Florida Senate - 2022                        COMMITTEE AMENDMENT
       Bill No. SB 280
       
       
       
       
       
       
                                Ì616410kÎ616410                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/12/2022           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Community Affairs (Hutson) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 57.112, Florida Statutes, is amended to
    6  read:
    7         57.112 Attorney fees and costs and damages; preempted local
    8  actions.—
    9         (1) As used in this section, the term “attorney fees and
   10  costs” means the reasonable and necessary attorney fees and
   11  costs incurred for all preparations, motions, hearings, trials,
   12  and appeals in a proceeding.
   13         (2) If a civil action is filed against a local government
   14  to challenge the adoption or enforcement of a local ordinance on
   15  the grounds that it is expressly preempted by the State
   16  Constitution or by state law, the court shall assess and award
   17  reasonable attorney fees and costs and damages to the prevailing
   18  party.
   19         (3) If a civil action is filed against a local government
   20  to challenge the adoption of a local ordinance on the grounds
   21  that the ordinance is arbitrary or unreasonable, the court may
   22  assess and award reasonable attorney fees and costs and damages
   23  to the complainant if successful. An award of reasonable
   24  attorney fees or costs and damages pursuant to this subsection
   25  may not exceed $50,000. In addition, a prevailing party may not
   26  recover any attorney fees or costs directly incurred or
   27  associated with litigation to determine an award of reasonable
   28  attorney fees or costs.
   29         (4) Attorney fees and costs may not be awarded pursuant to
   30  this section if:
   31         (a) The governing body of a local governmental entity
   32  receives written notice that an ordinance that has been publicly
   33  noticed or adopted is expressly preempted by the State
   34  Constitution or state law or is arbitrary or unreasonable; and
   35         (b) The governing body of the local governmental entity
   36  withdraws the proposed ordinance within 30 days; or, in the case
   37  of an adopted ordinance, the governing body of a local
   38  government notices an intent to repeal the ordinance within 30
   39  days of receipt of the notice and repeals the ordinance within
   40  30 days thereafter.
   41         (5)(4) The provisions in this section are supplemental to
   42  all other sanctions or remedies available under law or court
   43  rule. However, this section may not be construed to authorize
   44  double recovery if an affected person prevails on a damages
   45  claim brought against a local government pursuant to other
   46  applicable law involving the same ordinance, operative acts, or
   47  transactions.
   48         (6)(5) This section does not apply to local ordinances
   49  adopted pursuant to part II of chapter 163, s. 553.73, or s.
   50  633.202.
   51         (7)(a)(6)Except as provided in paragraph (b), this section
   52  is intended to be prospective in nature and applies shall apply
   53  only to cases commenced on or after July 1, 2019.
   54         (b)The amendments to this section effective October 1,
   55  2022, are prospective in nature and apply only to ordinances
   56  adopted on or after October 1, 2022.
   57         Section 2. Present subsections (3) through (6) of section
   58  125.66, Florida Statutes, are redesignated as subsections (4)
   59  through (7), respectively, a new subsection (3) is added to that
   60  section, and paragraph (a) of subsection (2) of that section is
   61  amended, to read:
   62         125.66 Ordinances; enactment procedure; emergency
   63  ordinances; rezoning or change of land use ordinances or
   64  resolutions.—
   65         (2)(a) The regular enactment procedure shall be as follows:
   66  The board of county commissioners at any regular or special
   67  meeting may enact or amend any ordinance, except as provided in
   68  subsection (5) (4), if notice of intent to consider such
   69  ordinance is given at least 10 days before such meeting by
   70  publication as provided in chapter 50. A copy of such notice
   71  shall be kept available for public inspection during the regular
   72  business hours of the office of the clerk of the board of county
   73  commissioners. The notice of proposed enactment shall state the
   74  date, time, and place of the meeting; the title or titles of
   75  proposed ordinances; and the place or places within the county
   76  where such proposed ordinances may be inspected by the public.
   77  The notice shall also advise that interested parties may appear
   78  at the meeting and be heard with respect to the proposed
   79  ordinance.
   80         (3)(a) Before the enactment of a proposed ordinance, the
   81  board of county commissioners shall prepare a business impact
   82  estimate in accordance with this subsection. The business impact
   83  estimate must be posted on the county’s website on the same day
   84  the notice of proposed enactment is published pursuant to
   85  paragraph (2)(a) and must include all of the following:
   86         1.A summary of the proposed ordinance, including a
   87  statement of the public purpose to be served by the proposed
   88  ordinance, such as serving the public health, safety, morals,
   89  and welfare of the county.
   90         2.An estimate of the direct economic impact of the
   91  proposed ordinance on private for-profit businesses in the
   92  county, including the following, if any:
   93         a.An estimate of direct compliance costs businesses may
   94  reasonably incur if the ordinance is enacted.
   95         b.Identification of any new charge or fee on businesses
   96  subject to the proposed ordinance or for which businesses will
   97  be financially responsible.
   98         c.An estimate of the county’s regulatory costs, including
   99  an estimate of revenues from any new charges or fees that will
  100  be imposed on businesses to cover such costs.
  101         3.A good faith estimate of the number of businesses likely
  102  to be impacted by the ordinance.
  103         4.Any additional information the board determines may be
  104  useful.
  105         (b)This subsection may not be construed to require a
  106  county to procure an accountant or other financial consultant to
  107  prepare the business impact estimate required by this
  108  subsection.
  109         (c) This subsection does not apply to an emergency
  110  ordinance enacted pursuant to this section.
  111         Section 3. Section 125.675, Florida Statutes, is created to
  112  read:
  113         125.675 Legal challenges to certain recently enacted
  114  ordinances.—
  115         (1) A county must suspend enforcement of an ordinance that
  116  is the subject of an action, including appeals, challenging the
  117  ordinance’s validity on the grounds that it is expressly
  118  preempted by the State Constitution or by state law or is
  119  arbitrary or unreasonable if:
  120         (a) The action was filed with the court no later than 90
  121  days after the adoption of the ordinance;
  122         (b) The complainant requests suspension in the initial
  123  complaint or petition, citing this section; and
  124         (c) The county has been served with a copy of the complaint
  125  or petition.
  126         (2) The court shall give cases in which the enforcement of
  127  an ordinance is suspended under this section priority over other
  128  pending cases and shall render a preliminary or final decision
  129  on the validity of the ordinance as expeditiously as possible.
  130         (3)In determining whether an ordinance is arbitrary or
  131  unreasonable, the court shall consider, but is not limited to,
  132  the following factors:
  133         (a)The extent to which the ordinance protects the health,
  134  welfare, safety, and quality of life of the residents of the
  135  county;
  136         (b)The impact of the ordinance on the personal rights and
  137  privileges of the residents of the county;
  138         (c)The total economic impact of the ordinance; and
  139         (d)The business impact estimate prepared by the county as
  140  required by s. 125.66(3).
  141         (4) This section does not apply to local ordinances enacted
  142  to implement the following:
  143         (a)Part II of chapter 163;
  144         (b)Section 553.73;
  145         (c)Section 633.202;
  146         (d)Ordinances required to comply with federal or state law
  147  or regulation;
  148         (e)Ordinances related to the issuance or refinancing of
  149  debt;
  150         (f)Ordinances related to the adoption of budgets or budget
  151  amendments; or
  152         (g)Ordinances required to implement a contract or an
  153  agreement, including, but not limited to, any federal, state,
  154  local, or private grant, or other financial assistance accepted
  155  by a county government.
  156         (5) The court may award attorney fees and costs as provided
  157  in s. 57.112.
  158         Section 4. Present subsections (4) through (8) of section
  159  166.041, Florida Statutes, are redesignated as subsections (5)
  160  through (9), respectively, and a new subsection (4) is added to
  161  that section, to read:
  162         166.041 Procedures for adoption of ordinances and
  163  resolutions.—
  164         (4)(a) Before the enactment of a proposed ordinance, the
  165  governing body of a municipality shall prepare a business impact
  166  estimate in accordance with this subsection. The business impact
  167  estimate must be posted on the municipality’s website on the
  168  same day the notice of proposed enactment is published pursuant
  169  to paragraph (3)(a) and must include all of the following:
  170         1.A summary of the proposed ordinance, including a
  171  statement of the public purpose to be served by the proposed
  172  ordinance, such as serving the public health, safety, morals,
  173  and welfare of the municipality.
  174         2.An estimate of the direct economic impact of the
  175  proposed ordinance on private for-profit businesses in the
  176  municipality, including the following, if any:
  177         a.An estimate of direct compliance costs businesses may
  178  reasonably incur if the ordinance is enacted;
  179         b.Identification of any new charge or fee on businesses
  180  subject to the proposed ordinance, or for which businesses will
  181  be financially responsible; and
  182         c.An estimate of the municipality’s regulatory costs,
  183  including an estimate of revenues from any new charges or fees
  184  that will be imposed on businesses to cover such costs.
  185         3.A good faith estimate of the number of businesses likely
  186  to be impacted by the ordinance.
  187         4.Any additional information the governing body determines
  188  may be useful.
  189         (b)This subsection may not be construed to require a
  190  municipality to procure an accountant or other financial
  191  consultant to prepare the business impact estimate required by
  192  this subsection.
  193         (c) This subsection does not apply to an emergency
  194  ordinance enacted pursuant to this section.
  195         Section 5. Section 166.0411, Florida Statutes, is created
  196  to read:
  197         166.0411 Legal challenges to certain recently enacted
  198  ordinances.—
  199         (1) A municipality must suspend enforcement of an ordinance
  200  that is the subject of an action, including appeals, challenging
  201  the ordinance’s validity on the grounds that it is expressly
  202  preempted by the State Constitution or by state law or is
  203  arbitrary or unreasonable if:
  204         (a) The action was filed with the court no later than 90
  205  days after the adoption of the ordinance;
  206         (b) The complainant requests suspension in the initial
  207  complaint or petition, citing this section; and
  208         (c) The municipality has been served with a copy of the
  209  complaint or petition.
  210         (2) The court shall give cases in which the enforcement of
  211  an ordinance is suspended under this section priority over other
  212  pending cases and shall render a preliminary or final decision
  213  on the validity of the ordinance as expeditiously as possible.
  214         (3)In determining whether an ordinance is arbitrary or
  215  unreasonable, the court shall consider, but is not limited to,
  216  the following factors:
  217         (a)The extent to which the ordinance protects the health,
  218  welfare, safety, and quality of life of the residents of the
  219  municipality;
  220         (b)The impact of the ordinance on the personal rights and
  221  privileges of the residents of the municipality;
  222         (c)The total economic impact of the ordinance; and
  223         (d)The business impact estimate prepared by the
  224  municipality as required by s. 166.041(4).
  225         (4) This section does not apply to local ordinances enacted
  226  to implement the following:
  227         (a)Part II of chapter 163;
  228         (b)Section 553.73;
  229         (c)Section 633.202;
  230         (d)Ordinances required to comply with federal or state law
  231  or regulation;
  232         (e)Ordinances related to the issuance or refinancing of
  233  debt;
  234         (f)Ordinances related to the adoption of budgets or budget
  235  amendments; or
  236         (g)Ordinances required to implement a contract or
  237  agreement, including, but not limited to, any federal, state,
  238  local, or private grant, or other financial assistance accepted
  239  by a municipal government.
  240         (5) The court may award attorney fees and costs as provided
  241  in s. 57.112.
  242         Section 6. Subsection (5) of section 163.2517, Florida
  243  Statutes, is amended to read:
  244         163.2517 Designation of urban infill and redevelopment
  245  area.—
  246         (5) After the preparation of an urban infill and
  247  redevelopment plan or designation of an existing plan, the local
  248  government shall adopt the plan by ordinance. Notice for the
  249  public hearing on the ordinance must be in the form established
  250  in s. 166.041(3)(c)2. for municipalities, and s. 125.66(5)(b)2.
  251  s. 125.66(4)(b)2. for counties.
  252         Section 7. Paragraph (a) of subsection (3) of section
  253  163.3181, Florida Statutes, is amended to read:
  254         163.3181 Public participation in the comprehensive planning
  255  process; intent; alternative dispute resolution.—
  256         (3) A local government considering undertaking a publicly
  257  financed capital improvement project may elect to use the
  258  procedures set forth in this subsection for the purpose of
  259  allowing public participation in the decision and resolution of
  260  disputes. For purposes of this subsection, a publicly financed
  261  capital improvement project is a physical structure or
  262  structures, the funding for construction, operation, and
  263  maintenance of which is financed entirely from public funds.
  264         (a) Prior to the date of a public hearing on the decision
  265  on whether to proceed with the proposed project, the local
  266  government shall publish public notice of its intent to decide
  267  the issue according to the notice procedures described by s.
  268  125.66(5)(b)2. s. 125.66(4)(b)2. for a county or s.
  269  166.041(3)(c)2.b. for a municipality.
  270         Section 8. Paragraph (a) of subsection (4) of section
  271  163.3215, Florida Statutes, is amended to read:
  272         163.3215 Standing to enforce local comprehensive plans
  273  through development orders.—
  274         (4) If a local government elects to adopt or has adopted an
  275  ordinance establishing, at a minimum, the requirements listed in
  276  this subsection, the sole method by which an aggrieved and
  277  adversely affected party may challenge any decision of local
  278  government granting or denying an application for a development
  279  order, as defined in s. 163.3164, which materially alters the
  280  use or density or intensity of use on a particular piece of
  281  property, on the basis that it is not consistent with the
  282  comprehensive plan adopted under this part, is by an appeal
  283  filed by a petition for writ of certiorari filed in circuit
  284  court no later than 30 days following rendition of a development
  285  order or other written decision of the local government, or when
  286  all local administrative appeals, if any, are exhausted,
  287  whichever occurs later. An action for injunctive or other relief
  288  may be joined with the petition for certiorari. Principles of
  289  judicial or administrative res judicata and collateral estoppel
  290  apply to these proceedings. Minimum components of the local
  291  process are as follows:
  292         (a) The local process must make provision for notice of an
  293  application for a development order that materially alters the
  294  use or density or intensity of use on a particular piece of
  295  property, including notice by publication or mailed notice
  296  consistent with the provisions of ss. 125.66(5)(b)2. and 3. and
  297  166.041(3)(c)2.b. and c. ss. 125.66(4)(b)2. and 3. and
  298  166.041(3)(c)2.b. and c., and must require prominent posting at
  299  the job site. The notice must be given within 10 days after the
  300  filing of an application for a development order; however,
  301  notice under this subsection is not required for an application
  302  for a building permit or any other official action of local
  303  government which does not materially alter the use or density or
  304  intensity of use on a particular piece of property. The notice
  305  must clearly delineate that an aggrieved or adversely affected
  306  person has the right to request a quasi-judicial hearing before
  307  the local government for which the application is made, must
  308  explain the conditions precedent to the appeal of any
  309  development order ultimately rendered upon the application, and
  310  must specify the location where written procedures can be
  311  obtained that describe the process, including how to initiate
  312  the quasi-judicial process, the timeframes for initiating the
  313  process, and the location of the hearing. The process may
  314  include an opportunity for an alternative dispute resolution.
  315         Section 9. Paragraph (c) of subsection (1) of section
  316  376.80, Florida Statutes, is amended to read:
  317         376.80 Brownfield program administration process.—
  318         (1) The following general procedures apply to brownfield
  319  designations:
  320         (c) Except as otherwise provided, the following provisions
  321  apply to all proposed brownfield area designations:
  322         1. Notification to department following adoption.—A local
  323  government with jurisdiction over the brownfield area must
  324  notify the department, and, if applicable, the local pollution
  325  control program under s. 403.182, of its decision to designate a
  326  brownfield area for rehabilitation for the purposes of ss.
  327  376.77-376.86. The notification must include a resolution
  328  adopted by the local government body. The local government shall
  329  notify the department, and, if applicable, the local pollution
  330  control program under s. 403.182, of the designation within 30
  331  days after adoption of the resolution.
  332         2. Resolution adoption.—The brownfield area designation
  333  must be carried out by a resolution adopted by the
  334  jurisdictional local government, which includes a map adequate
  335  to clearly delineate exactly which parcels are to be included in
  336  the brownfield area or alternatively a less-detailed map
  337  accompanied by a detailed legal description of the brownfield
  338  area. For municipalities, the governing body shall adopt the
  339  resolution in accordance with the procedures outlined in s.
  340  166.041, except that the procedures for the public hearings on
  341  the proposed resolution must be in the form established in s.
  342  166.041(3)(c)2. For counties, the governing body shall adopt the
  343  resolution in accordance with the procedures outlined in s.
  344  125.66, except that the procedures for the public hearings on
  345  the proposed resolution shall be in the form established in s.
  346  125.66(5)(b) s. 125.66(4)(b).
  347         3. Right to be removed from proposed brownfield area.—If a
  348  property owner within the area proposed for designation by the
  349  local government requests in writing to have his or her property
  350  removed from the proposed designation, the local government
  351  shall grant the request.
  352         4. Notice and public hearing requirements for designation
  353  of a proposed brownfield area outside a redevelopment area or by
  354  a nongovernmental entity. Compliance with the following
  355  provisions is required before designation of a proposed
  356  brownfield area under paragraph (2)(a) or paragraph (2)(c):
  357         a. At least one of the required public hearings shall be
  358  conducted as closely as is reasonably practicable to the area to
  359  be designated to provide an opportunity for public input on the
  360  size of the area, the objectives for rehabilitation, job
  361  opportunities and economic developments anticipated,
  362  neighborhood residents’ considerations, and other relevant local
  363  concerns.
  364         b. Notice of a public hearing must be made in a newspaper
  365  of general circulation in the area, must be made in ethnic
  366  newspapers or local community bulletins, must be posted in the
  367  affected area, and must be announced at a scheduled meeting of
  368  the local governing body before the actual public hearing.
  369         Section 10. Paragraph (a) of subsection (3) of section
  370  497.270, Florida Statutes, is amended to read:
  371         497.270 Minimum acreage; sale or disposition of cemetery
  372  lands.—
  373         (3)(a) If the property to be sold, conveyed, or disposed of
  374  under subsection (2) has been or is being used for the permanent
  375  interment of human remains, the applicant for approval of such
  376  sale, conveyance, or disposition shall cause to be published, at
  377  least once a week for 4 consecutive weeks, a notice meeting the
  378  standards of publication set forth in s. 125.66(5)(b)2. s.
  379  125.66(4)(b)2. The notice shall describe the property in
  380  question and the proposed noncemetery use and shall advise
  381  substantially affected persons that they may file a written
  382  request for a hearing pursuant to chapter 120, within 14 days
  383  after the date of last publication of the notice, with the
  384  department if they object to granting the applicant’s request to
  385  sell, convey, or dispose of the subject property for noncemetery
  386  uses.
  387         Section 11. Paragraph (a) of subsection (2) of section
  388  562.45, Florida Statutes, is amended to read:
  389         562.45 Penalties for violating Beverage Law; local
  390  ordinances; prohibiting regulation of certain activities or
  391  business transactions; requiring nondiscriminatory treatment;
  392  providing exceptions.—
  393         (2)(a) Nothing contained in the Beverage Law shall be
  394  construed to affect or impair the power or right of any county
  395  or incorporated municipality of the state to enact ordinances
  396  regulating the hours of business and location of place of
  397  business, and prescribing sanitary regulations therefor, of any
  398  licensee under the Beverage Law within the county or corporate
  399  limits of such municipality. However, except for premises
  400  licensed on or before July 1, 1999, and except for locations
  401  that are licensed as restaurants, which derive at least 51
  402  percent of their gross revenues from the sale of food and
  403  nonalcoholic beverages, pursuant to chapter 509, a location for
  404  on-premises consumption of alcoholic beverages may not be
  405  located within 500 feet of the real property that comprises a
  406  public or private elementary school, middle school, or secondary
  407  school unless the county or municipality approves the location
  408  as promoting the public health, safety, and general welfare of
  409  the community under proceedings as provided in s. 125.66(5) s.
  410  125.66(4), for counties, and s. 166.041(3)(c), for
  411  municipalities. This restriction shall not, however, be
  412  construed to prohibit the issuance of temporary permits to
  413  certain nonprofit organizations as provided for in s. 561.422.
  414  The division may not issue a change in the series of a license
  415  or approve a change of a licensee’s location unless the licensee
  416  provides documentation of proper zoning from the appropriate
  417  county or municipal zoning authorities.
  418         Section 12. Subsection (1) of section 847.0134, Florida
  419  Statutes, is amended to read:
  420         847.0134 Prohibition of adult entertainment establishment
  421  that displays, sells, or distributes materials harmful to minors
  422  within 2,500 feet of a school.—
  423         (1) Except for those establishments that are legally
  424  operating or have been granted a permit from a local government
  425  to operate as adult entertainment establishments on or before
  426  July 1, 2001, an adult entertainment establishment that sells,
  427  rents, loans, distributes, transmits, shows, or exhibits any
  428  obscene material, as described in s. 847.0133, or presents live
  429  entertainment or a motion picture, slide, or other exhibit that,
  430  in whole or in part, depicts nudity, sexual conduct, sexual
  431  excitement, sexual battery, sexual bestiality, or
  432  sadomasochistic abuse and that is harmful to minors, as
  433  described in s. 847.001, may not be located within 2,500 feet of
  434  the real property that comprises a public or private elementary
  435  school, middle school, or secondary school unless the county or
  436  municipality approves the location under proceedings as provided
  437  in s. 125.66(5) s. 125.66(4) for counties or s. 166.041(3)(c)
  438  for municipalities.
  439         Section 13. The Legislature finds and declares that this
  440  act fulfills an important state interest.
  441         Section 14. This act shall take effect October 1, 2022.
  442  
  443  ================= T I T L E  A M E N D M E N T ================
  444  And the title is amended as follows:
  445         Delete everything before the enacting clause
  446  and insert:
  447                        A bill to be entitled                      
  448         An act relating to local ordinances; amending s.
  449         57.112, F.S.; authorizing courts to assess and award
  450         reasonable attorney fees and costs and damages in
  451         certain civil actions filed against local governments;
  452         specifying a limitation on awards and a restriction;
  453         providing construction and applicability; amending s.
  454         125.66, F.S.; requiring a board of county
  455         commissioners to prepare a business impact estimate
  456         before the enactment of a proposed ordinance;
  457         specifying requirements for the posting and content of
  458         the estimate; providing construction and
  459         applicability; creating s. 125.675, F.S.; requiring a
  460         county to suspend enforcement of an ordinance that is
  461         the subject of a certain legal action if certain
  462         conditions are met; requiring courts to give priority
  463         to certain cases; specifying factors a court must
  464         consider in determining whether an ordinance is
  465         arbitrary or unreasonable; providing applicability;
  466         authorizing courts to award attorney fees and costs
  467         under certain circumstances; amending s. 166.041,
  468         F.S.; requiring a governing body of a municipality to
  469         prepare a business impact estimate before the
  470         enactment of a proposed ordinance; specifying
  471         requirements for the posting and content of the
  472         estimate; providing construction and applicability;
  473         creating s. 166.0411, F.S.; requiring a municipality
  474         to suspend enforcement of an ordinance that is the
  475         subject of a certain legal action if certain
  476         conditions are met; requiring courts to give priority
  477         to certain cases; specifying factors a court must
  478         consider in determining whether an ordinance is
  479         arbitrary or unreasonable; providing applicability;
  480         authorizing courts to award attorney fees and costs
  481         under certain circumstances; amending ss. 163.2517,
  482         163.3181, 163.3215, 376.80, 497.270, 562.45, and
  483         847.0134, F.S.; conforming cross-references; providing
  484         a declaration of important state interest; providing
  485         an effective date.