When 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.”
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.
Joseph M. Goldstein is the Managing Partner of the Fort Lauderdale office of Shutts & Bowen LLP, where he is a member of the Business Litigation Practice Group. Joseph also practices out of the Tallahassee office.
- Bidding Smarter in Florida: “Who are You? Who? Who?”
- Sounds Reasonable to Me: DOAH Holds Agencies May Take Voluntary Corrective Action in Response to Untimely Bid Protests
- Apparently, You Can’t Have “Too Much” Competition: Florida’s First District Court of Appeals Holds “Multiple Award Procurement” Winner Cannot Protest Awards to Others
- Bidding Smarter in Florida: Knowledge is Power – The Public Records Act
- Risky Business: Florida’s Government Contractors Should Make Sure Their Contract Modifications Are Valid (a/k/a Don’t Inadvertently Donate Millions of Dollars’ Worth of Work to the Government)
- Bidding Smarter in Florida: “Alternate” Bids and Proposals are a Good Thing.
- Rock the Boat, Baby – They’ll Get Over It. Contractors Should Use the Q&A Process Strategically and Seriously Consider Spec Challenges.
- Defend Yourself! Contract Awardees Should Intervene In Bid Protests.
- I Would Have Bid on That! Challenging Out of Scope Modifications to Existing Government Contracts
- Buy Low! Businesses Need Not Bid On County-Owned Lands in Florida
- Florida Government Contracts
- Florida Bid Protests
- Government Contracts
- Proposal Writing
- Public Bidding
- Public Contracts
- Grant Writing
- Bid Protest
- Florida Public Contracts
- Government Contracting
- Federal Government Contracting
- Florida Administrative Law
- Public procurement
- Florida Procurement
- Request for Proposal
- Bid Writing
- Florida Bidding Strategies
- Florida Public Procurement
- Florida County Lands
- Florida Economic Incentive Packages
- Assignment of Contract
- Assignment of Proceeds
- State Government Contracts
- Florida Public Records Law
- Government Vendor
- Public Private Partnership
- Sunshine Law
- Federal Supply Schedule
- Small Business
- Socio-Economic Programs
- Veteran Owned Business