When a Local Ordinance Doesn't Govern Your Business

when a local ordinance doesn't govern your business, florida government contracts blog, Shutts & BowenWhen does a local law have no teeth? When a state law preempts it.

Preemption is a doctrine based on the Supremacy Clauses of the US and Florida Constitutions. They hold that certain matters are of such statewide (or national) importance that the state law takes precedence over the local laws and prescribes the standards by which a business must conduct itself.

When do you know if a local law is preempted? When its “enactment may be inconsistent with state law if,

  • the Legislature ‘has preempted a particular subject area’ or,
  • the local enactment conflicts with a state statute.”

Sarasota Alliance for Fair Elections, Inc. v. Browning.

In other words, preemption is either express or implied.  See City of Hollywood v. Mulligan; Phantom of Clearwater, Inc. v. Pinellas County, approved in Phantom of Brevard, Inc. v. Brevard County.

Defining express and implied legislative preemption

Express preemption requires a specific legislative statement; it cannot be implied or inferred. Express preemption of a field by the Legislature must be accomplished by clear language stating that intent. In cases where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. Mulligan, 934 So.2d at 1243.

Preemption is implied “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.” Phantom, 894 So.2d at 1018.  Implied preemption is found where the state legislative scheme of regulation is pervasive and the local legislation would present the danger of conflict with that pervasive regulatory scheme.

Local business affected by local ordinance

In the recently published opinion Classy Cycles, Inc. v. Bay County, 2016 WL 5404205 (1st DCA 2016), a local business was being impacted by local ordinances with respect to its rental of motor vehicles (scooters, etc.).

When the litigation commenced, Classy Cycles operated several businesses in Bay County and Panama City Beach, which rented motor vehicles subject to safety vest and insurance ordinances of the local governments. Classy Cycles asked the court to declare that the ordinances exceeded the scope of the authority of the local governments. Classy Cycles also sought damages for lost revenue because, it alleged, its motor scooter rental businesses could not fully operate because the required insurance could not be obtained. Bay County’s argument is that it had a valid reason to impose the regulations.

The trial court found in favor of the local government and the business appealed. On appeal, the First District Court of Appeals found in favor of Classy Cycles when it held that the safety gear requirements and insurance requirements under Florida Statutes, Chapters 316 and 627, respectively, expressly and impliedly preempted the local ordinances.

A local ordinance preempted by a state law can impact your business

If your business has been accused of violating a local law, or if you feel that your local ordinances are a real burden on your business, check with your attorney as to whether you actually face liability or have an obligation to follow the local law.  A failure to investigate whether a local ordinance may be preempted by a state law could have a greater impact on your bottom line than the legal fees spent in evaluating the issue.

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