Home rule and its balance with preemption.

Home rule has long been a contentious fight between the state legislature, and local governing bodies. Where local control by the county or city is largely supported by local residents in almost all jurisdictions, we continue to see great support for state pre-emption of laws within the local community.

It is no secret that community leaders at the local level are more receptive to their constituents as opposed to their state counter parts. Local elected officials are easier to access geographically, they are generally more involved locally, and they are usually an easier target for replacement when things are not improving. The ability to hold your local officials accountable for their actions has always been more easily within hand when compared to state or federal officials.

So why do we continue to see such support for state pre-emption? More curiously, why do we see such interest from the state into the inner workings of 67 counties and over 1000 municipalities? The answer is a surprisingly simple one: The state does not wish to oversee the multitude of lawsuits that arise from poor local governance. Though some legal challenges are without merit (where the local authorities are justified and within their rights), hundreds of cases every year involve local governments challenged in state court over the constitutionality of their actions.

To put it more succinctly: citizens often sue their local government over constitutional rights.

Just as we as U.S. citizens enjoy constitutional liberties, we as Floridians have constitutional rights under the constitution of the State of Florida. Without a doubt, many of those rights are redundant, but there are plenty more that are directly related to the authority of the state and the rights of its citizens. Just as the constitution of the United States is primarily an organizational document for Federal government, so too is the state constitution- highlighting the responsibilities of the state and the rights of incorporated counties and municipalities under its protection.

In the case of pre-emption, we have seen over the last 35 years a solid stream of state action in response to local authoritative overreach. In 1986 the state took full control of firearm licensing and sales rule making by establishing preemption over local government in response to a high volume of similar lawsuits from around the state. Multiple different jurisdictions all circumventing the 2nd amendment rights of citizens, in their own particular fashion. Just the year before, Florida issued its original preemption of tobacco regulation within the parameters of the Florida Clean Indoor Air Act after residents were discriminated against based on their tobacco usage habits. This preemption has been subsequently reaffirmed with every alteration of Florida Ch. 386 (Clean air act). More recently, the institution of preemption by the state in regards to COVID-19 vaccination status last November. Scores of lawsuits- some class action sized- were filed by employees of counties and cities requiring vaccination for continued employment, and the state did not want to deal with them all. The result- you guessed it, preemption. The state passed 3 laws during special session to bar local government from dictating your vaccination status.

Two weeks ago, Commissioner Heatherington brought up the question of home rule, and whether or not we were “winning the battle but losing the war”, because of increased litigation. This particular cause was in relation to the pet shop ordinance (still in political limbo), and the legal representation retained to fight it. Miss Heatherington correctly connected the dots about home rule: rampant legal challenge has diminished home rule. In passing ordinances that are popular (yet questionably constitutional), is winning the small victory worth losing our rights to self-govern as a county?

With all this said, the question now is what to do about it. I would suggest the answer is simple: stop infringing on your constituents’ rights.

There is a purpose we have a constitution, and more importantly, constitutionally observed and enumerated liberties: to protect against mob rule. The downside to local government and their accessibility is their heightened likelihood to be swayed by mob rule. Whether it be the abolition of clothing optional stage performances; locations for sale of tobacco or other objectionable items; or in this case, the reprisal by one main body to shut down newly opened pet stores- the action is the same: Mob rule to intimidate or coerce local officials.

When this comes to play, and local authority decides mob rule can subvert individual liberty, the state has only one recourse: preemption. If the commission wants to avoid this outcome, simply stop ignoring citizens constitutional liberties.

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