Local Governments Could Pay Attorney’s Fees If They Regulate Preempted Issues

Apr 30, 2019

Senator Travis Hutson wants to award attorneys fees to the prevailing party in suits filed when a local government passes an ordinance violating a state preemption.
Credit Ryan Dailey / WFSU-FM

A bill moving through the legislature would put local governments on the hook for attorney’s fees if they pass rules expressly preempted by the state.

Sen. Travis Hutson (R-Palm Coast ) says if local governments ignore the state by creating regulations lawmakers have expressly preempted—they ought to be ready to pay attorney’s fees.

“When civil action is taken against a local government that enacts or enforces a regulation that has been preempted by the state, attorney fees accrue over the course of these proceedings. This bill would require any reasonable fees and costs associated with the civil proceedings may be awarded,” Hutson says.

Hutson’s measure raised a red flag for the Florida League of Cities. Rebecca O’Hara is the group’s deputy council.

“I think there may be a need to define what we mean by express preemption,” O’Hara said.

That’s a concern Sen. Perry Thurston (D-Fort Lauderdale) shared as the bill came up for discussion on the Senate floor. Hutson says the answer is simple. He says a bill by Sen. Keith Perry (R-Gainesville) that puts a five-year moratorium on bans on plastic straws, is a great example.

“Senator Perry has a bill that dealt with plastic straws yesterday that we dealt with. The state says there is a moratorium if that were to pass and so that would be an express preemption right there because the state says you cannot do this,” Hutson says.

But Thurston says the state isn’t always so clear.

“Under section 330.41 it prohibits local governments from enacting ordinances relating to drones, Thurston says. “And it also says it does not limit the local authority to regulation actions of nuisance effects caused by drones. If there as a lawsuit brought about that would that be the type of issue that would warrant attorney’s fees?”

Thurston says he wants to make sure local governments aren’t punished doing their best job to work between the lines. And that’s a concern Sen. Jose Javier Rodriguez (D-Miami) brought up during the bill’s first committee in the Senate.

“Even when there is express preemption that doesn’t mean that there’s not a good faith legal argument based on then existing law that can’t be presented,” Rodriguez says.

But Hutson says under his bill a local government would have a chance to address any questionable ordinances. After being informed a business or a person is planning to file suit, local governments will have 30 days to decide whether to repeal the regulation.

“And then if they choose they are going to take action on removing the ordinance another 30 days—so its 60 days to figure that out. I believe the business and local government will have those arguments whether it is expressly preempted or not. Attorneys will then be involved saying for the local government we should go to court because we have good solid ground here and then they’ll make that determination going forward as they get into a courtroom with a judge,” Hutson says.

The Senate has taken up the House version of the bill, but amended it to reflect the Senate language. Its awaiting a final vote in the Senate and will then head back to the House for a second look.