A Local Leader On Guard Against Preemption in a State That’s a Hotbed For It
The Florida state Capitol in Tallahassee Shutterstock
“These legislators are doing things without even speaking to, or thinking about, local governments,” says the city commissioner.
When Florida’s 2020 legislative session kicked off last month, Josh Simmons, a commissioner in the city of Coral Springs, was bracing for the possibility that state lawmakers might take new action to weaken the power local governments have to impose laws and regulations.
This phenomenon, where states restrict local authority, is often referred to as preemption. It has grown substantially in Florida over the past three decades, according to Integrity Florida, a nonprofit research institute and watchdog organization.
The group says in a report issued last month that the Florida legislature has asserted its preemption powers to limit local control over a wide range of issues—smoking restrictions, plastic bag bans, pest control, housing, the minimum wage, and signage among them.
Simmons, who took office in November 2018, wrote an op-ed that appeared in Florida newspapers as the session began. In it, he urged local leaders and residents to “be vigilant,” warning that local authority would remain “under attack” in Tallahassee.
Reached by phone last week, Simmons conceded that there are situations where state-wide policies can make sense in the interest of preventing a patchwork of local regulations.
What he described as problematic, however, is when special interests, including corporations, appear to hold heavy sway over certain bills, while state legislators don’t always seem to bother factoring in local government concerns and input when making decisions.
“Not all preemption is bad,” Simmons said. “But when it clearly looks like it’s favoring corporations, and the legislator at that time who may have gotten a call from a corporation, then that’s where I have a problem,” he added. “These legislators are doing things without even speaking to, or thinking about, local governments.”
A Florida law that preempts local governments from regulating firearms is one that Simmons flagged as especially troubling. Initially adopted in 1987, the firearms law prevents cities or counties from enacting local gun ordinances or regulations, leaving the oversight of guns and ammunition pretty much exclusively to the state.
In 2011, the legislature adopted legislation that went further, creating penalties for local governments, and local officials themselves, who are found to have violated the state’s firearms preemption mandate. These officials can face $5,000 fines and possible removal from office.
The statute also creates a framework where people and organizations who believe they’ve been wronged by an unlawful local gun regulation can sue the local government that is behind the measure for up to $100,000 in damages.
Simmons stressed that he is not interested in taking peoples’ guns away from them.
But authorities have said the confessed gunman in the Parkland, Florida school shooting, which claimed 17 lives in 2018, purchased the rifle used in the incident from a store in Coral Springs.
Simmons suggested that there could be ways to improve public safety with policies like limits on the amount of ammunition that someone can buy, or other restrictions designed to prevent people from having the ability to fire off a large number of rounds in a public space.
“We can’t do anything about that,” he said.
About 30 localities and over 70 elected officials have been fighting with the state in court, challenging the preemption penalty provisions of Florida’s gun laws. A state judge ruled in their favor last summer, concluding the penalties ran afoul of the state's constitution and the U.S. Constitution.
But Gov. Ron DeSantis and state Attorney General Ashley Moody, both Republicans, have appealed that ruling and the legal dispute remains active.
It’s not just the gun-related restrictions that Simmons chafes over. He noted that he recently urged state lawmakers to reject pending legislation that would restrict local governments from regulating short-term rentals that people book using online platforms like Airbnb.
“I don’t want to stop people from having the ability to work with Airbnb,” Simmons said. “But we should still be able to have some control over it.”
The city commissioner also pointed to a recent win for Florida local governments on the preemption front: DeSantis’ veto of legislation that would have blocked localities from regulating plastic straws. Some see plastic straw bans as a way to help curb pollution.
“It is nuanced. There is room for and reasons for preemption,” Simmons said. “But not when it’s being used punitively, or used in a way that is just hindering our ability to protect our citizens and to do what’s in their best interest,” he added. “It’s a fine line.”
Bill Lucia is a senior reporter for Route Fifty and is based in Olympia, Washington.
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