages if after receiving notices that an ordinance is expressly preempted, the governing
body withdraws the proposed ordinance within 30 days.26
The Florida Rules of Judicial Administration govern the ways a judge controls a case in terms of
timing and docketing. Some cases that come before a court are deemed priority cases, either
directly in statute, in rule of procedure, or case law. Every judge has a duty to expedite priority
cases to the extent reasonably possible.27 For these cases judges are tasked with implementing
docket control policies necessary to advance the case and ensure prompt resolution. 28 Docket
control policies include setting deadlines for phases of the case, giving priority to hearings
required to advance the case, and advancing the trial setting. A party in a priority status case may
file a notice of priority status, and has recourse if they believe the case has not been appropriately
advanced on the docket or received priority in scheduling.29
III. Effect of Proposed Changes:
Section 1 amends s. 57.112, F.S., to provide that when an ordinance is successfully challenged in
court as arbitrary or unreasonable, the court may, but is not required to, award up to $50,000 in
attorney fees and costs to the prevailing plaintiff. These fees are not applicable where the
plaintiff prevails on a separate claim regarding the same ordinance, or for fees and costs
associated with litigating over attorney fees. This section applies prospectively to ordinances
adopted on or after October 1, 2023.
Business Impact Estimate
Sections 3 and 6 amend ss. 125.66 and 166.041, F.S., to require counties and cities, respectively,
to produce or have produced a “business impact estimate” prior to passing an ordinance. The
business impact estimate must include the following:
A summary of the proposed ordinance, including a statement of the public purpose to be
served by the proposed ordinance;
An estimate of the direct economic impact of the proposed ordinance on private for-profit
businesses in the county or city, including:
o An estimate of direct compliance costs for businesses;
o Identification of new charges and fees; and
o An estimate of the county’s or city’s regulatory costs.
A good faith estimate of the number of businesses likely impacted; and
Section 57.112, F.S.
Or notices the intent to repeal the ordinance within 30 days and repeals the notice within 30 days thereafter. S. 57.112(3),
Fla. R. Jud. Admin. 2.215(g).
Fla. R. Jud. Admin. 2.545(b).
Fla. R. Jud. Admin. 2.545(c).
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Any additional information deemed useful.
The bill specifies that this requirement is not to be construed to require a county or city to
procure an accountant or other financial consultant in preparing the estimate.
A business impact estimate is not required for the following types of ordinances:
Growth policy, county and municipal planning, and land development regulations under part
II of ch. 163, F.S.;
Building code ordinances under s. 553.73, F.S.;
Fire prevention code ordinances under s. 633.202, F.S;
Ordinances establishing or terminating Community Development Districts under ss. 190.005
and 190.046, F.S.;
Ordinances required to comply with federal or state law or regulation;
Ordinances relating to financial obligations or issuance and refinancing of debt;
Ordinances related to the adoption of county or municipal budgets or budget amendments; or
Ordinances required to implement a contract or agreement, to include federal, state, local, or
private grants and other financial assistance.
Sections 4 and 7 create ss. 125.675 and 166.0411, F.S., to set conditions on lawsuits brought by
any party to challenge local ordinances as preempted by the State Constitution or by state law,
arbitrary, or unreasonable. The bill requires the local government to suspend enforcement of an
ordinance subject to such an action, including appeals, if:
The action was filed with the court no late