(The Center Square) – Preemption has been a percolating issue in Florida since 2011, when the Republican-controlled Legislature inserted political penalties into the state’s 1987 preemption law banning municipalities from adopting their own gun laws.
The 2019 legislative session generated nearly 50 preemption bills, producing laws that prohibit local governments from banning front-yard gardens, from collecting fees from communications providers for using public rights-of-way, and award attorney fees and damages to residents who win lawsuits against local governments for taking actions that exceed their constitutional authority.
During the 2020 session, Florida lawmakers pondered more than three dozen preemption bills. Among those adopted:
• The Florida Drug and Cosmetic Act, which prohibits local governments from regulating over-the-counter proprietary drugs or cosmetics. The bill was a response to Key West’s now-defunct ban on sun screens containing oxybenzone and octinoxate.
• The Occupational Freedom & Opportunity Act, which reduces or eliminates regulatory requirements imposed by 18 state boards that license 440,000 Floridians working in a swath of professions, including barbers, Realtors, certified public accountants, engineers and auctioneers.
• Senate Bill 1066, which blocks local governments from increasing impact fees on pending building permits, requires each local government to create an impact fee review board and streamlines the approval processes.
One realm of local regulation Republican leaders have targeted unsuccessfully with preemption bills is short-term or vacation rentals.
Short-term rentals of homes by Florida residents is an estimated $31 billion industry, with 6.6 million visitors in 2019 staying in a home rented via a digital platform rather than in a hotel and generating about $1.2 billion in state, county and local fees and tax revenues.
Sen. Manny Diaz Jr., R-Hialeah Gardens, filed Senate Bill 522 on Monday. It seeks to place vacation rental regulation exclusively under the Florida Department of Business and Professional Regulation’s (FDBPR) Division of Hotels and Restaurants.
The bill is similar to Diaz’s 2020 bill, Senate Bill 1128, which languished in committee. A House companion, House Bill 1011, sponsored by Rep. Jason Fischer, R-Jacksonville, died on the House floor without a vote.
SB 522 would preempt local laws, ordinances and regulations that have been adopted by municipalities since 2011 from allowing or requiring inspections or licensing of all lodging establishments and restaurants.
It also would require licenses from the FDPBR’s Division of Hotels and Restaurants and requires the platforms’ Florida users to abide by state tourism tax codes.
The Legislature’s impetus in streamlining vacation rental regulations comes on behalf of Floridians who argue local ordinances that restrict their ability to generate income by renting their homes is “taking” under the 5th Amendment, and in response to internet platforms, such as Airbnb and HomeAway, that argue the state’s 488 municipalities have created an inconsistent and burdensome checkerboard of rules and regulations.
Preempting vacation rental regulation is opposed as potentially unconstitutional by local officials across the state, by residents who don’t want vacation rentals in their neighborhoods and by the state’s powerful hotel industry.
Outnumbered Democrats will counter with doomed efforts to stem the preemption tide.
Senate Joint Resolution 540, filed Tuesday by Senate Minority Leader Sen. Gary Farmer, D-Fort Lauderdale, asks lawmakers to place a proposed constitutional amendment before voters in November 2022 to require a supermajority of each chamber to approve a bill that preempts “a subject of legislation” to the state beginning Jan. 1, 2024.
The resolution reads, “The legislature may not, except by a general law passed by a two-thirds vote of each house, preempt to the state a field of regulation or other subject of legislation not preempted to it by this Constitution.”
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