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Florida Bar Journal

The Effectiveness of Home Rule: A Preemption and Conflict Analysis

June, 2009 Misc

P rior to the 1968 revision of the Florida Constitution, local governments had only those powers expressly granted them by law.1 I n 1968, the Florida Constitution was amended to authorize local home rule powers for both cities and charter counties.2 T he first Florida Supreme Court case discussing the 1968 amendment significantly narrowed the amendment’s application and suggested that, unless a city’s action was clearly reasonable, any dispute regarding the action should be resolved against the local government.3 O n the heels of this decision, the legislature, in 1973, enacted the Municipal Home Rules Power Act (MHRPA), now codified in Ch. 166 of the Florida Statutes. The MHRPA guarantees that local governments retain governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services. This power may not be curtailed except as otherwise provided by law.4 T he MHRPA effectively foreclosed the preexisting presumption that local government action must be narrowly confined to only the immediate needs of the residents. The act further dictated that local governments should be allowed to act if not clearly directed otherwise by the state. Both the Florida Constitution and state statutes express a preference that, absent some necessity for a statewide enactment, local officials should deal with problems relating to the health and welfare of their citizens.

In the last 50 years, Florida’s population has swelled from around 2.5 million to approximately 18 million. With this substantial influx of residents, city and county governments are forced to become more involved in the passing of local laws facilitating services for their growing population and providing increased regulatory protection. In addition, the present budget crisis is creating an even greater need for local government expansion to include services and regulatory controls.5 T he increase in local legislation has tested the boundaries of the MHRPA. surveying the jurisprudence that has arisen on the issue of local versus state action, this article seeks to clarify the boundaries of the MHRPA and to identify those instances in which local action may not survive.

The MHRPA specifically states that local governments should be able to act unless otherwise provided by law. In Florida, courts have interpreted this provision to mean that local government action should only be prohibited if the action is either 1) preempted by state law or 2) in conflict with state law.6

Preemption
State preemption precludes a local government from exercising authority in a particular area and involves inconsistency with the state constitution or state statute. Preemption may exist in one of two ways: it may be either expressed or implied.

Even in cases of express preemption, it is unlikely that a specific portion of a state statute expressly declaring preemption will directly address the exact action contemplated by the local government. It is more likely that the state statute will demonstrate an intent to occupy a field of regulation. The court must then examine whether the local government action is within the scope of the preemption.

For instance, in Florida Power Corp. v. Seminole County, 579 So. 2d 105 (Fla. 1991), the Supreme Court declared that F.S. §366.04(1) expressly preempted the area of utility rate regulation, and thereby prohibited a county and city ordinance requiring Florida Power to bury its power lines as a result of a proposed road expansion. However, F.S. §366.04(1) (1991) did not unequivocally provide that the state and the state alone could require such an action. The statute did, however, provide that the Public Service Commission, a state agency, retained the “exclusive and superior. . . power to prescribe fair and reasonable rates and charges.”7 The court reasoned that the requirement to bury utility lines would end in higher operating costs for Florida Power, and would, thus, inevitably end in the state authorizing higher rates for consumers. As such, the court opined that the express wording of the statute preempted the action and prohibited the ordinances.

Accordingly, while preemption can be express, this does not necessarily mean that preemption will be explicit as to the breadth of its coverage or as to whether the preemption will preclude the specific proposed action.8 While no magic words exist signifying an express preemption, in determining whether express preemption exists, it is important to look for phrases signifying the state’s exclusive jurisdiction in a subject matter. This language should make clear that the legislature intended to preempt any local regulation on the subject. While express preemption may not be implied or inferred, whether that express preemption is broad enough to encompass the proposed action may be open to interpretation.9

Cases in which the courts have found express state preemption are rare.10 Taxation is one of the areas in which there has been an explicit finding of express preemption.11 Based on the constitutional protections afforded local governments, any ambiguity on the issue of express preemption should be resolved in favor of the local government.12 Such a presumption is consistent with the voters’ intent to provide broad home rule powers to cities and charter counties so that they may protect the welfare of their citizens. Accordingly, Florida courts have usually bowed to the voters’ intent that local governments should be able to act barring a clear directive by the state not to allow the action.

As previously discussed, the MHRPA states that a municipality may act unless expressly prohibited by law. Prior to 1994, Florida courts had gingerly suggested that preemption need not be explicit if the state statute was so pervasive as to display an obvious intent to prevent local legislation on the matter.13 In 1994, the First District recognized for the first time two types of state preemption — implied and expressed.14 It appears that the doctrine of implied preemption was created to address those situations in which the courts may have been troubled by the legislature’s failure to add words of express preemption in areas which, for all intents and purposes, seemed dominated by the state. However, a finding of implied preemption is based on a court’s gleaning of legislative intent and can also substantially infringe upon a local government’s home rule authority in violation of the direct mandate of the constitutional home rule provision and MHRPA. Thus, a finding of implied preemption should be reserved for the very narrow class of cases in which the state has legislated pervasively, thereby suggesting a strong policy behind limiting local action.15

Conflict
Beyond preemption, courts have recognized that state legislation may override local action if that action expressly conflicts with the legislation. To avoid conflicting with state legislation, local action must be able to coexist with the state legislation without frustrating its purpose.16 The determination of whether local legislation conflicts with state legislation can be a difficult one. Several cases have recognized that divergent local and state legislation can coexist without conflict. Thus, the mere fact that local legislation addresses similar subject matter as that addressed by state legislation will not precipitate a finding of conflict.

The first question that should be asked in deciding whether local action conflicts with a state statute or the Florida Constitution is whether the local action “frustrates the purpose” of a state statute. While no Florida case has expressly adopted this general inquiry as a necessary prong, federal courts have done so on several occasions.17 In addition, this test preserves the voters’ intent of local control while recognizing the state’s ultimate sovereignty.

The frustration of purpose test has been impliedly used to analyze local government action for conflict, if not expressly so, in City of Jacksonville v. American Environmental Services Inc., 699 So. 2d 255 (Fla. 1st DCA 1997). In a short opinion, the First District invalidated the city’s denial of a waste facility variance based on a finding of lack of need for a proposed waste facility.18 The court determined that a state statute mandating the need for regional waste facilities prohibited city action where the statute expressly forbade more stringent local rules on the matter and where the refusal frustrated the state’s purpose of encouraging the siting of regional waste facilities.

In contrast, the Second District, in Shelter v. State, 681 So. 2d 730 (Fla. 2d DCA 1996), found a local ordinance prohibiting nudity in commercial establishments could coexist with state public nudity statutes because nothing in the state statutes prevented the coexistence of the regulations. Further, in Lowe v. Broward County, 766 So. 2d 1199 (Fla. 4th DCA 2000), the Fourth District expanded on the “coexist” limitation, noting, “a conflict is whether one must violate one provision in order to comply with the other. Putting it another way, a conflict exists when two legislative enactments ‘cannot coexist.’”

As evidenced by the foregoing, instances in which conflict will be found to exist between local action and state law should occur only where the local action frustrates the purpose of a state law or constitutional provision and that frustration mandates that the regulations cannot coexist. This limited invalidation of local law is in accord with the clear directive of the MHRPA and the Florida Constitution requiring that local action should only be prohibited in rare cases involving a local government’s overreaching of power.

Historically, certain types of local action have been found to frustrate the purpose of state law, and, thus, conflict has resulted. Specifically, Florida jurisprudence makes clear that local action cannot 1) provide for more stringent regulation than the state legislation in violation of the express wording of the statute; 2) provide for a more stringent penalty than that allowed by state statute; 3) prohibit behavior otherwise allowed by state legislation; 4) allow behavior otherwise prohibited by state statute; or 5) provide for a different method for doing a particular act than the method proscribed by state legislation.

Generally, a local government can pass more stringent regulations than those provided for by statute. However, if the state legislation expressly forbids a stricter regulation or if the imposition of a stricter regulation frustrates the purpose of the statute, the local government must abstain. Illustrative of this point, in Lee County v. Lippi, 662 So. 2d 1304 (Fla. 2d DCA 1995), the Second District held that a Lee County ordinance which prohibited operation of a personal watercraft within certain areas was not preempted by F.S. §227.461, because the statute expressly stated: “[n]othing in this chapter shall be construed to prohibit any municipality or county. . . from regulating vessels resident in such municipality or county.. . . [a]ny such ordinance shall apply only in designated restricted areas which are properly marked and in need of shoreline protection.”19

As evidenced by the foregoing, the question of whether more stringent local government action conflicts with the less burdensome state statute is best answered through the use of the underlying statute’s language. In harmony with the Florida Constitution and the Florida Legislature’s intent to allow liberal local action, if no portion of the statute expressly forbids more stringent regulation, the local government should feel comfortable enacting the regulation.

In contrast to those cases narrowly applying the conflict doctrine to more stringent local government regulation, Florida courts have traditionally invalidated local ordinances that attempted to impose a stricter penalty than those imposed for the same action by the state statute. In Edwards v. State, 422 So. 2d 84, 86 (Fla. 2d DCA 1982), the Second District invalidated the City of Venice’s ordinance, which imposed a minimum mandatory sentence for drug possession as well as a mandatory fine. Further, in Thomas v. State, 614 So. 2d 468 (Fla. 1993), the Supreme Court struck down the City of Orlando’s ordinance imposing criminal penalties for the failure to possess certain bicycle safety equipment. The court noted that the city may not enact “an ordinance imposing criminal penalties for conduct essentially identical to that which has been decriminalized by the state.”20 Regardless of the voter and legislative intent to allow for broad home rule, these cases make clear that once the state has provided a penalty for certain behavior, local governments may not impose a stricter penalty than that which the state authorizes.

While given ample discretion in passing local law, local governments may not prohibit what the state would otherwise allow without frustrating the purpose of the state legislation. In Brevard County v. State Comm’n on Ethics, 678 So. 2d 906 (Fla. 1st DCA 1996), the First District prohibited Brevard County from passing an ordinance that would authorize an exemption to state law mandating that no public employee could engage in supplemental employment with a private company doing business with the employee’s local governmental agency. In doing so, the court noted that to find otherwise would frustrate the “concept of a uniform code of ethics, applicable to public officers and employees statewide, contemplated by the constitutional provision creating the Commission on Ethics and the implementing statutory enactment.”21 Thus, if local action goes so far as to provide an exemption to state regulation without the authority to do so, the action will be invalidated.

In addition, if local action prohibits what has been authorized by the state, the action likewise frustrates the purpose of the state regulation. In Metropolitan Dade County v. Mavco, Inc., 697 So. 2d 1283 (Fla. 3d DCA 1997), the Third District invalidated Dade County’s attempt to fine a contractor hired by Florida International University for failing to obtain a required county license where state law authorized the university to contract for supplies, utility services, and building construction without regulation or restriction by municipal or county charter or ordinance. As previously discussed, in City of Jacksonville, the First District invalidated the City of Jacksonville’s attempt to prohibit the building of a hazardous waste dump site in the city limits where state legislation expressed its intent to encourage such development.

In addition to the foregoing limitations, if a state statute provides a specific method for doing a particular act, a local government generally cannot provide for another way to do that same act. In some cases, however, the state legislation may be considered as only a supplemental method of accomplishing the same goal.22 The line between what constitutes a supplemental method as opposed to a prohibited method is a growing area of confusion and concern.

In Tallahassee Memorial Regional Medical Center v. Tallahassee Medical Center, Inc., 681 So. 2d 826 (Fla. 1st DCA 1996), the First District affirmed the invalidation of a local county ordinance requiring hospitals to pay the local ambulance service for all transports and then seek retribution from the patient after payment was made. Specifically, the court noted that F.S. §395.1041(3)(k) (1996) expressly required the patient to be primarily responsible for the payment of ambulance services, and thus, the court found that the statute erroneously required the ambulance service, not the hospital, to be the entity responsible for seeking payment for services rendered. The holding of Tallahassee Memorial suggests that a local ordinance may not provide an alternative method to one expressly contemplated by state statute.

In City of Boca Raton v. State, 595 So. 2d 25 (Fla. 1992), the Supreme Court authorized Boca Raton’s imposition of a special assessment, noting that, although the assessment had not been levied in accordance with a state statute authorizing municipal assessments and providing conditions upon which assessments could be levied, the statute expressly stated that it “shall be construed as an additional and alternative method for the financing of improvements.. . . ” Thus, the assessments were valid as the statute itself had authorized a municipality to rely on a different method in levying assessments.23 Once again, Boca Raton illustrates well the importance to be placed on the express language of the state statute. What separates Boca Raton from Tallahassee Memorial is the existence of express language contemplating alternative methods. Had that language not been part of the governing statute in Boca Raton, it is unclear whether the court would have ruled in the same manner.

Whether conflict exists between a local regulation and a state law is many times a difficult question. However, pursuant to the dictates of the MHRPA and the Florida Constitution, conflict should not be found unless the local government action intrudes upon clear intent established within the state legislation.

Recent Trends and Cases Discussing State Preemption/Conflict
In recent decisions, several Florida courts have narrowly construed state legislation so that it does not serve as a bar to local government home rule. In Phantom of Clearwater, Inc. v. Sarasota County, 894 So. 2d 1011 (Fla. 2d DCA 2005), the Second District considered whether the state fireworks regulation statute prohibited Sarasota County from passing a local fireworks regulation ordinance and ultimately concluded that the majority of the local ordinance should be upheld as it was neither preempted by, nor in conflict with, the state statute. In upholding the local ordinance, the court succinctly and correctly considered all possible legal avenues involved in challenging local action on the basis of existing state law. Specifically, the court first considered whether express preemption occurred. Once deciding that no express language of preemption existed, the court then considered the possibility of implied preemption. The court then undertook a provision-specific conflict analysis, comparing the challenged provisions against the state statute using the necessary preemption and conflict tests.

A second example of a Florida court’s deference to the authority of a local government is seen in City of Hollywood v. Mulligan, 934 So 2d 1238 (Fla. 2006), in which the Supreme Court held that a local ordinance authorizing the impoundment of vehicles involved in misdemeanor drug and prostitution offenses was not preempted by the Florida Contraband Forfeiture Act (FCFA), an act limited to felonies. The Supreme Court upheld the local action even where the FCFA expressly stated that local law enforcement agencies “shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes.”24 In holding so, the court noted that the “shall utilize” language of the statute applied only to felonies, not misdemeanors, pursuant to the remaining portions of the FCFA, and, thus, local governments were not prohibited from enacting misdemeanor impoundment laws.

One of the most troublesome doctrines used to strike down local legislation is the doctrine of implied preemption. As previously discussed, while the Constitution and the HRPA provide that a local government must be allowed to act unless expressly prohibited by law, the doctrine of implied preemption, recognized in Santa Rosa County and clarified in Tallahassee Memorial, may be used to invalidate local action that appears to be wholly legislated by the state even though no express preemption clause existed in the state statutes. Noting that the use of implied preemption could lead to disastrous results,the First District Court of Appeal warned:

In cases where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. Implied preemption, however, is a more difficult concept. The courts should be careful in imputing an intent on behalf of the Legislature to preclude a local elected governing body from exercising its home rule powers. Implied preemption should be found to exist only in cases where the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Legislature. The scope of the preemption should also be limited to the specific area where the Legislature has expressed their will to be the sole regulator.25

Recent cases suggest this warning has been heeded, as several Florida courts have considered the application of the implied preemption doctrine and rejected its use, finding that the doctrine is unfavored in Florida and must be applied only in a limited number of situations in which the state legislation is so pervasive as to evidence the intent of the state to be the sole regulator in that area.26 In fact, only one case since Tallahassee Memorial has relied on the doctrine of implied state preemption to invalidate local action. In Browning v. Sarasota Alliance for Fair Elections, 968 So. 2d 637 (Fla. 2nd DCA 2007), the Second District invalidated a local government ordinance which sought to require the use of a paper ballot to “back up” any electronic tallying. In doing so, the court held that the state had so pervasively regulated elections through the legislature’s enactment of the Election Code that it could serve no public purpose to allow for individual local action that would frustrate the Election Code’s purpose of voting uniformity throughout the state. The court specifically recognized the length and detail of the state Election Code and the strong public policy for having uniformity in the regulation of elections. The key distinctions between Browning and the cases rejecting the use of implied state preemption are the nature and scope of the governing state act as well as the public policy concerns involved.

In addition to limiting the use of implied preemption, Florida courts have demonstrated deference to the home rule doctrine by choosing to sever offending portions of the local regulation rather than striking the entire local action. Severability is a judicial doctrine that allows severance of an offending portion of a regulation if it is possible to strike only the offending provisions without frustrating the regulation’s purpose.27 If used appropriately, severability can preserve the intent of the local legislative action.

In Lowe v. Broward County, 766 So. 2d 1199 (Fla. 4th DCA 2000), while upholding the majority of a county domestic partner act which extended health benefits to partners of county employees, the court struck down a portion of the act, allowing domestic partners the same status as spouses and family members in making health care decisions for their incapacitated partners.28 In severing that part of the act, the court noted that a state statute gave priority to spouses and family members over “close friends” in making the necessary health care decisions, and, thus, the county ordinance conflicted with this mandate. Importantly, the court likewise noted that the act itself contained a severability clause which clearly indicated that any stricken provisions would not invalidate the act as whole. Further, in Phantom of Clearwater, the Second District severed one offending portion of the local regulation, noting that the ordinance contained a severability clause, which stated that “if any court finds that any [s]ection, [s]ubsection, sentence, clause, phrase or provision of the ordinance is invalid or unconstitutional, the ruling shall not be construed to render the remainder of the ordinance invalid or unconstitutional.”

The Penalties Exception to the Home Rule Doctrine
Several courts have expressly or impliedly construed art. I, §18 of the Florida Constitution as a limitation on the enforcement responsibilities of local governments. This section provides in pertinent part: “No administrative agency, except the Department of Military Affairs in an appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.”

The dictate of this section has not been easily applied in the context of home rule. It is clear the Florida Constitution prohibits administrative agencies from imposing penalties except as provided by law. What is not clear is what is meant by the term “penalty” and to what extent that term limits local enforcement bodies’ assessments of financial penalties.

In City of Venice v. Valente, 429 So. 2d 1241 (Fla. 2d DCA 1983), the Second District considered whether the city’s ordinance, which entitled the city to seek attorneys’ fees for legal services associated with the forced condemnation of unsafe private property, was preempted or in conflict with state action. In allowing the city to assess the fees, the court did not expressly address the application of art. I, §18 but did rule that it found no “constitutional impediment” existed to the ordinance. Thus, assessment of enforcement costs did not appear to violate the penalty provisions contained in art. I, §18. Conversely, the assessment of non-legislatively authorized fines has been determined in Broward County v. Plantation Imports, Inc., 419 So. 2d 1145 (Fla. 4th DCA 1982), where the Fourth District acknowledged, without addressing the concept of home rule, that art. I, §18 prevented local bodies from assessing fines that were not expressly authorized by a state action.

In City of Tampa for Use and Benefit of City of Tampa Code Enforcement Bd. v. Braxton, 616 So. 2d 554 (Fla. 2d DCA 1993), for the first time, the Second District considered the conflicting interrelationship between the home rule doctrine and the limitation of art. I, §18 on local administrative bodies’ assessment of penalties. In City of Tampa, the court considered the legality of the city’s $40 daily fine placed on private property found in violation of the city code. The court invalidated the fine, holding that once the city chooses to use a local government code enforcement board as contemplated by §162.09(3), it was prohibited from enforcing code ordinances by any other method than the ones described in the statute. The court recognized the traditional home rule deference given by F.S. §166.021(3); however, the court reasoned that art. I, §18’s limitation on the assessment of penalties, unless otherwise provided by law, directed that where a state statute governed the assessment of penalties, governance prohibited local action that did not act in the method proscribed by the state statute.

Similarly, in Stratton v. Sarasota County, 983 So. 2d 51 (Fla. 2d DCA 2008), the Second District again invalidated a local code provision authorizing the county to charge the cost of employee labor involved in the demolition of unsafe private property. As support for its decision, the court noted that local entities could not impose penalties except as provided by law, and the only state statute on the matter, §162.09, did not authorize a county to charge county employee labor involved in necessary public safety demolition. The court, however, did not specifically address Valente or the concept of home rule. In Goodman v. County Court in Broward County, Florida, 711 So. 2d 587, 588 (Fla. 4th DCA 1998), rev. denied, 727 So. 2d 905 (Fla. 1998), and Verdi v. Metropolitan Dade County, 684 So. 2d 870 (Fla. 3d DCA 1996), however, the Fourth and Third districts did not consider Ch. 162 a limitation on a local government’s power but a supplementary procedure which may be utilized by local government. Art. I, §18 clearly precludes the assessment of fines that are not statutorily authorized. Limitations on assessment of costs, however, are more problematic and do not necessarily follow the dictates of broad home rule.

Conclusion
In assessing the legality of local government action, decisions should not be made in a vacuum. The broader precepts and concepts of preemption and conflict should be considered. Cases that ignore these concepts fail to recognize the constitutional mandate from the people and the legislative will expressed in the MHRPA in favor of local self-government.

1 See City of Boca Raton v. State, 595 So. 2d 25, 27 (Fla. 1992).

2 Fla. Const. art. VIII, §1

3 See City of Miami Beach v. Fleetwood Hotel, 261 So. 2d 801, 803 (Fla. 1972).

4 Id.

5 For instance, the growing number of foreclosed and abandoned homes is requiring local government to step in and protect neighborhoods. See Alex Kotlowitz, All Boarded Up, N.Y. Times, Mar. 8, 2009, at 28.

6 See generally Tallahassee Mem’l Reg. Med. Ctr. v. Tallahassee Med. Ctr., 681 So. 2d 826 (Fla. 1st D.C.A. 1996).

7 Florida Power Corp. v. Seminole County, 579 So. 2d 105 (Fla. 1991).

8 See Tribune Co. v. Cannella, 458 So. 2d 1075 (Fla. 1984), appeal dismissed, 471 U.S. 1096 (1985).

9 See Hillsborough County v. Fla. Rest. Ass’n. Inc., 603 So. 2d 587, 590 (Fla. 2d D.C.A. 1992).

10 Id.; see also Barragan v. City of Miami, 545 So. 2d 252 (Fla. 1989); Santa Rosa County v. Gulf Power Co., 635 So. 2d 96, 100 (Fla. 1st D.C.A. 1994), rev. denied, 645 So. 2d 452 (Fla. 1994).

11 See City of Tampa v. Birdsong Motors, Inc., 261 So. 2d 1 (Fla. 1972).

12 C.f. HTS Ind., Inc. v. Broward County, 852 So. 2d 382 (Fla. 4th D.C.A. 2003) (recognizing that in areas historically legislated by the states, the courts must narrowly construe any express preemption clauses so that if an ambiguity exists as to preemption, nonpreemption should be found).

13 See Pace v. Bd. of Adjustment, 492 So. 2d 412 (Fla. 4th D.C.A. 1986), rev. denied, 501 So. 2d 1283 (Fla. 1987); Tribune Co., 458 So. 2d at 1075 (Fla. 1984).

14 See Santa Rosa County, 635 So. 2d at 100.

15 See Tallahassee Mem’l, 681 So. 2d at 831.

16 See Shetler v. State, 681 So. 2d 730 (Fla. 2d D.C.A. 1996), rev. denied, 680 So. 2d 424.

17 Hernandez v. Coopervision, 691 So. 2d 639 (Fla. 2d D.C.A. 1997) (a party seeking to challenge state action as in conflict with federal law must demonstrate that the state action “frustrates the purpose” of the federal law) citing, Bravman v. Baxter Healthcare Corp., 842 F. Supp. 747 (S.D.N.Y. 1994). See also Hines v. Davidowitz, 312 U.S. 52, 67 (1941).

18 City of Jacksonville v. American Environmental Services Inc., 699 So. 2d 255 (Fla. 1st D.C.A. 1997).

19 Lee County v. Lippa, 662 So. 2d 1304 (Fla. 2d D.C.A. 1995).

20 Thomas v. State, 614 So. 2d at 470 (Fla. 1993) (Fla. 1993); see also Wyche v. State, 619 So. 2d 231, 237 (Fla. 1993).

21 Brevard County v. State Comm’n on Ethics, 678 So. 2d 906 (Fla. 1st D.C.A. 1996).

22 See City of Boca Raton, 595 So. 2d 25, 30 (Fla. 1992).

23 Id. at 25.

24 City of Hollywood, 934 So. 2d at 1244.

25 Tallahassee Mem’l, 681 So. 2d at 831(citations omitted).

26 See Pinellas County v. City of Largo, 964 So. 2d 847, 853-54 (Fla. 2d D.C.A. 2007) (rejecting use of implied preemption where the state legislation was not so pervasive as to evidence an intent to be the sole regulator); Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011, 1019-20 (Fla. 2d D.C.A. 2005) (finding that state fireworks regulation was not so pervasive as to suggest implied preemption); GLA & Assoc., Inc. v. City of Boca Raton, 855 So. 2d 278, 282 (Fla. 4th D.C.A. 2003) (finding that the Florida Beach and Shore Preservation act did not so pervasively legislate the area of beach conservation as to preempt local protective ordinances); Palm Beach County v. Bellsouth Telecomm., Inc., 819 So. 2d 876, 878 (Fla. 4th D.C.A. 2002) (finding that local ordinance charging Bellsouth a land occupation fee was not impliedly preempted by state legislation); Lowe v. Broward County, 766 So. 2d 1199, 1207 (Fla. 4th D.C.A. 2000) (finding that a county ordinance recognizing domestic partner relations and allowing for benefits to be paid to domestic partners of county employees was not impliedly preempted by state marriage laws), rev. denied, 789 So. 2d 346 (Fla. 2001).

27 Martinez v. Scanlan, 582 So. 2d 1167, 1173 (Fla.1991) (quoting, Eastern Air Lines, Inc. v. Dep’t of Revenue, 455 So. 2d 311, 317 (Fla.1984)).

28 Lowe v. Broward County, 766 So. 2d 1199, 1207 (Fla. 4th D.C.A. 2000).

Judge James R. Wolf has served on the First District Court of Appeal since 1990. He is a former chair and executive council member of the City, County and Local Government Law Section of the Bar. He has previously served as general counsel for the Florida League of Cities.

Sarah Harley Bolinder is a senior law clerk for Judge James R. Wolf of the First District Court of Appeal. She is a 2005, magna cum laude, graduate of the Florida State University College of Law and a charter member of the First District Appellate American Inn of Court. Ms. Bolinder has been an adjunct professor at both Florida State University and Tallahassee Community College.

This column is submitted on behalf of the City, County and Local Government Section, Grant Williams Alley, chair, and Jewel W. Cole, editor.