Preemption, in my neighborhood, looks like a drunken frolic. As if a frat house has preempted the pretty yellow cottage down the street.
Technically, “preemption” refers to clauses commonly added to state statutes that override city and county ordinances. The Florida Legislature dearly loves the concept. That’s how the good ol’ boys in Tallahassee keep cities and counties from, say, banning backyard gun ranges in residential areas. Or keep local governments from prohibiting guns in parks or playgrounds. Because our state lawmakers sure as hell know better about local issues than some mayor or city commissioner.
Still, my neighbors were a bit shocked to discover that preemption can have very beery consequences as the house down the street became a weekend rental catering to raucous bachelor parties and the like, with late-night hell-raising and a fleet of cars parked down the block.
The city of Fort Lauderdale can’t do much to help, due to a preemption clause attached to a 2011 state statute stating: “A local law, ordinance or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals.”
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The city can send cops to quiet the wildings at 3 a.m. Maybe write a ticket or two for illegal parking. But that’s about it. When Fort Lauderdale tried to crack down on rentals of fewer than 30 days in 2012, a Broward County circuit judge slapped the city down. He cited statutory preemption.
It would seem an odd predilection for a conservative, Republican-dominated Legislature whose members rail about big government mandates and federal interference in state prerogatives. We know better about local issues, they tell the feds, even as they foist the Legislature’s rural ethic on urban Florida.
“Every municipal official is vexed by the hypocritical actions of the state Legislature in their penchant for passing preemptive legislation,” South Miami Mayor Philip Stoddard told me via email. “Fighting that BS is the primary occupation of the lobbyists we hire to represent us in Tallahassee.”
Mayor Cindy Lerner of Pinecrest, also by email, told me, “The Florida League of Cities has for years had to lobby against the many ways and issues that the Florida Legislature imposes on local government.” She said preemption was a convenient tool for the Legislature “basically any time a special interest wants to stamp out those pesky local government laws trying to regulate the health, safety, welfare of our residents.”
Lerner mentioned the preemption laws against short-term rental regulation and even attempts by cities to limit retailers from using plastic bags. But the preemption list goes on and on. Cities and counties can’t prohibit smoking in music venues, patio dining areas, parks, beaches. They can’t demand that restaurants disclose the nutritional content of their drinks or dishes. They can’t keep bio-medical waste out of city dumps.
Local governments can’t enact limits on beekeeping. Or prohibit homeowners from owning exotic animals, even jungle cats or cobras. Other than Miami-Dade County, which has a special home-rule exemption in the state Constitution, local governments can’t ban pit pulls.
Cities and counties can’t enact living wage ordinances. Or mandate paid leave.
“Yes, it seems to be a trend,” Coral Gables Mayor Jim Cason said. “[Legislators] just recently passed a law interfering in municipal pension matters.” He said the new statute hamstrings cities trying to renegotiate pension terms and amounts to yet another unfunded mandate that will shift costs from the state to the city, even as “legislators are getting credit for lowering taxes.”
For nine years in a row, the fertilizer industry has pushed for a preemption bill to counteract regulations by towns concerned about algae choking their waterways. I wouldn’t bet against the bill eventually making to the governor’s desk.
Miami Beach Mayor Philip Levine attributed much of the Legislature’s propensity for preemption bills to powerful special interests that have an outsized influence in Tallahassee. He talked about how the short-term rental industry used the Legislature to circumvent city governments trying hard to protect their neighborhoods in the age of Airbnb. “That’s the No. 1 goal of local elected officials, for us,” he said. “To protect their residents’ quality of life.”
Levine added, however, that preemption can also be useful when the taxi cab industry uses its political influence at the county level to stifle Uber or Lyft. A preemption bill regulating ride-share services didn’t survive this year’s abbreviated legislative session. But neither did lawmakers get around to a bill that would keep local governments from regulating fracking.
In my neighborhood, preemption mostly means a string of wild party weekends. Preemption also means that the drunken boys can hunker down with jungle cats, pit bulls, black mambas, honey bees. If they get bored, they can set up a backyard gun range.
And just maybe, if the Florida Legislature gets busy during next month’s special session, when the partiers get tired of twerking, they can try fracking.