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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 are repealed as limitations on power, or iii.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 Any other limitation of power upon any municipality is repealed.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