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Thursday, January 13, 2022

Proposed Senate bill would allow businesses to block local ordinances

Posted By on Thu, Jan 13, 2022 at 9:46 AM

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Local government officials raised concerns Wednesday about a Senate proposal that would block enforcement of new ordinances when challenges arise over the projected impacts to businesses.

The Republican-controlled Senate Community Affairs Committee voted 7-2 along party lines to approve the proposal (SB 280), which would require counties and cities to produce a “business impact statement” before passing ordinances and to suspend enforcement of the ordinances amid legal challenges.



Bill sponsor Sen. Travis Hutson, R-St. Augustine, said the proposal is an attempt to “resolve statewide preemption bills” while protecting businesses. Preemption bills, which have been highly controversial in recent years in the Legislature, restrict the authority of local governments.

“We need to make sure the businesses know how much they're getting affected,” Hutson said. “And, also, if a business is affected, that they'd be made whole.”

Hutson also is sponsoring a measure (SB 620) that would allow businesses to sue if local ordinances cause at least 15 percent losses of revenues or profits. That bill needs to clear the Appropriations Committee before it could go to the full Senate.


During Wednesday’s meeting, Sen. Tina Polsky, D-Boca Raton, pointed to the potential power lawmakers could provide to block local ordinances.

“A national corporation could veto an ordinance voted on by a duly elected official local body, in a majority vote, that had open public comment for an extended period of time,” Polsky said.

Sen. Gary Farmer, D-Lighthouse Point, called Wednesday’s proposal a “trial lawyer’s dream.”

“I don't see anything in the bill, or the amendment that deters people from seeking this ordinance suspension for frivolous purposes or just for harassment,” Farmer, a trial lawyer, said. “You may be a business owner that maybe is planning on running against one of the commissioners or the mayor and you just decide you're going to try to make them look bad.”

Hutson amended the proposal Wednesday by removing a requirement that accountants or financial consultants must be involved in preparing impact statements. The amendment also would cap attorney fees that could be collected from local governments at $50,000, give 90 days for challenges to be filed after ordinances are adopted and limit estimates of direct impacts to businesses that are within the local jurisdictions.

Hutson said he worked with the Florida League of Cities and the Florida Association of Counties on the changes, but the cities organization remains opposed.

Rebecca O'Hara, senior legislative advocate for the Florida League of Cities, said Hutson’s removal of the requirement for financial consultants to be hired to prepare impact statements is a nice gesture but appears impractical.

“If the ordinance is challenged, and if the business impact statement is fair game to be invalidated as cause for invalidating an ordinance, then both sides will have to bring their experts to the court to testify about the underlying data, about the underlying methodology and about the assumptions,” O’Hara said. “That alone is going to drive the cost of this bill up significantly. Expert witnesses typically run $300 to $400 an hour on the low side.”

The Florida Association of Counties has not taken a position but raised concerns.

Edward Labrador, senior legislative counsel for the association, said the proposal could allow ordinances to be overturned “simply because we might have gotten the math wrong” in a fiscal impact report.

"We're not saying that we don't want to do one," Labrador said. "We're saying that there's an issue here as to how we do it and whether it's a procedural versus a substantive issue."

Other critics contended the effort is overwhelmingly pro-business to the detriment of local communities.

“The worst part is that these consultants, lawyers and businesses may not even live in the municipality they are challenging and the bulk of their business operations may be in a different state or overseas,” said Jonathan Webber of the Florida Conservation Voters. “Even something as simple as a new building code to ensure climate-ready new structures could be delayed for years.”

In voting for the bill, Sen. Dennis Baxley, R-Ocala, said critics of the proposal are painting “businesses as evil.” He said the proposal gives businesses an “adequate voice to respond to the heavy hand of government.”


The measure is supported by the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Restaurant and Lodging Association and the conservative group Americans for Prosperity-Florida.

During an address Tuesday to help open the annual legislative session, Senate President Wilton Simpson, R-Trilby, acknowledged concerns by cities and counties about preemption bills.

“I want local governments to know that we have heard your concerns about preemption bills. I will keep a sharp eye out for legislation that would limit your ability to pass local ordinances,” Simpson said.

But he then added, “At the same time, we're going to make sure that local citizens and businesses understand the impacts of your regulations by requiring you to provide fiscal impact statements for ordinances and referendums. We will also ensure that you pay legitimate businesses that are impacted by your takings.”




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