Preemption has become a hot topic on Key Biscayne, as the Florida Legislature moves to limit or even prohibit small governments from having any say over certain aspects of their respective municipalities.
So, the question must be asked: what is preemption, and what will it mean to Key Biscayne?
Preemption, in and of itself, is not necessarily a bad thing, and has been part of the relationship between federal, state and local governments since this nation was founded. There are numerous instances of federal laws invalidating state and local laws in the same area of law.
For example, the Voting Rights Act of 1965 was aimed at prohibiting state and local government laws that prevented African Americans from voting. Numerous federal and state laws set minimum standards such as minimum wage laws or prohibit additional regulation beyond the federal or state requirements. An example of this would be a law that forbids having a minimum wage that is higher than the state mandated minimum wage.
However, what we are seeing in Tallahassee right now goes beyond general protections of basic rights and has become an attempt to prevent local governments from effectively managing the issues that most directly impact their communities.
For example, in 2008, Florida’s lawmakers passed a law prohibiting municipalities from banning plastic bags in their communities. Why? For what purpose? A cynic might think that the ban was created at the urging of plastic manufacturers.
And he or she would probably be right.
Preemptions have become a way for special interests to “protect” their interests and prevent local communities from regulating those issues. The State has preempted us on firearms, plastic bags (as well as styrofoam products and straws), vacation rentals, and a host of other issues.
In 2022, the Florida legislature proposed a bill that would have required local municipalities to pay for economic impact studies for any proposed ordinance, and allow businesses to sue said municipalities on a claim for detrimental impact. While it died in 2022, it came back for consideration this session.
What’s worse, preemption bills seem to be multiplying. This legislative session, there are over 50 bills under consideration that would preempt municipalities from governing themselves on a wide variety of issues, including zoning laws, water quality, building permits, firearms and a host of others.
One bill proposed to prohibit local governments from requiring an initiative and referendum process for amendments to land developments regulations (SB856).
In Key Biscayne, that bill could negate the charter referendum measure that was passed in 2007, and again in 2010.
Now, I’ve been a vocal critic of the amendment and its ramifications. But, that was a decision made by the people of this community, not folks 400 miles away with little understanding of how our community works.
And that, really, is the problem with state preemption of laws that have such importance to how we manage our community.
Tallahassee has little understanding of the day to day operations of our Village. Their one size fits all approach to governance is, for the most part, intended to protect special interests at the expense of local communities. They have found a way to circumvent home rule and leave us at their mercy. It is wrong, but it is, currently, the state of the State of Florida.
So, what can we do? We can hold our representatives accountable. We can pay attention to the goings on upstate, and we can keep up the pressure when we see potential for laws that will preempt our right to govern for ourselves.
We may disagree amongst ourselves about how to run our Island. But, we cannot let Tallahassee preempt our government and tear apart our Island paradise.
MICHAEL W. DAVEY served as mayor of Key Biscayne from 2018-2022 and as a member of the Village Council from 2006-2014. He is an attorney focusing in real estate, employment law, probate matters and commercial litigation. Mr. Davey received his undergraduate degree from Harvard University, cum laude, and then his law degree from Fordham University in New York.