Preemption (contrast w/ Transfer) Flashcards
How are LGs preempted by the State?
- Expressly preempted or
- Impliedly preempted by assignment (DOT) or
- Pervasive regulation
If LG is expressly preempted by the State, can LG impose more stringent?
Yes so long as the State legislation doesn’t prohibit & LG isn’t acting contrary to other State legislation.
What’s a catchy phrase you might want to use in an essay about State preemption?
Cannot forbid what Legis has authorized or authorize what the Legislature has forbidden.
How can an LG avoid being taxed w/ Atty’s Fees if caught acting where expressly preempted?
FS 57.112 (2019)
No fees if:
1. LG is provided notice of preemption and
2. Acts w/i 30 days to w/draw or repeal the preempted ordinance.
How do Charters have an advantage over Munis to preempt?
If Charter provides for countywide regulation, Charter County preempts.
How can a CC implement regulatory preemption over Muni?
If not already in Charter, conduct Charter amendment approved by electors in single countywide vote.
Difference in voting for CC to:
* Preempt Muni regulatory auth
v.
* Transfer Muni services
Preempt = 1 countywide vote to amend Charter
Transfer = 2 votes (CC + Muni)
What is oddity about how a Charter can pass an Ordinance preempting Muni?
Takes 1 countywide vote to amend Charter to include Muni preemption.
How are motives important in whether a Muni can pass an Ordinance opting out of a Countywide service?
Munis are limited b/c their acts have to be for a muni purpose.
“Muni purpose” = a reas. relationship to citizs’ H,S +W.
Ask yourself if Muni’s motive for its citizs’ H, S + W or is it just a ploy to avoid the service?
Definition of “Muni Purpose.”
A reas. relationship to citizs’ H,S +W.
What limits Charter powers?
- Gen Law or
- Special act adopted by a referendum of its electors.
What limits N-C powers?
General + special law.
What limits Muni powers?
General + special law.
To impose impact fee countywide, state:
1) What the impact fee has to pay for,
2) How it is apportioned.
1) For capital facilities &
2) Not apportioned. Uniform basis.
Suppose County establishes countywide medical services program and imposes impact fee to fund the growth portion of the needed capital facilities and equip. Can a single city opt out?
The Polk County Emerg Medical Serv Impact Fee was upheld by t/c over an inconsistent muni ordinance when the muni itself did not provide emerg medical services. Was not appealed.
