Law Changes Affecting Municipal Codes and Ordinances - December 1982LAW CHANGES
AFFECTING
MUNICIPAL CODES
AND
ORDINANCES
Prepared by
MUNICIPAL CODE CORPORATION
Tallahassee, Florida December, 1982
LAW CHANGES IN FLORIDA AFFECTING
CODES OF ORDINANCES
INTRO DUCTION
State law changes in Florida in recent years have greatly
affected many Charters and Codes of Ordinances heretofore or
hereafter adopted. The comments in the following pages of this
pamphlet are intended to assist the Municipal Attorney in pin-
pointing those areas of your Charter and Code of Ordinances,
which may be obsolete or which may require revision due to
those changes. These comments are based on the experience of
our editorial staff in working with Florida Codes of Ordinances.
Not all comments will pertain to your Code, nor does this pam-
phlet purport to include all state laws which might somehow
affect the language of your Code. Also included herein are a few
comments concerning federal law, case law, etc., which may be of
some interest.
The following comments are classified by "Charter" and "Code
of Ordinances" headings, and then under "Code of Ordinances"
they are classified alphabetically by subject area. The subject
areas, however, may not conform with the classification of your
Code.
1
CHARTER
Charters in Florida have been decimated by changes in the
state law. The adoption of the Municipal Home Rule Powers Act
(F.S. Ch. 166) in 1973 had the greatest impact. The following
Charter provisions have been affected by the Home Rule Act:
Ch.arrs n onto ♦ 1973: Pursuant to F.S.
§ 166.021, provisions of such Charters either i. still require
a referendum to amend, ii. are repealed as limitations on
power, or iii. have been converted to ordinances, depend-
ing on the subject matter. A referendum is re•uired_tg_
either amend or re eal r ovisions which ct affe
a. The exercise of extraterritorial powers;
• _• _I,/
b An area which includes lands within and without a
municipality;
c. The creation or existence of a municipality;
d. The terms of elected officers and the manner of their
election;
e. The distribution of powers among elected officers;
f. Matters prescribed by the Charter relating to appoint-
ive boards;
g. Any change in the form of government;
h. Any rights of municipal employees.
Any other limitation of power upon any municipality is
repealed. All other provisions have been converted to ordi-
nances, subject to modification or repeal as other ordinances.
A series of cases and Attorney General Opinions (see the
table at the end of this pamphlet) have attempted to
straighten out the ambiguities involved in F.S. § 166.021.
(2) Charters adopted after October 1, 1973: According to At-
torney General Opinion 075-223, the amendment of pro-
visions of such Charters requires a referendum regardless
of the subject matter. This would no doubt also be true of
amendments to those Charter amendments adopted by ref-
erendum after October 1, 1973.
3
(3) Charter amendments: F.S.
§ 166.031 is a supplements
Procedure for amending
Charter.
ments without a referendum, It permit certain m1e
such as: 1'c
a. Redefinition of boundaries;
b. Abolishment of
municipal departments;
c. Amendment of language judicially construed to be con-
trary to either the state or federal constitution.
(4) Procedural requirements
resolutions: F.S. for adoption of ordinances and
pro-
cedural requirements.
166.041 constitutes the
ted byquirements. Additional requirements
pro -
ordinance or Charter amendment
after are Octobere1,
1973. mendment after 1,
(5) Borrowing: F.S.
' thority for municipal b166.101 mowing seq.constitutes the full au -
(6) Taxation: F.S. § 166.201 et se
for municipal taxation. q' constitutes full authority
(7) Fiscal year; audit. F.S.
fiscal year and an annual audit. 241, 218.33
mandates the
(8) Eminent domain: F.S. § 166.401 provides authority for
eminent domain.
(9) Powers generally: F.S.sary for a Ch• 166 contains all powers neces-
municipality except for extraterritorial
In addition to the effect of thePowers.
following are typical Charter HOme visions affected by state law:
Rule Act on Charters, the
(1) Annexation or contraction
sedes all municipal Charter prand ordinance procedures: F.S. 171 super-
sedes
subject with some Per-
annexations).
minor exceptions (e.g. provisions on
voluntary
(2) Elections: The state election code is
areas and may be adopted by reference intive in other
areas. The following municipal election
been superseded: provisions
other
P isions have
a. Qualification of electors -
b. F.S. §§ 97.041, 166.032.
Registration of electors - F.S. § 98.041 et seq.
c. Resign -to -run law - F.S. § 99.012.
4
d. Opening and closing of polls - F.S. § 100.011.
e. Bond referendums - F.S. § 100.201 et seq.
f. Recall of members of governing body - F.S. § 100.361.
g. Procedures for voting - F.S. §§ 101.031, 101.041, 101.21,
101.635, 101.75.
h. Election code violations - F.S. Ch. 104.
i. Campaign financing - F.S. Ch. 106.
Also, a freeholder requirement for public office is unconsti-
tutional, Harper v. Virginia Board of Elections, 383 U.S.
663, and a freeholder requirement for bond election elec-
tors is unconstitutional, Fair v. Fair, 317 F. Supp. 859
(1970).
(3) Municipal courts: Such courts were to be abolished by Janu-
ary 3, 1977, pursuant to Fla. Const. Art. V, § 20(dX4). The
county court takes over jurisdiction.
(4) Tort actions: Notice to city in tort actions is governed by
the waiver of sovereign immunity statute (F.S. § 768.28).
(5) Taxation: Ad valorem tax appraisals and collections are
performed by the county pursuant to F.S. § 193.116.
(6) Alcoholic beverages: State limitations on number of li-
censes shall not affect or repeal special acts }elating to the
limitation by population and exceptions or exemptions from
such limitation by population of such licenses, F.S. § 561.20(4).
5
CODE OF ORDINANCES
The Home Rule Act has granted to the legislative body of each
municipality the power to enact legislation concerning any sub-
ject matter upon which the state Legislature may act, except:
(1) The subjects of annexation, merger, and exercise of extra-
territorial power, which require general or special law
pursuant to section 2(c), Art. VIII of the State Constitution;
(2) Any subject expressly prohibited by the Constitution;
(3) Any subject expressly preempted to state or county gov-
ernment by the Constitution or by general law; and
(4) Any subject preempted to a county pursuant to a county
charter adopted under the authority of section 1(g), 3, and
6(e), Art. VIII of the State Constitution.
Many of the following comments pertain to such express pro-
hibitions and areas preempted by state law.
General Provisions:
(1) Authority to codify: The specific authority to codify was
repealed in 1974. It is assumed that the Home Rule Act is
broad enough to authorize codification.
(2) General penalty: The limitation on penalties was repealed
in 1974. It is assumed that the maximum penalty now
permitted would be determined by the state law penalties
for misdemeanors (F.S. §§ 775.082, 775.083—$1,000/1 year
for first degree misdemeanors, $500/60 days for second
degree misdemeanors). Most municipalities use $500/60
days as the general penalty, and provide civil infractions
pursuant to F.S. Chs. 316 and 318 for traffic infractions.
(See AGO 081-76)
Administration:
(1) Mandatory retirement age: Federal law requires it to be at
least as high as 70. (Age Discrimination in Employment
Act, 29 U.S.C. 621 et seq.)
(2) Oaths: Oath required of persons on payroll, F.S. § 876.05.
7
(3) Insurance: Bids are required for insurance, F.S. § 112.08.
(4) Financial management and reporting: F.S. § 218.30 et seq.
contains certain mandatory requirements pertaining to fi-
nancial management and reporting.
(5) Travel expenses: F.S. § 112.061 applies to the extent of any
conflict with any special or local law.
(6) Code of ethics for public officers and employees: F.S. §
112.311 et seq. is mandatory, provided that municipalities
may impose additional or more stringent disclosure re-
quirements.
Alcoholic Beverages:
(1) Licensing: F.S. § 561.342(3) prohibits municipal taxing or
licensing of alcoholic beverages. Municipalities may regu-
late however, the hours of sale, location of business and
sanitary regulations (F.S. § 562.45(2)).
(2) Zoning: Sale of malt beverages for off -premises consump-
tion is not subject to municipal zoning (F.S. § 563.02(1Xa)).
(3) Public intoxication. Offenses concerning public intoxication
are prohibited (F.S. § 396.161).
Beaches and waterways:
(1) Boat safety: Local regulation of the operation of watercraft
is restricted (F.S. § 327.60).
Buildings and building regulations:
(1) Building codes: F.S. § 553.70 et seq. requires certain min-
imum building codes to be adopted. The specific authority
to adopt by reference was repealed in 1974. It is assumed
that the Home Rule Act is broad enough to authorize adop-
tion of technical codes by reference.
(2) Electrical code: F.S. § 553.19 contains certain minimum
electrical standards.
(3) Plumbing code: F.S. § 553.06 contains certain minimum
plumbing standards.
8
(2) Obscenity: F.S. § 847.013(4) preempts the field concerning
exposing persons under 17 years of age to harmful motion
pictures, exhibitions, shows, representations and presen-
tations. F.S. § 847.09(1) preempts the field concerning ex-
posing persons over 17 years of age to harmful motion
pictures, exhibitions, shows, representations and presenta-
tions.
(3) Contraband• Forfeiture of contraband is controlled by F.S.
§ 932.701 et seq.
Planning:
(1) Local planning act: The "Local Government Comprehen-
sive Planning Act of 1975" (F.S. § 163.3161 et seq.) is
mandatory in all municipalities. A local planning agency
was to be designated by no later than July 1, 1977 (F.S. §
163.3167(8)).
Police:
(1) Court costs for police training: F.S. § 943.25 authorizes
municipalities to assess additional court costs for police
training ($2.00 for conviction, bond estreature or forfeited
bail bond, with exception of parking violations).
Streets, sidewalks and other public places:
(1) Construction standards: F.S. § 335.075 refers to minimum
standards for the design, construction and maintenance of
all public streets, roads, highways, bridges, sidewalks, curbs
and curb ramps, crosswalks, where feasible, bicycle trails,
underpasses, and overpasses used by the public for vehicu-
lar and pedestrian traffic.
Subdivision regulations:
(1) Platting: F.S. § 177.011 et seq. contains certain mandatory
requirements for filing a plat with the county.
Taxation:
(1) Ad valorem taxes: Appraisals and collections are performed
by the county (F.S. § 193.116).
10
Tr.
(
Zoi
(.
Civil emergencies:
(1) Local disaster agency: F.S. § 252.38 designates the coun-
ties as local disaster agencies, which seems to remove mu-
nicipalities from the civil defense business.
(2) State of emergency. The chief of police is
in
emergency powers under F.S. §§ 870.041 - 8710.047 invent the
absence of a municipal ordinance designating the chief of
police or the mayor as the designated local authority under
such statute.
Elections: See Charter comments.
Fire prevention and protection:
(1) Enforcement. The local fire chief is authorized to enforce
laws and rules of state fire marshal, F.S. § 633.121.
(2) Explosives: F.S. Ch. 552 contains minimum standards for
the manufacture, distribution and use of explosives.
Food and food handlers:
(1) Milk and milk products: F.S. Ch. 502 supersedes all munic-
ipal regulations.
(2) Frozen desserts: F.S. Ch. 503 supersedes all municipal
regulations.
Health and sanitation:
(1) State sanitary code: F.S. § 381.101 authorizes municipali-
ties to adopt rules and regulations not inconsistent with
those adopted by the state department of health and reha-
bilitative services.
Offenses:
(1) Adoption of state law misdemeanors by reference. There is
case law upholding the right of municipalities to do this,
thus making it superfluous to include any offense covered
under state law if there is an ordinance adopting state law
misdemeanors by reference. See Jaramillo v. City of Home-
steacl, 322 So.2d 496 (Fla. 1975).
9
erning
notion
>resen-
ng ex -
notion
rsenta-
F.S.
rehen-
eq.) is
tgency
;F.S. §
iorizes
police
-feited
imum
nce of
curbs
trails,
ehicu-
latory
ormed
(2) Cigarette tax: Municipal levy is prohibited (F.S. § 210.03).
Municipalities still receive a share of the taxes from the
state pursuant to state law.
(3) Public service tax: Levy on cable service prohibited in 1977
unless tax was pledged to bond holders (F.S. § 166.231).
(4) Occupational license tax: F.S. Ch. 205 contains mandatory
regulations. There was a freeze on the limit of fees in effect
on October 1, 1971 �.S. § 205.043(1)(b)). The freeze was
partially lifted as of October 1, 1980.
Traffic and motor vehicles:
(1) Uniform Traffic Control Law: F.S. § 316.007 prohibits any
municipal ordinance on matters covered by such law un-
less expressly authorized.
(2) Motor vehicle noise: F.S. §§ 316.293 and 403.415 preempt
municipal regulations.
Zoning:
(1) Adoption procedure: F.S. §§ 163.3184 and 166.041 contain
mandatory adoption and amendment procedures.
11