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Florida’s local governments are sick and tired of state lawmakers pre-empting home rule, and they're starting to push back

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Things get outsourced these days. It's weird talking to someone in Mumbai or Salt Lake City about a curious cell phone charge or a wonky wireless router in Apopka. But in order to get some things everybody needs to work and live, like the internet or cellular technology, people put up with seeking customer service on another continent for a local issue. It's strange but manageable.

Another thing being outsourced lately that's far less manageable, especially here in Florida, is local government control. The Florida Legislature has passed aggressive pre-emption laws that nullify specific resolutions made on the local level. As city and county decisions are made in local governments all over Florida, often in response to local concerns that only impact the local community, state lawmakers swoop in to make the final call.

Communities as distant as the island inhabitants of Key West and the land-locked residents of Orange County, to the South Florida beach dwellers of Coral Gables and the West Florida beach dwellers of Anna Maria, have seen regulatory choices that matter a great deal to their region-specific livelihoods and quality of life outsourced to faraway lawmakers and lobbyists in Tallahassee.

"If we think of local government, it tends to be right down the street," says Florida AFL-CIO's director of politics and public policy, Rich Templin. "City and county commission meetings tend to happen after work hours. When you get there, there are people to watch your kids in the back that you know – neighbors, friends are there."

"Tallahassee is a bubble," Templin continues. "Geographically remote, psychologically remote. It's its own process that's incredibly complicated, incredibly intimidating, with power in the hands of lobbyists."

Local officials in Key West approved the ban of sunscreens made with chemicals that damage coral reefs, part of the island's tourism-economy lifeblood. But a state pre-emption law backed by corporate behemoth Johnson & Johnson might squash the local measure. Orange County residents, through a ballot measure, voted to require employers in the county to offer paid sick leave. Then a state bill backed by Disney World and Universal Studios, and authored by a corporate lobbying firm, blocked it.

The examples stretch to every corner of the state. As the new legislative session dawns, a coalition has risen to rebel against state overreach and regain local control by local governments.

"We firmly believe that the best government is a government that's closer to people," said Rep. Anna Eskamani the evening after she, Templin and the Florida AFL-CIO, among other state and local elected officials, held a press conference at the Florida House chamber's doors to announce a slate of bills that would repeal various state pre-emption.

State legislators alongside Eskamani were Rep. Carlos Guillermo Smith, Rep. Geraldine Thompson, Rep. Richard Stark, Rep. Joy Goff-Marcil, Rep. Javier Fernandez, and Rep. Ben Diamond. They were joined by Tallahassee City Commissioner Jeremy Matlow and groups including the American Heart Association, Florida Immigrant Coalition, Organize Florida, the Sierra Club, SurfRiders Foundation, Florida SEIU and Florida Local Unions 517, 630 and 1652.

"It's not likely where you see all these types of diverse groups come together, but the issue of local control impacts each one of us," Eskamani told Orlando Weekly, adding that Florida needs to realize the "harsh reality" that local power is being usurped largely by corporate lobbyists aggressively applying state pre-emption.

The pre-emption repeal bills the group hopes to pass this session will reinstate local ordinances to ban styrofoam and plastic bags in Coral Gables (SB 182/HB 6043), gun control ordinances various cities attempted to enact (SB 134/HB 6009), rent stabilization efforts from bigger cities like Orlando (HB 6013/SB 910), region-specific tree-trimming ordinances (HB 6077), telecommunication ordinances so cities can deal directly with providers (SB 1848/HB 6075), sanctuary city ordinances that help build trust with immigrant communities (HB 6023), and local minimum wage and earned sick time ordinances like the one swatted down in Orange County (SB 1520/HB 6065).

None of those bills have a chance in hell of passing the Republican-held legislature and with Gov. Ron DeSantis in the big house.

"Chances of any of those bills passing is zero to zero," says Templin. But the point of the coalition is to bring attention to state pre-emption overreach, to make a point via legislative self-immolation. "I think it's important for voters to understand how much of their local rights, how much local control has already been lost."

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Breaking the golden (home) rule

Most people in Florida agree that local governments should have local control. According to a recent survey of Florida voters by the Moore Information Group, 80 percent of voters agree that "local governments are better connected to the community than state government and should be allowed to pass policies that reflect their community's needs and values.

That's how state lawmakers saw things in 1968 when the Florida constitution was amended to allow cities and counties the power to pass local laws. Before that, local governments only had lawmaking control that was expressly granted by the state.

This is known as home rule.

Florida legislators stayed out of the regulatory way of cities and counties until this last decade, when state lawmakers, especially in the Republican-held Legislature, began using pre-emption as a specific tool to undermine local initiatives.

The growing coalition against inappropriate state pre-emption wants a return to a stronger home rule. But with the dim chance of getting any bills passed, the main part of their efforts is stopping new pre-emption bills.

Take a bill filed this session by Rep. Mike Grant that would pre-empt local occupational licensing. One of the ways cities make money is through licensing the occupations, industries and contractors that operate within city limits.

If Grant's bill passes, all of that would be handled by the state, which he sees as a boon for local workers and, ultimately, the cities they work, live and spend money in.

"Excessive licensing requirements can act as barriers to job entry for all workers," said Grant in a statement. "HB 3 stops unnecessary local licensing restrictions so that people can work statewide without extra fees and requirements."

Other "bans on bans" already filed this session include pre-emption of local law relating to recyclable and polystyrene materials (SB 182), pre-emption of local motor home park laws (HB 647), pre-emption of local vacation rental regulations (HB 1011), and pre-emption of the ecological movement to grant legal rights to the natural environment (HB 1199, ironically called the "Environmental Protection Act").

"We're fighting," says Templin, "but it's mostly defensive."

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The Good pre-emption, The bad – and The ugly

"It should be clear that a red light should mean 'stop' everywhere," says Scott Dudley, legislative director for the Florida League of Cities. "Statewide standards, or national standards, make sense."

More examples of smart pre-emption: National and state water utility standards are important, he adds, because water flows between city or state boundaries. The Civil Rights and Voting Rights Acts are examples of federal pre-emption of state or local laws that enforced discrimination or voting suppression.

Uniformity and consistency on basic tenets of civilization and safety are required for a multi-tiered government like America's republic.

But if a city or state wants to add further civil protections or higher standards for water quality on top of federal mandates, they should be able to, argues Dudley. Florida-style state pre-emption is so aggressive, it strictly blocks cities from having any say if the state has decided to step in.

"Florida is unique in the sense that tries to pass the broadest, what we call 'blanket,' pre-emption laws," says Kim Haddow, director of the Local Solutions Support Center, a national advocacy group that fights abusive state pre-emption. She says, in the last five to seven years, Florida has pulled away as one of four states in the country – the others being Texas, Arizona and Tennessee – that rely most heavily on aggressive blanket pre-emption.

It's the kind that "covers the whole field," says Hudson Kingston, staff attorney with the Minnesota-based Public Health Law Center, which means, if a state pre-emption is passed on an issue like, say, tobacco use and sales, no county or city official can make any law in the field of tobacco use and sales.

Even among Haddow's top four pre-emption states, she says Florida stands out as the most punitive. Blocking local officials from making any law related to a certain pre-emption is one abuse. Arresting local elected representatives for attempting to enact local law is another. A sanctuary city pre-emption was passed in July and took effect at the start of this year, barring any city officials from offering municipal-backed help to illegal immigrants. It's a weakened version of the original bill, which included punishments for local officials that passed sanctuary city resolutions, including being jailed.

Local gun regulation pre-emption has been on the books in Florida since the 1980s. Following the Marjory Stoneman Douglas High School shooting in 2018, cities attempted to appeal the pre-emption in order enact stricter local gun regulations. This prompted an even more aggressive pre-emption bill that punished local officials if they passed tighter gun rules with possible fines, lawsuits, removal from office and even criminal charges. A state judge struck down the more punitive portions of the law. But Florida Attorney General Ashley Moody filed a notice of appeal to that ruling in July. The pre-emption law is still in the appeals process.

The intense overreach of punitive pre-emption is an abuse Haddow calls "draconian." As those extremes continue to be battled out in the courts, municipalities are left with the blanket pre-emption bills that pass each year. Many are backed by corporate interests or eliminate civil rights protections, notes Haddow.

"What is pre-empted in Florida? Minimum wage, paid sick days, looking at sanctuary cities," she says. "If you think of minimum wage and paid sick time, it's women of color, it's the poor who don't have paid sick time and don't make a living wage. Pre-emption keeps economic structure, perhaps racial structure, if you look more deeply, in place."

An explosive example of pre-emption in Central Florida took place in 2012 when advocacy groups and Orange County residents gathered thousands of votes in order to force a ballot measure on paid sick leave in the upcoming election. The Orange County Commission blocked the measure from showing up on the ballot. Reports showed that commissioners, including Mayor Teresa Jacobs, received texts from corporations like Disney and Universal urging her to block mandatory paid sick leave. But a judge ruled that the 50,000 signatures from Orange County voters required the measure go on the ballot.

In 2013, Orange County voters passed the ballot measure that required employers in the county to provide 56 hours of paid sick leave time – only to have the law pre-empted by the state. Then-Gov. Rick Scott signed the pre-emption, which was supported by Disney, Universal and Darden, the Orlando-based corporation that owns the restaurant chains Red Lobster and Olive Garden. Instead of corporations like Disney (for instance) squashing paid sick leave measures in each county, or in more than 400 cities across Florida, their lobbyists only have to make one trip to Tallahassee.

"It's much easier to control the state legislature than local municipalities," says Stephanie Porta, executive director of Organize Now, the Orlando organization that led the charge for paid sick leave in Orange County. "It's a one-stop shop," says Templin. Haddow noted that state pre-emption simplicity is also aided by the convenience of corporate lobby firms like the nonprofit American Legislative Exchange Council (ALEC) writing boilerplate pre-emption laws.

No matter the local issue, the "state is stepping in and saying, 'We know better, we're stepping into your domain,'" says Dudley. "And that's not right."

This story appears in the Feb. 5, 2020, print issue of Orlando Weekly. Stay on top of Central Florida news and views with our weekly Headlines newsletter.

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