Land Use and Local Government Law and Litigation

The Law Office of Robert K. Lincoln, P.A.  provides legal services to private and public entities involved in complex land use disputes.  Hiring an attorney is an important decision that should not be based solely upon advertisements.  Before you decide, ask and I will provide free information about my experience and qualifications. 

Fla Supremes: Uniform Statutes Aren't

In Phantom of Brevard v. Brevard County, the Fla. Supreme Court put home rule over legislative authority by upholding a line of cases requiring the Legislature to use ridiculously specific magic words in order to preempt local authority.

A statute governing the regulation of fireworks that has as its purpose and intent section the following:

This chapter shall be applied uniformly throughout the state. Enforcement of
this chapter shall remain with local law enforcement departments and officials
charged with the enforcement of the laws of the state.

The Supreme Court held that this does not prevent local governments from adopting additional provisions that add regulatory requirements or restrictions to the statutory framework with this language:

However, focusing on potential differences caused by varying local requirements
confuses the issue. Because chapter 791 does not include an insurance coverage
standard or requirement, chapter 791 is not being applied disparately. In other
words, a state statute is not being applied in a non-uniform manner when a
locality enacts a regulation on a particular matter that is not addressed in the
statute. The statute is being applied uniformly. It is the local ordinance that
is creating any variance between counties.
In other words, the statutory requirement for uniform application is totally superfluous and ineffectual. It is a matter of fundamental " law that a local government could not modify the statute itself. The idea that a statute providing for uniform laws, or uniform application, does not evidence legislative intent to preempt the subject matter from local standards is a slap in the face to the legislature and makes a fetish out of home rule. While local government have home rule under the constitution, the constitution also clearly provides for the supremacy of the state legislature and the courts seem to have forgotten it - or at least have developed an unreasoning hostility to it.

LESSON: Legislative draftspeople simply need to start adding the phrase: "all regulation or setting of regulatory standards is hereby preempted and local government shall have no authority to adopt different standards" to pretty much every piece of environmental, land use, and business regulation that goes through their doors.

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