Tallahassee to consider more preemption bills in 2020 legislative session

Submitted by Suanne Z. Thamm
Reporter – News Analyst
January 8, 2020

Integrity Florida has just released a report entitled “Preemption Strategy: the Attack on Home Rule in Florida.” Integrity Florida is a nonprofit, nonpartisan research institute and government watchdog whose mission is to promote integrity in government and expose public corruption. Alan Stonecipher and Ben Wilcox, the report’s authors provide an in depth examination on the morphing of what was once a relatively seldom used state power to to align state and local laws to make sure there were no inconsistencies into more aggressive types of preemption which erode the power of local governments over vast areas of law and regulation.

Integrity Florida likens the state Legislature’s moves to limit home rule by local government to using a sledgehammer to kill a fly.

Report authors state, “Republican majorities in some states, including Florida, admittedly use preemption to punish local governments for enacting progressive legislation.” They continue, “The increased use of the preemption strategy in Florida comes with consequences. Preemption interferes with voters’ ability to determine the direction of their own communities and receive adequate responses to local conditions. Government action is moved from the entity closest to the people – local governments – and empowers the Legislature in Tallahassee. Preemption can block local ordinances that reflect a community’s will to help women, people of color, LGBTQ people and those in poverty. And punitive preemption laws, if determined to be constitutional, would change the type of candidates who run for office, deterring qualified people from seeking election to local positions.”

The report presents 11 key findings:

• Home rule powers granted to municipalities and counties do not protect local governments against aggressive preemption of their actions.
• Traditionally preemption was used to align state and local laws to make sure there were no inconsistencies. New types of powerful preemptions – called maximum preemption, blanket preemption, nuclear preemption and super-preemption – are now often used to void or block local government actions.
• Increasingly, super-preemption laws that hold local governments liable for action in specific policy areas are being used to punish or threaten punishment of local officials.
• Preemption is not always “bad”. “Bad” preemption deters policy innovation, limits local governments’ ability to make policy or undermines protection of individual rights.
• New preemptions are driven by partisan, ideological or special-interest motivations.
• Some state preemptions have been stimulated by corporate interests to block regulations they dislike.
• Some Republicans have expressly acknowledged that the use of preemption is a strategy to block progressive local actions and to punish “rogue” local governments.
• Aggressive use of preemptions has many negative consequences. Preemptions interfere with local residents’ ability to determine the direction of their communities. They block local attempts to add protections for LGBTQ individuals, black residents and the poor. They prevent local governments from enacting strong environmental and community health measures. Use of punitive preemption changes the kind of candidate who would serve under punitive laws.
• Use of preemption as a legislative strategy is increasing in Florida.
• Bills containing multiple preemptions are becoming common in the Florida Legislature.
• Business-funded corporate interest groups are using their considerable political influence, gained through campaign contributions and lobbying expenditures, to push preemption legislation in the Florida Legislature.

According to the Integrity Florida report, the state’s move toward more preemption legislation is driven in part by special interests of both business and lobbying groups, such as the National Rifle Association. There is also a fear among some legislators that cities could “go rogue” and create laws and policies that are at odds of those of the state with respect to issues such as sanctuary cities, minimum wage, and environmental protection laws such as banning plastic bags. To a certain extent, the conflict pits the state’s urban communities against rural areas.

The report criticizes the role lobbyists and special interests play in advancing preemption legislation. It finds in the 2018 election cycle Associated Industries of Florida spent more than $11.6 million and has 27 registered lobbyists. The Florida Chamber of Commerce spent more $9 million and has 25 lobbyists. The Florida Restaurant and Lodging Association has 17 lobbyists.

In an article published January 7, 2020 on the website Florida Politics , reporter Sarah Mueller wrote, “As of Dec. 10, 16 preemption bills — nine in the House and seven in the Senate — have been filed for the 2020 Legislative Session. The bills have been filed by Republicans and Democrats. They deal with issues such as local occupational licensing (HB 3), permitting standards for mobile home parks (HB 647), vacation rental properties (SB 1128) and home-based businesses (SB 778). Already drawing heavy attention has been a proposal (HB 113 and SB 172) that would prevent local governments from banning certain types of sunscreens and cosmetics. The proposal would prevent Key West from enforcing a ban on sunscreens containing chemicals that could be harmful to coral reefs.”

The Integrity Florida report lists 3 policy recommendations:

• Require two-thirds or super-majority vote for passage of legislation that preempts local government authority (similar to what is required for local unfunded mandates and public record exemptions).
• Establish by rule or law a single-subject requirement for preemption legislation.
• Prohibit any fines or punitive liabilities for local governments that violate legislative
preemptions.

The Florida League of Cities continues to actively monitor the legislature’s attempts to preempt local government and erode Home Rule powers of municipalities.

The 43-page Florida Integrity report is available on their website. Click here to read it. Especially interesting is the anatomy of the attempt to preempt local government ability to ban plastic straws. Although the legislature passed the legislation, Governor Ron DeSantis, in a surprise move, vetoed it.

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Larry Myers
Larry Myers (@guest_56403)
4 years ago

Local Governments, such as Fernandina Beach & Nassau County, should always have the Home Rule authority to take local actions. Such as the Banning of Plastic Straws on our Beaches. If you have ever helped with a beach clean up or just walked on the beach and saw all the discarded plastic & trash…You would say “Let the Locals pass their Local Ordnances to help control this mess.”

Tammi Kosack
Tammi Kosack(@tammi-kosack)
4 years ago

Thank you for this detailed article Suanne. And for providing the link to the full report.

Chuck Hall
Chuck Hall (@guest_56405)
4 years ago

Local Home Rule is also being used by progressives to throw out the Constitution, restricting rights of the people to the benefits provided by the founding documents. King George style on a local level.

Richard Kurpiers
Richard Kurpiers (@guest_56406)
4 years ago
Reply to  Chuck Hall

For instance?

Will Holder
Will Holder (@guest_56421)
4 years ago
Reply to  Chuck Hall

I also would like examples of instances, please.