New Florida Law Provides Avenue to Challenge Enforcement of Local Government Ordinances

On June 29, 2023, Governor DeSantis signed into law Senate Bill 170 (SB 170). Starting on October 1, 2023, the new law allows city and county ordinances to be challenged in court on the basis that the ordinance is arbitrary or unreasonable, or preempted by state law, and requires suspension of enforcement of the ordinance during the legal challenge under certain circumstances. It will allow those that successfully challenge an ordinance as arbitrary or unreasonable to be awarded up to $50,000 in attorney’s fees from the city or county that enacted the ordinance. These key aspects of the new law are summarized below.

Legal Challenges to Ordinances

Florida cities and counties have broad legislative powers to enact local ordinances to promote the health, welfare, safety and quality of life of the local government’s residents. See Quiles v. City of Boynton Beach, 802 So. 2d 397 (Fla. 4th DCA 2001). However, SB 170 provides that any interested party can challenge a local ordinance in court as either preempted by state law, or as being arbitrary or unreasonable.

Suspension of Enforcement

SB 170 requires the local government to suspend enforcement of an ordinance that is subject to such a legal challenge, if the following conditions are met:

1. The action was filed with the court no later than 90 days after the adoption date of the ordinance;
2. The plaintiff requests suspension of the ordinance in the initial lawsuit complaint; and
3. The county or city has been served with a copy of the complaint.

The suspension of enforcement lasts until 45 days after the entry of the court’s order that finds the ordinance valid. That is unless the plaintiff appeals the decision and obtains a stay of enforcement pending appeal.

The provisions regarding stay of enforcement do not apply to certain types of ordinances. These include emergency ordinances, growth policy and land development regulations, building code ordinances, fire prevention code ordinances. The stay of enforcement provision also does not apply to ordinances required to comply with federal or state law or regulation, ordinances related to financial obligations, issuance of debt, or county or municipal budgets.

Priority Over Other Cases

Under SB 170, if a plaintiff seeks suspension of enforcement of the ordinance, the court must give the case priority on its docket over the court’s other cases and render a preliminary or final decision on the challenge to the ordinance as expeditiously as possible.

Attorney Fees

A key provision of the bill pertains to attorney fees. Under SB 170, courts are granted the authority to award up to $50,000 in attorney fees and costs to plaintiffs who successfully challenge a local ordinance on grounds of arbitrariness or unreasonableness. Notably, this provision applies only to ordinances adopted after October 1, 2023.

Business Impact Estimate

SB 170 mandates that counties and cities must produce a “business impact estimate” before passing ordinances. This business impact estimate must include a summary of the proposed ordinance. The estimate must also include a statement of the public purpose to be served by the proposed ordinance. It must additionally include an estimate of the direct economic impact of the proposed ordinance on private for-profit businesses in the city or county. This includes estimates of direct compliance costs, new charges and fees, the county or city’s regulatory costs, and the number of businesses likely impacted.

Conclusion

SB 170 creates a powerful new tool for interested parties to challenge city and county ordinances and to obtain suspension of enforcement while the challenge is pending under certain circumstances. It also incentivizes meritorious challenges by providing for recovery of attorney’s fees up to $50,000 by the plaintiff in a successful challenge. City and county governments in Florida, and the businesses affected by ordinances issued by such local governments, need to be aware of this new law and its potential impacts on the enforceability of local government ordinances that may be considered arbitrary, unreasonable or preempted by state law.