Florida Senate - 2022 CS for CS for SB 280
By the Committees on Rules; and Community Affairs; and Senator
Hutson
595-02155-22 2022280c2
1 A bill to be entitled
2 An act relating to local ordinances; amending s.
3 57.112, F.S.; authorizing courts to assess and award
4 reasonable attorney fees and costs and damages in
5 certain civil actions filed against local governments;
6 specifying a limitation on awards and a restriction;
7 providing construction and applicability; amending s.
8 125.66, F.S.; requiring a board of county
9 commissioners to prepare or cause to be prepared a
10 business impact estimate before the enactment of a
11 proposed ordinance; specifying requirements for the
12 posting and content of the estimate; providing
13 construction and applicability; creating s. 125.675,
14 F.S.; requiring a county to suspend enforcement of an
15 ordinance that is the subject of a certain legal
16 action if certain conditions are met; authorizing an
17 appellate court to lift a suspension under certain
18 circumstances; requiring courts to give priority to
19 certain cases; providing construction relating to an
20 attorney’s or a party’s signature; requiring a court
21 to impose sanctions under certain circumstances;
22 providing applicability; authorizing courts to award
23 attorney fees and costs and damages under certain
24 circumstances; amending s. 166.041, F.S.; requiring a
25 governing body of a municipality to prepare or cause
26 to be prepared a business impact estimate before the
27 enactment of a proposed ordinance; specifying
28 requirements for the posting and content of the
29 estimate; providing construction and applicability;
30 creating s. 166.0411, F.S.; requiring a municipality
31 to suspend enforcement of an ordinance that is the
32 subject of a certain legal action if certain
33 conditions are met; authorizing an appellate court to
34 lift a suspension under certain circumstances;
35 requiring courts to give priority to certain cases;
36 providing construction relating to an attorney’s or a
37 party’s signature; requiring a court to impose
38 sanctions under certain circumstances; providing
39 applicability; authorizing courts to award attorney
40 fees and costs and damages under certain
41 circumstances; amending ss. 163.2517, 163.3181,
42 163.3215, 376.80, 497.270, 562.45, and 847.0134, F.S.;
43 conforming cross-references; providing a declaration
44 of important state interest; providing an effective
45 date.
46
47 Be It Enacted by the Legislature of the State of Florida:
48
49 Section 1. Section 57.112, Florida Statutes, is amended to
50 read:
51 57.112 Attorney fees and costs and damages; arbitrary,
52 unreasonable, or expressly preempted local ordinances actions.—
53 (1) As used in this section, the term “attorney fees and
54 costs” means the reasonable and necessary attorney fees and
55 costs incurred for all preparations, motions, hearings, trials,
56 and appeals in a proceeding.
57 (2) If a civil action is filed against a local government
58 to challenge the adoption or enforcement of a local ordinance on
59 the grounds that it is expressly preempted by the State
60 Constitution or by state law, the court shall assess and award
61 reasonable attorney fees and costs and damages to the prevailing
62 party.
63 (3) If a civil action is filed against a local government
64 to challenge the adoption of a local ordinance on the grounds
65 that the ordinance is arbitrary or unreasonable, the court may
66 assess and award reasonable attorney fees and costs and damages
67 to a prevailing plaintiff. An award of reasonable attorney fees
68 or costs and damages pursuant to this subsection may not exceed
69 $50,000. In addition, a prevailing plaintiff may not recover any
70 attorney fees or costs directly incurred or associated with
71 litigation to determine an award of reasonable attorney fees or
72 costs.
73 (4) Attorney fees and costs and damages may not be awarded
74 pursuant to this section if:
75 (a) The governing body of a local governmental entity
76 receives written notice that an ordinance that has been publicly
77 noticed or adopted is expressly preempted by the State
78 Constitution or state law or is arbitrary or unreasonable; and
79 (b) The governing body of the local governmental entity
80 withdraws the proposed ordinance within 30 days; or, in the case
81 of an adopted ordinance, the governing body of a local
82 government notices an intent to repeal the ordinance within 30
83 days of receipt of the notice and repeals the ordinance within
84 30 days thereafter.
85 (5)(4) The provisions in this section are supplemental to
86 all other sanctions or remedies available under law or court
87 rule. However, this section may not be construed to authorize
88 double recovery if an affected person prevails on a damages
89 claim brought against a local government pursuant to other
90 applicable law involving the same ordinance, operative acts, or
91 transactions.
92 (6)(5) This section does not apply to local ordinances
93 adopted pursuant to part II of chapter 163, s. 553.73, or s.
94 633.202.
95 (7)(a)(6) Except as provided in paragraph (b), this section
96 is intended to be prospective in nature and applies shall apply
97 only to cases commenced on or after July 1, 2019.
98 (b) The amendments to this section effective October 1,
99 2022, are prospective in nature and apply only to ordinances
100 adopted on or after October 1, 2022.
101 Section 2. Present subsections (3) through (6) of section
102 125.66, Florida Statutes, are redesignated as subsections (4)
103 through (7), respectively, a new subsection (3) is added to that
104 section, and paragraph (a) of subsection (2) of that section is
105 amended, to read:
106 125.66 Ordinances; enactment procedure; emergency
107 ordinances; rezoning or change of land use ordinances or
108 resolutions.—
109 (2)(a) The regular enactment procedure shall be as follows:
110 The board of county commissioners at any regular or special
111 meeting may enact or amend any ordinance, except as provided in
112 subsection (5) (4), if notice of intent to consider such
113 ordinance is given at least 10 days before such meeting by
114 publication as provided in chapter 50. A copy of such notice
115 shall be kept available for public inspection during the regular
116 business hours of the office of the clerk of the board of county
117 commissioners. The notice of proposed enactment shall state the
118 date, time, and place of the meeting; the title or titles of
119 proposed ordinances; and the place or places within the county
120 where such proposed ordinances may be inspected by the public.
121 The notice shall also advise that interested parties may appear
122 at the meeting and be heard with respect to the proposed
123 ordinance.
124 (3)(a) Before the enactment of a proposed ordinance, the
125 board of county commissioners shall prepare or cause to be
126 prepared a business impact estimate in accordance with this
127 subsection. The business impact estimate must be posted on the
128 county’s website no later than the date the notice of proposed
129 enactment is published pursuant to paragraph (2)(a) and must
130 include all of the following:
131 1. A summary of the proposed ordinance, including a
132 statement of the public purpose to be served by the proposed
133 ordinance, such as serving the public health, safety, morals,
134 and welfare of the county.
135 2. An estimate of the direct economic impact of the
136 proposed ordinance on private for-profit businesses in the
137 county, including the following, if any:
138 a. An estimate of direct compliance costs businesses may
139 reasonably incur if the ordinance is enacted.
140 b. Identification of any new charge or fee on businesses
141 subject to the proposed ordinance or for which businesses will
142 be financially responsible.
143 c. An estimate of the county’s regulatory costs, including
144 an estimate of revenues from any new charges or fees that will
145 be imposed on businesses to cover such costs.
146 3. A good faith estimate of the number of businesses likely
147 to be impacted by the ordinance.
148 4. Any additional information the board determines may be
149 useful.
150 (b) This subsection may not be construed to require a
151 county to procure an accountant or other financial consultant to
152 prepare the business impact estimate required by this
153 subsection.
154 (c) This subsection does not apply to local ordinances
155 enacted to implement the following:
156 1. Part II of chapter 163;
157 2. Section 553.73;
158 3. Section 633.202;
159 4. Sections 190.005 and 190.046;
160 5. Ordinances required to comply with federal or state law
161 or regulation;
162 6. Ordinances related to the issuance or refinancing of
163 debt;
164 7. Ordinances related to the adoption of budgets or budget
165 amendments;
166 8. Ordinances required to implement a contract or an
167 agreement, including, but not limited to, any federal, state,
168 local, or private grant, or other financial assistance accepted
169 by a county government; or
170 9. Emergency ordinances.
171 Section 3. Section 125.675, Florida Statutes, is created to
172 read:
173 125.675 Legal challenges to certain recently enacted
174 ordinances.—
175 (1) A county must suspend enforcement of an ordinance that
176 is the subject of an action, including appeals, challenging the
177 ordinance’s validity on the grounds that it is expressly
178 preempted by the State Constitution or by state law or is
179 arbitrary or unreasonable if:
180 (a) The action was filed with the court no later than 90
181 days after the adoption of the ordinance;
182 (b) The complainant requests suspension in the initial
183 complaint or petition, citing this section; and
184 (c) The county has been served with a copy of the complaint
185 or petition.
186 (2) When there is an appeal to a case in which the
187 enforcement of an ordinance is suspended under this section, the
188 appellate court may lift the suspension if the local government
189 prevailed in the lower court.
190 (3) The court shall give cases in which the enforcement of
191 an ordinance is suspended under this section priority over other
192 pending cases and shall render a preliminary or final decision
193 on the validity of the ordinance as expeditiously as possible.
194 (4) The signature of an attorney or a party constitutes a
195 certificate that he or she has read the pleading, motion, or
196 other paper and that, to the best of his or her knowledge,
197 information, and belief formed after reasonable inquiry, it is
198 not interposed for any improper purpose, such as to harass or to
199 cause unnecessary delay, or for economic advantage, competitive
200 reasons, or frivolous purposes or needless increase in the cost
201 of litigation. If a pleading, motion, or other paper is signed
202 in violation of these requirements, the court, upon its own
203 initiative, shall impose upon the person who signed it, a
204 represented party, or both, an appropriate sanction, which may
205 include an order to pay to the other party or parties the amount
206 of reasonable expenses incurred because of the filing of the
207 pleading, motion, or other paper, including reasonable attorney
208 fees.
209 (5) This section does not apply to local ordinances enacted
210 to implement the following:
211 (a) Part II of chapter 163;
212 (b) Section 553.73;
213 (c) Section 633.202;
214 (d) Sections 190.005 and 190.046;
215 (e) Ordinances required to comply with federal or state law
216 or regulation;
217 (f) Ordinances related to the issuance or refinancing of
218 debt;
219 (g) Ordinances related to the adoption of budgets or budget
220 amendments;
221 (h) Ordinances required to implement a contract or an
222 agreement, including, but not limited to, any federal, state,
223 local, or private grant, or other financial assistance accepted
224 by a county government; or
225 (i) Emergency ordinances.
226 (6) The court may award attorney fees and costs and damages
227 as provided in s. 57.112.
228 Section 4. Present subsections (4) through (8) of section
229 166.041, Florida Statutes, are redesignated as subsections (5)
230 through (9), respectively, and a new subsection (4) is added to
231 that section, to read:
232 166.041 Procedures for adoption of ordinances and
233 resolutions.—
234 (4)(a) Before the enactment of a proposed ordinance, the
235 governing body of a municipality shall prepare or cause to be
236 prepared a business impact estimate in accordance with this
237 subsection. The business impact estimate must be posted on the
238 municipality’s website no later than the date the notice of
239 proposed enactment is published pursuant to paragraph (3)(a) and
240 must include all of the following:
241 1. A summary of the proposed ordinance, including a
242 statement of the public purpose to be served by the proposed
243 ordinance, such as serving the public health, safety, morals,
244 and welfare of the municipality.
245 2. An estimate of the direct economic impact of the
246 proposed ordinance on private for-profit businesses in the
247 municipality, including the following, if any:
248 a. An estimate of direct compliance costs businesses may
249 reasonably incur if the ordinance is enacted;
250 b. Identification of any new charge or fee on businesses
251 subject to the proposed ordinance, or for which businesses will
252 be financially responsible; and
253 c. An estimate of the municipality’s regulatory costs,
254 including an estimate of revenues from any new charges or fees
255 that will be imposed on businesses to cover such costs.
256 3. A good faith estimate of the number of businesses likely
257 to be impacted by the ordinance.
258 4. Any additional information the governing body determines
259 may be useful.
260 (b) This subsection may not be construed to require a
261 municipality to procure an accountant or other financial
262 consultant to prepare the business impact estimate required by
263 this subsection.
264 (c) This subsection does not apply to local ordinances
265 enacted to implement the following:
266 1. Part II of chapter 163;
267 2. Section 553.73;
268 3. Section 633.202;
269 4. Sections 190.005 and 190.046;
270 5. Ordinances required to comply with federal or state law
271 or regulation;
272 6. Ordinances related to the issuance or refinancing of
273 debt;
274 7. Ordinances related to the adoption of budgets or budget
275 amendments;
276 8. Ordinances required to implement a contract or an
277 agreement, including, but not limited to, any federal, state,
278 local, or private grant, or other financial assistance accepted
279 by a local government; or
280 9. Emergency ordinances.
281 Section 5. Section 166.0411, Florida Statutes, is created
282 to read:
283 166.0411 Legal challenges to certain recently enacted
284 ordinances.—
285 (1) A municipality must suspend enforcement of an ordinance
286 that is the subject of an action, including appeals, challenging
287 the ordinance’s validity on the grounds that it is expressly
288 preempted by the State Constitution or by state law or is
289 arbitrary or unreasonable if:
290 (a) The action was filed with the court no later than 90
291 days after the adoption of the ordinance;
292 (b) The complainant requests suspension in the initial
293 complaint or petition, citing this section; and
294 (c) The municipality has been served with a copy of the
295 complaint or petition.
296 (2) When there is an appeal to a case in which the
297 enforcement of an ordinance is suspended under this section, the
298 appellate court may lift the suspension if the local government
299 prevailed in the lower court.
300 (3) The court shall give cases in which the enforcement of
301 an ordinance is suspended under this section priority over other
302 pending cases and shall render a preliminary or final decision
303 on the validity of the ordinance as expeditiously as possible.
304 (4) The signature of an attorney or a party constitutes a
305 certificate that he or she has read the pleading, motion, or
306 other paper and that, to the best of his or her knowledge,
307 information, and belief formed after reasonable inquiry, it is
308 not interposed for any improper purpose, such as to harass or to
309 cause unnecessary delay, or for economic advantage, competitive
310 reasons, or frivolous purposes or needless increase in the cost
311 of litigation. If a pleading, motion, or other paper is signed
312 in violation of these requirements, the court, upon its own
313 initiative, shall impose upon the person who signed it, a
314 represented party, or both, an appropriate sanction, which may
315 include an order to pay to the other party or parties the amount
316 of reasonable expenses incurred because of the filing of the
317 pleading, motion, or other paper, including reasonable attorney
318 fees.
319 (5) This section does not apply to local ordinances enacted
320 to implement the following:
321 (a) Part II of chapter 163;
322 (b) Section 553.73;
323 (c) Section 633.202;
324 (d) Sections 190.005 and 190.046;
325 (e) Ordinances required to comply with federal or state law
326 or regulation;
327 (f) Ordinances related to the issuance or refinancing of
328 debt;
329 (g) Ordinances related to the adoption of budgets or budget
330 amendments;
331 (h) Ordinances required to implement a contract or an
332 agreement, including, but not limited to, any federal, state,
333 local, or private grant, or other financial assistance accepted
334 by a municipal government; or
335 (i) Emergency ordinances.
336 (6) The court may award attorney fees and costs and damages
337 as provided in s. 57.112.
338 Section 6. Subsection (5) of section 163.2517, Florida
339 Statutes, is amended to read:
340 163.2517 Designation of urban infill and redevelopment
341 area.—
342 (5) After the preparation of an urban infill and
343 redevelopment plan or designation of an existing plan, the local
344 government shall adopt the plan by ordinance. Notice for the
345 public hearing on the ordinance must be in the form established
346 in s. 166.041(3)(c)2. for municipalities, and s. 125.66(5)(b)2.
347 s. 125.66(4)(b)2. for counties.
348 Section 7. Paragraph (a) of subsection (3) of section
349 163.3181, Florida Statutes, is amended to read:
350 163.3181 Public participation in the comprehensive planning
351 process; intent; alternative dispute resolution.—
352 (3) A local government considering undertaking a publicly
353 financed capital improvement project may elect to use the
354 procedures set forth in this subsection for the purpose of
355 allowing public participation in the decision and resolution of
356 disputes. For purposes of this subsection, a publicly financed
357 capital improvement project is a physical structure or
358 structures, the funding for construction, operation, and
359 maintenance of which is financed entirely from public funds.
360 (a) Prior to the date of a public hearing on the decision
361 on whether to proceed with the proposed project, the local
362 government shall publish public notice of its intent to decide
363 the issue according to the notice procedures described by s.
364 125.66(5)(b)2. s. 125.66(4)(b)2. for a county or s.
365 166.041(3)(c)2.b. for a municipality.
366 Section 8. Paragraph (a) of subsection (4) of section
367 163.3215, Florida Statutes, is amended to read:
368 163.3215 Standing to enforce local comprehensive plans
369 through development orders.—
370 (4) If a local government elects to adopt or has adopted an
371 ordinance establishing, at a minimum, the requirements listed in
372 this subsection, the sole method by which an aggrieved and
373 adversely affected party may challenge any decision of local
374 government granting or denying an application for a development
375 order, as defined in s. 163.3164, which materially alters the
376 use or density or intensity of use on a particular piece of
377 property, on the basis that it is not consistent with the
378 comprehensive plan adopted under this part, is by an appeal
379 filed by a petition for writ of certiorari filed in circuit
380 court no later than 30 days following rendition of a development
381 order or other written decision of the local government, or when
382 all local administrative appeals, if any, are exhausted,
383 whichever occurs later. An action for injunctive or other relief
384 may be joined with the petition for certiorari. Principles of
385 judicial or administrative res judicata and collateral estoppel
386 apply to these proceedings. Minimum components of the local
387 process are as follows:
388 (a) The local process must make provision for notice of an
389 application for a development order that materially alters the
390 use or density or intensity of use on a particular piece of
391 property, including notice by publication or mailed notice
392 consistent with the provisions of ss. 125.66(5)(b)2. and 3. and
393 166.041(3)(c)2.b. and c. ss. 125.66(4)(b)2. and 3. and
394 166.041(3)(c)2.b. and c., and must require prominent posting at
395 the job site. The notice must be given within 10 days after the
396 filing of an application for a development order; however,
397 notice under this subsection is not required for an application
398 for a building permit or any other official action of local
399 government which does not materially alter the use or density or
400 intensity of use on a particular piece of property. The notice
401 must clearly delineate that an aggrieved or adversely affected
402 person has the right to request a quasi-judicial hearing before
403 the local government for which the application is made, must
404 explain the conditions precedent to the appeal of any
405 development order ultimately rendered upon the application, and
406 must specify the location where written procedures can be
407 obtained that describe the process, including how to initiate
408 the quasi-judicial process, the timeframes for initiating the
409 process, and the location of the hearing. The process may
410 include an opportunity for an alternative dispute resolution.
411 Section 9. Paragraph (c) of subsection (1) of section
412 376.80, Florida Statutes, is amended to read:
413 376.80 Brownfield program administration process.—
414 (1) The following general procedures apply to brownfield
415 designations:
416 (c) Except as otherwise provided, the following provisions
417 apply to all proposed brownfield area designations:
418 1. Notification to department following adoption.—A local
419 government with jurisdiction over the brownfield area must
420 notify the department, and, if applicable, the local pollution
421 control program under s. 403.182, of its decision to designate a
422 brownfield area for rehabilitation for the purposes of ss.
423 376.77-376.86. The notification must include a resolution
424 adopted by the local government body. The local government shall
425 notify the department, and, if applicable, the local pollution
426 control program under s. 403.182, of the designation within 30
427 days after adoption of the resolution.
428 2. Resolution adoption.—The brownfield area designation
429 must be carried out by a resolution adopted by the
430 jurisdictional local government, which includes a map adequate
431 to clearly delineate exactly which parcels are to be included in
432 the brownfield area or alternatively a less-detailed map
433 accompanied by a detailed legal description of the brownfield
434 area. For municipalities, the governing body shall adopt the
435 resolution in accordance with the procedures outlined in s.
436 166.041, except that the procedures for the public hearings on
437 the proposed resolution must be in the form established in s.
438 166.041(3)(c)2. For counties, the governing body shall adopt the
439 resolution in accordance with the procedures outlined in s.
440 125.66, except that the procedures for the public hearings on
441 the proposed resolution shall be in the form established in s.
442 125.66(5)(b) s. 125.66(4)(b).
443 3. Right to be removed from proposed brownfield area.—If a
444 property owner within the area proposed for designation by the
445 local government requests in writing to have his or her property
446 removed from the proposed designation, the local government
447 shall grant the request.
448 4. Notice and public hearing requirements for designation
449 of a proposed brownfield area outside a redevelopment area or by
450 a nongovernmental entity. Compliance with the following
451 provisions is required before designation of a proposed
452 brownfield area under paragraph (2)(a) or paragraph (2)(c):
453 a. At least one of the required public hearings shall be
454 conducted as closely as is reasonably practicable to the area to
455 be designated to provide an opportunity for public input on the
456 size of the area, the objectives for rehabilitation, job
457 opportunities and economic developments anticipated,
458 neighborhood residents’ considerations, and other relevant local
459 concerns.
460 b. Notice of a public hearing must be made in a newspaper
461 of general circulation in the area, must be made in ethnic
462 newspapers or local community bulletins, must be posted in the
463 affected area, and must be announced at a scheduled meeting of
464 the local governing body before the actual public hearing.
465 Section 10. Paragraph (a) of subsection (3) of section
466 497.270, Florida Statutes, is amended to read:
467 497.270 Minimum acreage; sale or disposition of cemetery
468 lands.—
469 (3)(a) If the property to be sold, conveyed, or disposed of
470 under subsection (2) has been or is being used for the permanent
471 interment of human remains, the applicant for approval of such
472 sale, conveyance, or disposition shall cause to be published, at
473 least once a week for 4 consecutive weeks, a notice meeting the
474 standards of publication set forth in s. 125.66(5)(b)2. s.
475 125.66(4)(b)2. The notice shall describe the property in
476 question and the proposed noncemetery use and shall advise
477 substantially affected persons that they may file a written
478 request for a hearing pursuant to chapter 120, within 14 days
479 after the date of last publication of the notice, with the
480 department if they object to granting the applicant’s request to
481 sell, convey, or dispose of the subject property for noncemetery
482 uses.
483 Section 11. Paragraph (a) of subsection (2) of section
484 562.45, Florida Statutes, is amended to read:
485 562.45 Penalties for violating Beverage Law; local
486 ordinances; prohibiting regulation of certain activities or
487 business transactions; requiring nondiscriminatory treatment;
488 providing exceptions.—
489 (2)(a) Nothing contained in the Beverage Law shall be
490 construed to affect or impair the power or right of any county
491 or incorporated municipality of the state to enact ordinances
492 regulating the hours of business and location of place of
493 business, and prescribing sanitary regulations therefor, of any
494 licensee under the Beverage Law within the county or corporate
495 limits of such municipality. However, except for premises
496 licensed on or before July 1, 1999, and except for locations
497 that are licensed as restaurants, which derive at least 51
498 percent of their gross revenues from the sale of food and
499 nonalcoholic beverages, pursuant to chapter 509, a location for
500 on-premises consumption of alcoholic beverages may not be
501 located within 500 feet of the real property that comprises a
502 public or private elementary school, middle school, or secondary
503 school unless the county or municipality approves the location
504 as promoting the public health, safety, and general welfare of
505 the community under proceedings as provided in s. 125.66(5) s.
506 125.66(4), for counties, and s. 166.041(3)(c), for
507 municipalities. This restriction shall not, however, be
508 construed to prohibit the issuance of temporary permits to
509 certain nonprofit organizations as provided for in s. 561.422.
510 The division may not issue a change in the series of a license
511 or approve a change of a licensee’s location unless the licensee
512 provides documentation of proper zoning from the appropriate
513 county or municipal zoning authorities.
514 Section 12. Subsection (1) of section 847.0134, Florida
515 Statutes, is amended to read:
516 847.0134 Prohibition of adult entertainment establishment
517 that displays, sells, or distributes materials harmful to minors
518 within 2,500 feet of a school.—
519 (1) Except for those establishments that are legally
520 operating or have been granted a permit from a local government
521 to operate as adult entertainment establishments on or before
522 July 1, 2001, an adult entertainment establishment that sells,
523 rents, loans, distributes, transmits, shows, or exhibits any
524 obscene material, as described in s. 847.0133, or presents live
525 entertainment or a motion picture, slide, or other exhibit that,
526 in whole or in part, depicts nudity, sexual conduct, sexual
527 excitement, sexual battery, sexual bestiality, or
528 sadomasochistic abuse and that is harmful to minors, as
529 described in s. 847.001, may not be located within 2,500 feet of
530 the real property that comprises a public or private elementary
531 school, middle school, or secondary school unless the county or
532 municipality approves the location under proceedings as provided
533 in s. 125.66(5) s. 125.66(4) for counties or s. 166.041(3)(c)
534 for municipalities.
535 Section 13. The Legislature finds and declares that this
536 act fulfills an important state interest.
537 Section 14. This act shall take effect October 1, 2022.