Florida Republicans fight culture wars, home rule authority


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Florida lawmakers have yet to file legislation that would address the most serious lessons learned from the June collapse of Champlain Towers South in Surfside.

Florida lawmakers have yet to file legislation that would address the most serious lessons learned from the June collapse of Champlain Towers South in Surfside.

Miami Herald

When the GOP-controlled Florida Legislature returns to Tallahassee on Tuesday, the culture wars will be sucking up most of the oxygen in the room. It will be a shameful waste of lawmakers’ time in a state with real challenges — not the made-up problems they allegedly want to resolve.

Expect a lot of heat on issues designed to stir up Republican voters in an election year: abortion, school board control, critical race theory, immigration, the governor’s proposal for an election-fraud investigative office and a broad new attack on home rule.

But even in this increasingly far-right, social-issues landscape — territory that Gov. Ron DeSantis is mining on his way to a reelection bid and a likely presidential run — that last one, the attack on home rule, stands out for its potentially crippling effect on local governments. And because it’s a flat-out terrible idea.

Threat to home rule

The bill, which some in Tallahassee have called “the mother of all preemption bills,” would essentially give businesses free rein to sue local governments over regulations they don’t like. It has the support of Senate President Wilton Simpson, so it won’t be easy to defeat. But it must be, or local governments will be in serious trouble.

Home rule is the premise that local officials should make local laws, and state officials should make state laws. In other words: The best government is the one closest to the people, an idea Republicans have long espoused. It’s so important that it’s in Florida’s Constitution. Voters approved the constitutional revision in 1968, and the Legislature passed the Home Rule Powers Act in 1973.

But the current brand of Republican lawmakers has shown increasing boldness in undermining home rule with so-called preemption laws. Last year, the Florida Legislature overturned local measures approved in Key West — by more than 60% of voters — that limited the size of cruise ships that could come into the port. In the past, state lawmakers have also preempted efforts to ban retail plastic bags, Styrofoam containers and plastic straws (though DeSantis vetoed that one.)

Now the 2022 Legislature wants to preempt a whole new aspect of home rule with Senate Bill 620. (House Bill 569.)

The Senate bill, sponsored by Sen. Travis Hutson, a St. Augustine Republican, would allow businesses to sue local governments and claim damages if the government puts into place rules that they say cut into their bottom line by 15% or more.

Sure, sometimes local governments go too far. But this proposal is so broad, it risks swamping the whole local-government ship.

Under Hutson’s bill, a business could sue if its profits drop when the county takes an action even if it’s for the public good, like putting up a seawall that, say, blocks diners’ view from a restaurant, but also protects the whole area from flooding. A half-empty shopping mall could sue if the city allows a new business on an outparcel and the mall perceives it as causing a loss of revenue..

Local governments don’t have the resources to litigate lots of lawsuits at once. So the practical result of this proposal would be lots of out-of-court settlements. And who would pay for those? You would, of course, with your taxes. That’s money that could have gone to a new ball field or drainage or landscaping, stuff your taxes should actually pay for.

Even businesses that many in a community would likely agree should be regulated still could sue. A strip club that stays open until the wee hours, a bar with pounding live music, puppy mills, pain-management clinics — shouldn’t local government be allowed to impose laws to regulate them? What about the push in Miami Beach to change the cutoff for alcohol sales to 2 a.m. from 5 a.m.?

The Florida Association of Counties is against this proposal, calling it “one-size-fits-all regulations from Tallahassee.” The Florida League of Cities is against it, too. So is Equality Florida, the Florida AFL-CIO and the Friends of the Everglades. Those who support it include Associated Industries of Florida and the Florida Retail Federation, among others.

Hutson’s offices in Tallahassee and Palm Coast didn’t return our phone calls. But Rebecca O’Hara of the Florida League of Cities told the Editorial Board that the bill doesn’t even allow local governments to try to fix the issue. “Even if they didn’t mean to, they’re going to be liable,” she said. “It’s either pay up or get sued.”

As bad as this is, there still may be room for compromise. One idea that O’Hara mentioned is contained in Senate Bill 280, also sponsored by Hutson, that would require a “business impact statement” when a local government is going to enact a law that could affect a business. There might also be carve-outs for ordinances that apply to everyone, for noise or traffic or parking, say. Those seem like much more reasonable approaches that would stop the onslaught of lawsuits that could hamstring local governments. However, most reasonable — and responsible — would be for lawmakers to simply reject this misguided initiative.

Reasonableness, unfortunately, is not what the Legislature is known for. We’ll be watching this closely.

After Surfside

Last year, no event rattled South Florida more than the collapse of Champlain Towers South in Surfside, which killed 98 people. One would expect a slew of legislation proposed to make high-rise and condo buildings safer.

But, one would be wrong.

According to the Florida Society of Engineering, which has been monitoring bills filed, no bill specifically mentions Surfside within its context. Hard to believe. But some bills are tangentially dealing with the tragedy.

House Bill 771, “Powers of the Florida Building Commission,” would require the FBC to develop uniform standards for the maintenance and periodic inspection of existing buildings. Currently, condos must pass a 40-year inspection only in Miami-Dade and Broward.

Right now, the bill is in limbo. It has yet to be referred to any House committee, and there is not yet a Senate companion bill. Let’s see if it sees the light of day. It definitely should.

Sen. Ana Maria Rodriguez, R-Miami, who leads the Miami-Dade Delegation, told the Editorial Board that, spurred by the Surfside tragedy, she is proposing three bills related to condo association regulations.

“This is our first bite at the apple to really make some significant changes at the legislative level: Rodriguez said. Her bills would:

Create an education platform for condo-board
volunteers, who sometimes must deal with complicated financial and architectural issues.

Create a state database of every condo in Florida, where everything from inspection records to financials would be available to the public.

Create a Condo Board Task Force pilot program to address condo fraud. The task force, proposed by Miami-Dade State Attorney Katherine Fernandez Rundle, would correct gaps in the laws and establish criminal penalties for some irregularities in the administration of condos, such as electoral fraud, embezzlement of condo fees and falsifying signatures on ballots for condo boards of directors and conflicts of interest.

These are a good start, and there may be other bills filed to reduce the number of decades between building inspections and on condo-association reserves.

However, the Champlain Towers collapse should be considered a bellwether event, a tragic heads-up that should have lawmakers rallying around solutions. But, instead, they’re just nibbling around the edges of the problem, not tackling its more challenging aspects.

The good news is that a task force of the Florida Bar has done a lot of the heavy lifting for them, proposing solid condo-law reforms. These include:

Requiring more details within the maintenance plans that Florida law now requires condominium developers to produce for unit owners preparing to take over management of new buildings. Condo associations would be required to hire architects or engineers to update the reports every five years

Making it easier for unit owners to learn about building maintenance issues and to force boards to take action. Owners would have the right to ask courts to intervene if board members aren’t responding to repairs called for by inspection reports.

Tightening existing state laws on maintenance reserves, which now can be waived by a vote of unit owners. Developers also can waive reserve fees for the first two years of a building’s life, before owners take control. The task force recommended ending the developer waiver and also requiring a 75% vote by owners to waive reserves and, even then, only to an amount that would still fund half of the required savings for long-term maintenance.

Making it easier for condo associations to impose assessments for needed repairs without votes by unit owners.

None of this will be easy to achieve, but none of this will be achieved unless lawmakers take their jobs seriously. These are the quality-of-life issues they should be rallying around to find solutions. Instead, they are wasting their time — and our money — handcuffing local government while simultaneously fighting unnecessary culture wars.

Election integrity

One area where compliant Republican lawmakers may be less willing to do the governor’s bidding is in creating a needless state office of election-fraud investigation, staffed by 52 people and costing nearly $6 million — even though there’s little evidence of fraud, let alone the need for a heavily staffed and expensive office to investigate. This, after DeSantis crowed last year that the 2020 elections went off without a hitch.

This is one of those mischief-making proposals with the potential to do real damage to election integrity. It has a Trumpy “I plan to win at all costs in 2024” aura about it. GOP leaders rightly have been lukewarm on this one, giving us a small flicker of hope that true conservatives still exist.