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Key West from Lighthouse

Who decides what happens in Key West? Hint: It’s not Key West

By Linda Grist Cunningham, editor and proprietor

Linda Grist Cunningham is editor and proprietor of Key West Island News and KeyWestWatch Media LLC. She and her husband, a park ranger at Fort Zach, live in Key West with their Cat 5s.

02/01/2020

Let’s see if I can write this without a belly laugh. Ready? Deep breath. Go. Wait. Once more. And, go:

Florida is a home rule state.

Didn’t work. I snort-laughed the coffee.

Florida is SUPPOSED to be a home rule state. The voters decided that in 1968. After years of battling the state power brokers in court, voters got home rule in 1973. And, for almost half a century, the Florida legislature has contorted itself into human pretzels clawing back local laws. There’s nothing quite as voracious as Tallahassee on a power grab.

Home rule in Florida is supposed to work like this: Local solutions crafted by local residents for the unique characteristics of the community. Tallahassee prefers one-size-fits-all.

The temptation is to blame the Republican political stranglehold for the attacks on home rule. Those GOP legislators and governors are no strangers to the preemptive takeover and they’ve ratcheted up the stakes in the past decade. But, Democrats led the state power grabs from the inception of home rule in 1968 through the GOP landslides of the late 1990s. Democrats controlled the Florida legislature in 1987, when the state preempted local control of firearms. In 2019, the legislature considered 45 bills curbing home rule powers. There are at least 16 introduced in the 2020 session; more are expected.

Preemption is the most common legal maneuver to strip power from locals and hand it back to the state. The legislature passes and the governor signs laws that preempt local decision-making. Originally preemption was a simple exercise in aligning state and local laws to eliminate inconsistencies. Think mostly a housekeeping thing. But, over the past two decades, preemption has risen from a civics lesson to a multi-level, often politically motivated, punitive battle between the state’s population centers, which tend to lean left, and the rest of Florida, which tends to lean right — and the Republican-controlled legislature, which is sympathetic to both the state and national conservatives.

The Florida legislature has raised the use of “preemption” to an art form. In addition to the old-fashioned housekeeping preemption and unfunded mandates, we now have “maximum,” “blanket” and “nuclear” preemption strategies. Many have punitive provisions that say local elected officials can be fined and jailed for opposing the state preemptions. Little of this is about good governance; it’s ideological power wars on steroids.

In less than a decade, for instance, the State of Florida has passed nearly 20 laws whose sole purpose is to preempt local legislation dealing with a particular topic –from plastic bags to bio-medical waste to vacation rentals and beyond. These targeted removals of discrete home rule powers do not follow the commonly understood parameters of preemption, in which the State adopts a general policy or uniform standards and declares its application to be exclusive across the state. States have become fond of using preemption as a means of creating a regulatory vacuum, adopting statutes whose sole purpose is to invalidate the decisions of locally elected governments whose policies differ from the preferences of the state legislative majority. Source: Local Solutions Support Center, February 2018; and Integrity Florida, January 2020

Some of the preemption battles could be moved to the “not exactly the end of the world” list. The 2020 legislature could pass preemptive laws as early as this weekend that will overturn Key West’s sunscreen ingredients ban. Gov. Ron DeSantis shocked his GOP legislature last year when he vetoed the bill that would have overturned Key West’s single-use, plastic straw ban. I’ve always believed we should limit single-use plastics and chemically questionable sunscreen, but I’m not going to lose sleep over either issue. I don’t use straws; I use zinc-based sunscreens; I use multi-use bags; and, I’m steadily eliminating single-use plastic at home as best I can. I don’t need a law to make me do the right things.

But, there are preemptions in place or in the pipeline that will change forever the character and governance of Key West. Tallahassee now controls or is in the process of controlling this sample short list:

  • Our tree canopy. Last year’s legislation not only approved no-permit tree removals prior to hurricanes, but opened the door to cutting down any tree with a Certified Tree Expert testament. Preemption emasculated Florida’s tree commissions.
  • Vacation home rentals. For the time being, many of Key West’s various restrictions are grandfathered, but the assault continues to allow anyone to rent anything anywhere. Some call that homeowner’s property rights.
  • Anti-discrimination ordinances. Four bills pending in the Florida legislature could override local laws in at least 20 local municipalities against LBGTQ discrimination, including one that specifically targets transgender minors.
  • E-transportation. DeSantis signed a preemption bill in June 2019, that allows e-bikes and scooters full access to sidewalks and streets. Anywhere a bike can go, an e-bike and e-scooter can.

Preemption is designed to do one thing: Ensure Tallahassee governs Key West. The legislature is well on its way to doing just that.

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Linda Grist Cunningham

Linda Grist Cunningham is editor and proprietor of Key West Island News and KeyWestWatch Media LLC. She and her husband, a park ranger at Fort Zach, live in Key West with their Cat 5s.

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