The will of Florida Keys voters may be overturned by Florida legislature

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In the last general election, November 3, 2020, Key West voters voted to limit the size of cruise ships entering its three ports to 1,300 passenger ships. Bradenton State Senator Jim Boyd filed a preemption bill (SB 426), which would effectively change their vote.

The bill, for which there is a companion bill in the Florida House (H 267), would not allow local governments to dictate the size of a vessel entering its port.

SB 426 would prohibit a local government from restricting or regulating commerce in Florida’s deepwater seaports. The prohibition applies, but is not limited, to regulating or restricting a vessel’s type or size, source or type of cargo, or number, origin, or nationality of passengers. The bill expressly preempts all such matters to the state.
The bill further provides that if not otherwise preempted by federal or state law, the new section does not limit the authority of a port authority, port district, or port operation to:
– Regulate vessel movements within its jurisdiction,
– Establish fees and compensation for its services, or
– Adopt guidelines for minimum bottom clearance, for the movement of vessels, and for radio communications of vessel traffic.

The bill provides that such actions, however, may not have the effect of regulating or restricting a vessel’s type or size, source or type of cargo, or number, origin, or nationality of passengers, except as required to ensure safety due to the physical limitations of channels, berths, anchorages, or other port facilities.

The bill also voids any provisions of a county or municipal charter, ordinance, resolution, regulation, or policy preempted by the act and that existed before, on, or after the date the bill becomes law.

Regarding interstate commerce, the U.S. Supreme Court has discussed the historical development of and the modern test for any challenge to a state’s authority to regulate:
Modern precedents rest upon two primary principles that mark the boundaries of a State’s authority to regulate interstate commerce. First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce.

State laws that discriminate against interstate commerce face “a virtually
per se rule of invalidity.” State laws that “regulat[e] even-handedly to
effectuate a legitimate local public interest…will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.”

Although subject to exceptions and variations, these two principles guide the court in adjudicating cases, challenging state laws under the Commerce Clause.

Municipalities and counties derive broad home rule authority from the Florida Constitution and general law. Local governments have broad authority to legislate on any matter that is not inconsistent with federal or state law. A local government enactment may contravene state law if (1) the Legislature “has preempted a particular subject area” or (2) the local enactment conflicts with a state statute. Where state preemption applies, it prevents a local government from exercising authority in that area. Florida law recognizes two types of preemption: express and implied.

Express preemption requires a specific legislative statement; it cannot be implied or inferred. Clear language stating that intent must accomplish express preemption of a field by the Legislature. Where the Legislature expressly or specifically preempts an area, there is no problem with ascertaining what the Legislature intended. In cases determining the validity of ordinances enacted in the face of state preemption, the effect has been to find such ordinances null and void.



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