The effectiveness of home rule: a preemption and conflict analysis.

AuthorWolf, James R.

Prior to the 1968 revision of the Florida Constitution, local governments had only those powers expressly granted them by law. (1) In 1968, the Florida Constitution was amended to authorize local home rule powers for both cities and charter counties. (2) The first Florida Supreme Court case discussing the 1968 amendment significantly narrowed the amendment's application and suggested that, unless a city's action was clearly reasonable, any dispute regarding the action should be resolved against the local government. (3) On the heels of this decision, the legislature, in 1973, enacted the Municipal Home Rules Power Act (MHRPA), now codified in Ch. 166 of the Florida Statutes. The MHRPA guarantees that local governments retain governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services. This power may not be curtailed except as otherwise provided by law. (4) The MHRPA effectively foreclosed the preexisting presumption that local government action must be narrowly confined to only the immediate needs of the residents. The act further dictated that local governments should be allowed to act if not clearly directed otherwise by the state. Both the Florida Constitution and state statutes express a preference that, absent some necessity for a statewide enactment, local officials should deal with problems relating to the health and welfare of their citizens.

In the last 50 years, Florida's population has swelled from around 2.5 million to approximately 18 million. With this substantial influx of residents, city and county governments are forced to become more involved in the passing of local laws facilitating services for their growing population and providing increased regulatory protection. In addition, the present budget crisis is creating an even greater need for local government expansion to include services and regulatory controls. (5) The increase in local legislation has tested the boundaries of the MHRPA. By surveying the jurisprudence that has arisen on the issue of local versus state action, this article seeks to clarify the boundaries of the MHRPA and to identify those instances in which local action may not survive.

The MHRPA specifically states that local governments should be able to act unless otherwise provided by law. In Florida, courts have interpreted this provision to mean that local government action should only be prohibited if the action is either 1) preempted by state law or 2) in conflict with state law. (6)

Preemption

State preemption precludes a local government from exercising authority in a particular area and involves inconsistency with the state constitution or state statute. Preemption may exist in one of two ways: it may be either expressed or implied.

Even in cases of express preemption, it is unlikely that a specific portion of a state statute expressly declaring preemption will directly address the exact action contemplated by the local government. It is more likely that the state statute will demonstrate an intent to occupy a field of regulation. The court must then examine whether the local government action is within the scope of the preemption.

For instance, in Florida Power Corp. v. Seminole County, 579 So. 2d 105 (Fla. 1991), the Supreme Court declared that F.S. [section]366.04(1) expressly preempted the area of utility rate regulation, and thereby prohibited a county and city ordinance requiring Florida Power to bury its power lines as a result of a proposed road expansion. However, F.S. [section]366.04(1) (1991) did not unequivocally provide that the state and the state alone could require such an action. The statute did, however, provide that the Public Service Commission, a state agency, retained the "exclusive and superior ... power to prescribe fair and reasonable rates and charges." (7) The court reasoned that the requirement to bury utility lines would end in higher operating costs for Florida Power, and would, thus, inevitably end in the state authorizing higher rates for consumers. As such, the court opined that the express wording of the statute preempted the action and prohibited the ordinances.

Accordingly, while preemption can be express, this does not necessarily mean that preemption will be explicit as to the breadth of its coverage or as to whether the preemption will preclude the specific proposed action. (8) While no magic words exist signifying an express preemption, in determining whether express preemption exists, it is important to look for phrases signifying the state's exclusive jurisdiction in a subject matter. This language should make clear that the legislature intended to preempt any local regulation on the subject. While express preemption may not be implied or inferred, whether that express preemption is broad enough to encompass the proposed action may be open to interpretation. (9)

Cases in which the courts have found express state preemption are rare. (10) Taxation is one of the areas in which there has been an explicit finding of express preemption. (11) Based on the constitutional protections afforded local governments, any ambiguity on the issue of express preemption should be resolved in favor of the local government. (12) Such a presumption is consistent with the voters' intent to provide broad home rule powers to cities and charter counties so that they may protect the welfare of their citizens. Accordingly, Florida courts have usually bowed to the voters' intent that local governments should be able to act barring a clear directive by the state not to allow the action.

As previously discussed, the MHRPA states that a municipality may act unless expressly prohibited by law. Prior to 1994, Florida courts had gingerly suggested that preemption need not be explicit if the state statute was so pervasive as to display an obvious intent to prevent local legislation on the matter. (13) In 1994, the First District recognized for the first time two types of state preemption--implied and expressed. (14) It appears that the doctrine of implied preemption was created to address those situations in which the courts may have been troubled by the legislature's failure to add words of express preemption in areas which, for all intents and purposes, seemed dominated by the state. However, a finding of implied preemption is based on a court's gleaning of legislative intent and can also substantially infringe upon a local government's home rule authority in violation of the direct mandate of the constitutional home rule provision and MHRPA. Thus, a finding of implied preemption should be reserved for the very narrow class of cases in which the state has legislated pervasively, thereby suggesting a strong policy behind limiting local action. (15)

Conflict

Beyond preemption, courts have recognized that state legislation may override local action if that action expressly conflicts with the legislation. To avoid conflicting with state legislation, local action must be able to coexist with the state legislation without frustrating its purpose. (16) The determination of whether local legislation conflicts with state legislation can be a difficult one. Several cases have recognized that divergent local and state legislation can coexist without conflict. Thus, the mere fact that local legislation addresses similar subject matter as that addressed by state legislation will not precipitate a finding of conflict.

The first question that should be asked in deciding whether local action conflicts with a...

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