Q&A – How Florida’s Home Rule Works

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Q&A – How Florida’s Home Rule Works

Each day I feature a listener question sent by one of these methods. 

Email: brianmudd@iheartmedia.com

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Today’s entry: We're all familiar with the 10th Amendment in general (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)

I was politely discussing with Commissioner Josh Simmons of Coral Springs on Twitter about natural rights and federal vs state power. He insisted there is a similar relationship, intrinsically, between Tallahassee and the counties and cities. Ie, the state capital functions like the federal government (limited enumerated power) and the counties/cities like the (state or the people with) broad power.

I had never heard this theory-- but I don't think it's correct, either in statute or by logical deduction. Have you ever covered this?

Bottom Line: The concept you’re discussing with Commissioner Simmons is what’s known as home rule. There are similarities to the Tenth Amendment to the US Constitution along with many differences. Notably, the U.S. Constitution provides no guidance as to the authority of local governments. In other words, there are no federally protected rights or authority granted for any local government excluding the District of Columbia. Local authority within states comes exclusively via what’s granted by states. 

If you ever hear the term “home rule” reported or discussed by local officials, it’s not just a rhetorical argument advanced by local governments when they’re concerned about overreach by the state. It’s constitutional law in Florida. Prior to 1968 local governments were allowed to create ordinances/policies without authorization from the state, however if at any point the state disapproved of the local policy, state officials retained the authority to overrule local decisions. That eventually brought about the 1968 Constitution Revision Committee’s “Home Rule” Constitutional amendment which was passed by voters. The amendment officially granted local governments defined authority independent of the state. 

Specific to counties here’s what the amendment declared:

  • (Section 1a): The state shall be divided by law into political subdivisions called counties. Counties may be created, abolished or changed by law, with provision for payment or apportionment of the public debt.

And for municipalities:

  • (Section 2a): Municipalities may be established or abolished and their charters amended pursuant to general or special law. When any municipality is abolished, provision shall be made for the protection of its creditors.

However, like many constitutional amendments, additional action to clarify details was needed by the state legislature. After years of legal battles and differences of opinion within the legislature, the Home Rules Power Act was enacted in 1973. The Act provided this additional defined authority: Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise power for municipal purposes except as otherwise provided by law.

The only defined exclusion from local rights was/is taxation. The state retains sole authority over changes in taxing authority. Once defined the proliferation of municipalities along with Florida growing population ensued. In addition to Florida’s 67 counties there are now 412 municipal governments in Florida. So back to your discussion with your city commissioner. He’s right that there are similarities between the tenth amendment to the US Constitution and Florida’s Home Rule Amendment. There are also vast differences. On a relative basis states retain more rights via the 10th Amendment than local governments do via Florida’s Home Rule Amendment. Examples include the ability for states to retain their own military and taxing authority. 

The pandemic has frequently tested the boundaries of Home Rule authority with local governments often at odds with the state on various policies from the ability to issue fines over mask mandates to the school mask mandates imposed by local school districts. Consistently the courts have found in favor of the state in these disputes. That’s been true during the period in which there was an emergency declaration in place, in addition to rulings since Governor DeSantis ended the emergency declaration in the state. This is to say that under the 10th Amendment to the Constitution where there’s gray territory legally, deference is generally paid to the sovereignty of the states. In the state of Florida under Home Rule, when there’s gray legal territory deference has also consistently been paid to the state. So yes, similar but different. 

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