Limitations on Florida Police Powers

As discussed in the article “Florida Police Powers,” the State of Florida has the power to make laws to protect and promote the public interests. There are, however, limitations on the use of the power. The following is a very general overview of the issue (whole books are written on this). There are many, many shades of gray on each point listed, so understand this is just a “tip of the iceberg” overview. 

Inherent limitations on the police power. There are basic limitations on the power itself. Regulations enacted and enforced under a local government’s police powers: 

• Must advance a public interest. The laws must protect or promote the public interests, rather than protecting or promoting just the interests of individuals or groups.
• Must actually protect or promote. The provisions of the ordinance must be reasonably related to the public purpose it is supposed to be implementing. In other words, if the regulation is said to be to protect the public purpose of X, the actual provisions of the regulations must reasonably implement the protection of public interest X.
• Must be balanced. The public purpose advanced by the regulations must be of great enough public purpose to justify encroaching on private property or individual rights and the encroachment must not be unreasonably restrictive.

Constitutional limits on police power. The U.S. and Florida constitutions place significant limitations on the local governments’ exercise of police powers. The major provisions related to land development regulations include: 

• Prohibition of taking private property without just compensation;
• Protection of equal rights;
• Protection of due process rights; and
• Protection of freedom of speech.

 Constitutional limitations less often thought about as a limitation on local government police powers include the separation of powers clause (most often seen in issues of unlawful delegation of legislative powers) and, occasionally, the federal commerce clause. 

Federal Statutory Restrictions. There are laws adopted by the U.S. Congress that specifically or effectively limit local government’s regulatory powers. Included in these are laws that put the right to regulate certain issues exclusively in the hands of the federal government (federal pre-emption) and those that place restrictions on what or how local governments can regulate issues that have federal implications. 

State Statutory Restrictions. The State of Florida also can adopt laws that keep powers exclusively in the state’s hands and ones that restrict what or how the local government can regulate. The most immediately applicable example of the restriction on power is the state growth management laws, which not only require local governments to undertake comprehensive planning and land development regulation, but also dictate the specific ways this must be done. The legislature can also adopt what are known as special laws, which do not apply uniformly across the state, that may relieve or add to restrictions on the local government police power.

Common Law Restrictions. The decisions of state and federal courts also can restrict local government police powers. Not all cases are binding throughout the state and the cases often are limited to specific issues or fact patterns, but they are controlling, or certainly limiting, enough to be very important considerations in the drafting and use of land development regulations.

Local Restrictions. The local governments’ police powers are also limited by the restrictions the local governments place on themselves, through their legislative bodies or by public vote. Limitations placed in a local charter are one example. Limitations through the provisions of the adopted comprehensive plan, which are controlling, are also, extremely relevant, examples. The requirements that are in the land development regulations are, once adopted, also restrictions on the local governments’ ability to act; the provisions of the adopted code are what must be followed, with no discretion to go outside of the provisions to address issues in a different way without formal amendment.

 It should be understood that all these restrictions are very fact specific in their application and local governments are generally given fairly wide latitude in determining what and how they want to regulate. Which raises a final type of restriction – self-restraint.  As has been expressed in other articles, having the power to do something does not mean you should. Even if it would be legally possible to take an action, before taking that action, local governments, like everyone else, should ask if it is the best thing to do – if it works in the best way for the community, with the smallest amount of harm to the regulated individuals’ rights.

Florida “Police Powers”

When I first heard of governments acting under their “police powers,” I couldn’t figure out the use of the word “police;” I thought it must have to do with the power to have a police force. It was many years before I found out why they are called “police” powers. It is from the ancient Greek word “polis,” which means a city/state, like ancient Athens, with an elected representative government. So the “police powers” are the inherent powers of the city/state’s elected government to make laws for its citizens. In the United States, the relevant “polis” is the state, so the “police powers” are the inherent powers of each state to make laws for its citizens.

The police powers are reserved to the states (and are preserved by the 10th Amendment of the United States Constitution). The federal government does not have “police powers;” the federal government’s powers are limited to those specifically granted in the United States Constitution. The police powers that counties and cities in the state have are only those that have been delegated by the state.

So each state has police powers. That means that each state has the inherent or basic authority to make laws for the benefit of the citizens of the state. These powers are generally summarized as the power to make laws to protect or promote the general public health, safety, and welfare. Sometimes “morals” is also added to the list.

Those powers are very broad and can be used to create a very large variety of laws. They include the power to have a police force (making my guess about the origins of the term somewhat correct) and, more related to the purposes of this website, include the power to have zoning and land development regulations.

There are, however, limitations on how far the police powers can go in regulating. For more on the limitations, see the separate article on “Limitations on Florida Police Powers.”

So the State of Florida has the authority, through its inherent “police powers” to create laws regulating the use and development of land, as long as those laws fall within the applicable limitations. How Florida cities and counties get their powers to regulate the use and development of land at the local level is discussed in a series of articles under the category “State Enabling Statutes.”

Powers of Local Governments to Regulate Land

Local governments (cities and counties), as entities of the state,  have the powers granted to them by the State Constitution and by the State Legislature, as reflected in the Florida Statutes.

Local Governments’ Powers Under the State Constitution

 The State Constitution, in Article VIII, addresses the powers of local governments. As to counties, it states, in section 1(f) and (g):

• “NON-CHARTER GOVERNMENT. Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by general law, county ordinances not inconsistent with general or special law, but an ordinance in conflict with a municipal ordinance shall not be effective within the municipality to the extent of such conflict.”
• “CHARTER GOVERNMENT. Counties operating under county charters shall have all powers of local self-government not inconsistent with general law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not inconsistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances.”

As to municipalities, Article VIII, section 2, of the state Constitution states:

• POWERS. 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 any power for municipal purposes except as otherwise provided by law.”

Powers granted to certain local governments under earlier versions of the State Constitution stay in effect, under subsection 6(e). Specifically:

• Powers granted to the City of Jacksonville. Article VIII, subsection 6(e), Note 1, Florida Constitution. 
• Powers granted to the City of Key West. Article VIII, subsection 6(e), Note 2, Florida Constitution.
• Powers granted to Dade County. Article VIII, subsection 6(e), Note 3, Florida Constitution.
• Powers granted to Hillsborough County. Article VIII, subsection 6(e), Note 4, Florida Constitution. 

The powers of local governments to regulate, including the power to regulate land uses and development, are also addressed in the Florida Statutes.

Counties’ Powers Under Florida Statutes

Chapter 125, Florida Statutes, addresses counties. Section 125.01(1), Florida Statutes, lists the powers specifically granted to counties. Those most related to land use and development regulations provide that, to “the extent not inconsistent with general or special law,” counties have the power to:

• “Prepare and enforce comprehensive plans for the development of the county.” (Section 125.01(1)(g), Florida Statutes)
• “Establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public.” (Section 125.01(1)(h), Florida Statutes)
  • Case addressing statute provision: Townley v. Marion County, 343 So. 2d 1312 (Fla. 1st DCA 1977).
• “Adopt, by reference or in full, and enforce housing and related technical codes and regulations.” (Section 125.01(1)(i), Florida Statutes)
• “Establish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas of the county pursuant to general law.” (Section 125.01(1)(o), Florida Statutes)
• “Enforce the Florida Building Code, as provided in s. 553.80, and adopt and enforce local technical amendments to the Florida Building Code, pursuant to s. 553.73(4)(b) and (c).” (Section 125.01(1)(cc), Florida Statutes)
• “Provide fire protection, including the enforcement of the Florida Fire Prevention Code, as provided in ss. 633.022 and 633.025, and adopt and enforce local technical amendments to the Florida Fire Prevention Code as provided in those sections and pursuant to s. 633.0215.” (Section 125.01(1)(d), Florida Statutes)
• “Establish and administer programs of housing, slum clearance, community redevelopment, conservation, flood and beach erosion control, air pollution control, and navigation and drainage and cooperate with governmental agencies and private enterprises in the development and operation of such programs.” (Section 125.01(1)(j), Florida Statutes)
• “Provide and regulate waste and sewage collection and disposal, water and alternative water supplies, including, but not limited to, reclaimed water and water from aquifer storage and recovery and desalination systems, and conservation programs.” (Section 125.01(1)(k)1., Florida Statutes)
• “Provide and operate air, water, rail, and bus terminals; port facilities; and public transportation systems.” (Section 125.01(1)(l), Florida Statutes)
• “Provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities; eliminate grade crossings; regulate the placement of signs, lights, and other structures within the right-of-way limits of the county road system; provide and regulate parking facilities; and develop and enforce plans for the control of traffic and parking.” (Section 125.01(1)(m), Florida Statutes)
• “Perform any other acts not inconsistent with law, which acts are in the common interest of the people of the county, and exercise all powers and privileges not specifically prohibited by law.” (Section 125.01(1)(w), Florida Statutes)

Subsections 125.01(3)(a) and (b), Florida Statutes, state that the powers listed are to not be considered exclusive or restrictive, are to be considered to incorporate all implied powers necessary to carry out the listed powers, and the powers provisions are to be liberally interpreted to effectively carry out the statute purposes and to allow the broad exercise of the home rule powers authorized by the State Constitution.

Additional relevant powers granted to counties include the power to:

• “[A]dopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances.” (§125.01055, Florida Statutes)
• “[A]pprove or disapprove the location, establishment, construction, and operation of privately owned airports within the county.” (§125.012(20), Florida Statutes)
• “[E]nforce the Florida Building Code and the Florida Fire Prevention Code … and, at its discretion, to adopt local technical amendments to the Florida Building Code … and … the Florida Fire Prevention Code … to provide for the safe construction, erection, alteration, repair, securing, and demolition of any building within its territory outside the corporate limits of any municipality.” (§125.56(1), Florida Statutes)

Counties are specifically prohibited from:

• Adopting ordinances relating to the possession or sale of ammunition. (§125.0107, Florida Statutes)
• Requiring the operation of a residence in an area zoned for residential use as a “family day care home” to secure a special exemption, use permit, or waiver. (Section 125.0109, Florida Statutes)

Consistent with the application of police powers (see “Florida Police Powers“) and the limitations on the exercise of those police powers (see “Limitations on Florida Police Powers“), all of the rules and regulations adopted by counties must be “just and reasonable and consistent with public interest ….” §125.018, Florida Statutes.

 Municipalities’ Powers Under the Florida Statutes

The powers of municipalities are a little simpler to state. Municipalities have the powers necessary “to enable them to conduct municipal government, perform municipal functions, and render municipal services” and may exercise any power that may be exercised by the State of Florida or by a Florida county, except when expressly prohibited by law. §166.021(1) and (2), Florida Statutes. The legislative body of each municipality has the power to enact legislation on any subject matter upon which the State of Florida Legislature can act, except those subjects expressly prohibited by the constitution, expressly preempted to the state or county government by the constitution or by general law, or preempted to a county pursuant to a county charter. §166.021(3), Florida Statutes. The statutory provisions are to be interpreted and applied so as to give municipalities the broad exercise of home rule powers granted by the constitution. §166.021(4), Florida Statutes.

Like Counties, municipalities are also authorized to “adopt and maintain in effect any law, ordinance, rule, or other measure that is adopted for the purpose of increasing the supply of affordable housing using land use mechanisms such as inclusionary housing ordinances.” §166.04151, Florida Statutes. Like counties, municipalities are specifically prohibited from:

• Adopting ordinances relating to the possession or sale of ammunition. (§166.044, Florida Statutes)
• Requiring the operation of a residence in an area zoned for residential use as a “family day care home” to secure a special exemption, use permit, or waiver. (Section 166.0445, Florida Statutes)

Summary

In summary:

• Counties have all the powers of self-government not inconsistent with federal or state constitutional limits or general or special laws that are in the common interest of the people of the county.
• Municipalities have all the powers necessary to carry out municipal functions as well as the same powers as the State of Florida or a county, except as expressly prohibited by the constitution or expressly preempted to the state or the county.

So counties and municipalities have very broad powers, including broad powers to regulate land. As discussed in other articles, however, having the power doesn’t mean that it should always be exercised; there is something to the idea  of “don’t do it just because you can.”