HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 1515 Local Ordinances
SPONSOR(S): Brackett
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 170
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Local Administration, Federal Affairs & Special 13 Y, 4 N Roy Darden
Districts Subcommittee
2) Civil Justice Subcommittee 10 Y, 5 N Mawn Jones
3) State Affairs Committee 14 Y, 6 N Roy Williamson
SUMMARY ANALYSIS
Local governments have broad authority to legislate on any matter not inconsistent with federal or state law. If
the Legislature preempts an area of regulation to the state, local governments are prohibited from exercising
authority in that area. If a local government enacts an ordinance on a matter preempted to the state, a person
may file a lawsuit asking the court to declare the ordinance void. A person may also challenge a local
ordinance on the grounds that it is unreasonable; in such a challenge, the court will uphold the ordinance if a
rational relationship exists between the regulation and a legitimate governmental purpose.
Florida law generally authorizes the award of attorney fees and costs to a prevailing party challenging an
ordinance adopted or enforced by a local government that is expressly preempted by the Florida Constitution
or state law. However, attorney fees and costs may not be awarded against a local government if it:
Receives written notice that an ordinance or proposed ordinance is expressly preempted; and
Within 30 days of receiving the notice, withdraws the proposed ordinance; or, in the case of an adopted
ordinance, notices an intent to repeal the ordinance within 30 days of receiving the notice and repeals
the ordinance within 30 days thereafter.
The bill:
Provides that a court may award attorney fees, costs, and damages to a complainant who successfully
challenges a local ordinance on the grounds that the ordinance is arbitrary or unreasonable, unless an
exception applies or the local government cures the issue.
Caps at $50,000 the amount of attorney fees, costs, and damages awardable to a prevailing plaintiff
challenging a local ordinance on the grounds that it is arbitrary or unreasonable and prohibits double
recovery.
Authorizes consideration of an ordinance to continue to a subsequent meeting without need for
additional notice under specified circumstances.
Requires local governments to prepare a “business impact estimate” before adopting certain local
ordinances.
Requires that a challenged local ordinance’s enforcement be suspended in certain situations .
Provides for expedited court review of a challenged ordinance suspended under the bill.
Provides signature requirements and related sanctions for documents filed in a local ordinance
challenge under the bill.
States that the legislature finds that the act fulfills an important state interest.
The bill does not appear to have a fiscal impact on state government, but may have an indeterminate negative
fiscal impact on local governments. The bill provides an effective date of October 1, 2023, except as otherwise
expressly provided.
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:
Present Situation
Ordinances
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 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. 2 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.3 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.
Local governments exercise these powers by adopting ordinances. The adoption or amendment of a
regular ordinance, other than an ordinance making certain changes to zoning, may be considered at
any regular or special meeting of the local governing body. 4 Notice of the proposed ordinance must be
published at least 10 days before the meeting in a newspaper of general circulation in the area; state
the date, time, and location of the meeting, the title of the proposed ordinance, and locations where the
proposed ordinance may be inspected by the public; and advise that interested parties may appear and
speak at the meeting.5 Municipal ordinances must also be read by title or in full on at least two separate
days.6 Ordinances may only encompass a single subject and may not be revised or amended solely by
reference to the title.7
A county may adopt an emergency ordinance that bypasses the notice requirement 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.8 A municipality may adopt an emergency ordinance by two-
thirds vote.9 An emergency ordinance may not be used to adopt zoning changes. 10
Reasonableness
The legislature may not constitutionally delegate to a local government the power to enact an
unreasonable ordinance; thus, a local ordinance must be reasonable and may be challenged on the
grounds of unreasonableness.11 A court determining whether a challenged ordinance is reasonable
applies the “rational basis” review standard, under which the court will uphold the ordinance if it is at
1 Art. VIII, s. 1(f), Fla. Const.
2 Art. VIII, s. 1(g), Fla. Const.
3 Art. VIII, s. 2(b); see also s. 166.021(1), F.S.
4
See ss. 125.66(2)(a) and 166.041, F.S. In addition to general notice requirements, a local government must provide written notice by
mail to all property owners before adopting a zoning change involving less than 10 contiguous acres. Ss. 125.66(4)(a) and
166.041(3)(c)1., F.S. If a zoning change involves 10 or more contiguous acres, the local government must conduct two public hearings,
advertised in a newspaper, before adopting the ordinance. Ss. 125.66(4)(b) and 166.041(3)(c)2., F.S.
5 Historically, local governments have continued considerations of ordinances to subsequent meetings without further published notice;
however, recent litigation has suggested this practice may not be valid. Testa v. Town of Jupiter Island, No. 4D22-432 (Fla. 4th DCA
Feb. 8, 2023).
6 S. 166.041(3)(a), F.S.
7 Ss. 125.67 and 166.041(2), F.S.
8 S. 125.66(3), F.S.
9 S. 166.041(3)(b), F.S.
10 Ss. 125.66(3) and 166.041(3)(b), F.S.
11 State ex rel. Harkow v. McCarthy, 126 Fla. 433 (Fla. 1936); Gates v. City of Sanford, 566 So. 2d 47 (Fla. 5th DCA 1990); Gustafson
v. City of Ocala, 53 So. 2d 658 (Fla. 1951); 12A Fla. Jur. 2d Counties, Etc, § 224.
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least debatable that a rational relationship exists between the regulation and a legitimate governmental
purpose.12 Where such an ordinance’s reasonableness is fairly debatable, a court will not substitute its
judgment for that of the local governing body, “there being a peculiar propriety in permitting inhabitants
of a [jurisdiction] through its proper officials to determine what rules are necessary for their own local
government.”13 The fact that opinions may differ as to a local ordinance’s reasonableness is insufficient
to void the ordinance, even if the policy’s wisdom is debatable and its effects are uncertain.14
Preemption
Florida law recognizes two types of preemption: express and implied. Express preemption requires a
specific legislative statement; it cannot be implied or inferred. 15 To expressly preempt a subject area,
the Legislature must use clear statutory language stating its intention to do so.16 Implied preemption
occurs when the Legislature has demonstrated an intent to preempt an area, though not expressly.
Florida courts find implied preemption when “the legislative scheme is so pervasive as to evidence an
intent to preempt the particular area, and where strong public policy reasons exist for finding such an
area to be preempted by the Legislature.”17
Where state preemption applies, a local government may not exercise authority in that area. 18 Whether
a local government ordinance or other measure violates preemption is ultimately decided by a court. If
a local government improperly enacts an ordinance or other measure on a matter preempted to the
state, a person may challenge the ordinance by filing a lawsuit. A court ruling against the government
may declare the preempted ordinance void.19
Attorney Fees, Costs, and Interest
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.” 20 Attorney fees as a sanction, however, generally may
be levied only where an action was taken primarily for the purpose of causing an unreasonable delay or
a party brings an unsupported claim or defense, such as a claim or defense unsupported by the:
Material facts necessary to establish the claim or defense; or
Application of then-existing law to the material facts.21
Attorney fees as a sanction may not be imposed:
Where a party reasonably presented a claim or defense as a good faith argument for the
extension, modification, or reversal of existing law;
Against the culpable party’s attorney, if the attorney acted in good faith based on his or her
client’s representations as to material fact; or
Against a represented party whose attorney raised an unsupported legal claim or defense.22
12 Martin County v. Section 28 Partnership Ltd., 772 So. 2d 616 (Fla. 4th DCA 2000); City of Miami v. Kayfetz , 92 So. 2d 798 (Fla.
1957); City of Miami Beach v. Lachman, 71 So. 2d 148 (Fla. 1953); Dennis v. City of Key West, 381 So. 2d 1980 (Fla. 3d DCA 1980);
12A Fla. Jur. 2d Counties, Etc, s. 224.
13
Lachman, 71 So. 2d at 152; Kayfetz, 92 So. 2d at 801; Dennis, 381 so. 2d at 314; State v. Sawyer, 346 So. 2d 1071 (Fla. 3d DCA
1977).
14 Silvio Memb reno and Florida Ass’n of Vendors, Inc. v. City of Hialeah , 188 So. 3d 13 (Fla. 3d DCA 2016).
15 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).
16 Mulligan, 934 So. 2d at 1243.
17 Tallahassee Mem. Reg. Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc., 681 So. 2d 826, 831 (Fla. 1st DCA 1996).
18 D’Agastino v. City of Miami, 220 So. 3d 410 (Fla. 2017); Judge James R. Wolf and Sarah Harley Bolinder, The Effectiveness of
Home Rule: A Preemptions and Conflict Analysis, 83 Fla. B.J. 92 (June 2009).
19 See, e.g., Nat’l Rifle Ass’n of Am., Inc. v. City of S. Miami, 812 So. 2d 504 (Fla. 3d DCA 2002).
20 Dade County v. Peña, 664 So. 2d 959, 960 (Fla. 1995); Reiterer v. Monteil, 98 So. 3d 586, 587 (Fla. 2d DCA 2012).
21 S. 57.105, F.S.
22 S. 57.105(3), F.S.
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A party may appeal a court’s ruling on sanctions, and the appellate court must review the award or
denial of sanctions under the abuse of discretion standard, meaning that the appellate court must
uphold the lower court’s decision unless it was “arbitrary, fanciful, or unreasonable.”23
Under Florida law, the prevailing party in any civil action is entitled to an award of litigation costs,24
including those for which account is kept by the clerk of the court 25 and other specified expenses such
as amounts for posting and maintaining bonds, court reporter fees, taxes on legal services, if
applicable, and expert witness fees under certain conditions.26
The holder of a judgment for money damages is entitled to interest on the entire judgment amount at
the specified statutory rate.27 If the judgment has the practical effect of determining the specific amount
of damages on the claim, or “liquidating” the claim, as of a date before the judgment, the plaintiff is
entitled to prejudgment interest at the applicable statutory rate from the date of that loss. 28 The
prejudgment interest amount is added to the remaining amounts awarded by the court for damages in
the judgment.
Additionally, Florida law provides that the prevailing party in an action challenging a local government
ordinance expressly preempted by the Florida Constitution or state law is entitled to attorney fees and
costs.29 For the purpose of this provision, costs are defined as all reasonable and necessary fees and
costs incurred for preparation, motions, hearings, trials, and appeals. 30 However, attorney fees and
costs may not be awarded against a local government if it:
Receives written notice that an ordinance or proposed ordinance is expressly preempted; and
Within 30 days of receiving the notice, withdraws the proposed ordinance; or, in the case of an
adopted ordinance, notices an intent to repeal the ordinance within 30 days of receiving the
notice and repeals the ordinance within 30 days thereafter. 31
The award of attorney fees under this provision is supplemental to other sanctions or remedies
available under law or court rule and does not apply to ordinances relating to growth management,
building codes, fire prevention codes, or biosolids.32
Economic Analysis of Business Impacts
Some governmental entities conduct economic analyses of business impacts. For example, before
adopting an administrative rule, state agencies may prepare a statement of estimated regulatory costs
(SERC), estimating the potential impact of a proposed rule on the public, particularly the potential costs
to the public of complying with the rule as well as to the agency and other governmental entities to
implement the rule.33 Agencies are encouraged to prepare a SERC before adopting, amending, or
repealing any rule.34 However, a SERC is required if the proposed rule will have an adverse impact on
small businesses or increase regulatory costs by more than $200,000 in the aggregate within one year
after implementation of the rule.35 If the agency revises a rule before adoption and the revision
increases the regulatory costs of the rule, the agency must revise the SERC to reflect that alteration. 36
23 MC Lib erty Express, Inc. v. All Points Servs., Inc., 252 So. 3d 397 (3d DCA 2018) (quoting Canakaris v. Canakaris, 382 So. 2d 1197,
1203 (Fla. 1980)); Ferere v. Shure, 65 So. 3d 1141 (Fla. 4th DCA 2011).
24 S. 57.041, F.S.
25 S. 57.021, F.S.
26
S. 57.071, F.S.
27 S. 55.03, F.S. The Chief Financial Officer determines the applicable interest rate on a quarterly ba sis. S. 55.03(1), F.S. The initial
interest rate for a judgment is that in effect at the time the judgment is awarded. The judgment interest rate is then adjust ed annually on
January 1 to the rate in effect on that date. S. 5.03(3), F.S.
28 Argonaut Ins. Co. v. May Plumb ing Company, 474 So. 2d 212, 215 (Fla. 1985).
29 S. 57.112(2), F.S.
30 S. 57.112(1), F.S.
31 S. 57.112(3), F.S.
32 S. 57.112(4)-(5), F.S.
33 S. 120.541(2), F.S.
34 S. 120.54(3)(b)1., F.S.
35 Id.
36 S. 120.541(1)(c), F.S.
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A SERC must include:
A good faith estimate of the number of people and entities affected by the proposed rule;
A good faith estimate of the cost to the agency and other governmental entities to implement the
proposed rule;
A good faith estimate of transactional costs likely to be incurred by people, entities, and
governmental agencies for compliance; and
An analysis of the proposed rule’s impact on small businesses, counties, and municipalities. 37
The SERC must also include an economic analysis on the likelihood that the proposed rule will have an
adverse impact in excess of $1 million within the first five years of implementation on:
Economic growth, private-sector job creation or employment, or private-sector investment;
Business competitiveness, productivity, or innovation; or
Regulatory costs, including any transactional costs. 38
If the economic analysis results in an adverse impact or regulatory costs in excess of $1 million within
five years after implementation of the rule, then the rule must be ratified by the Legislature to take
effect.39
An agency’s failure to prepare a SERC may be raised in a Division of Administrative Hearings