Legal Report, November 2016

General Counsel, Jennifer G. Ashton
Corbett White Davis & Ashton, P.A.

1. Classy Cycles, Inc. v. Bay County, 2016 Fla. App. LEXIS 14507; 41 Fla. L. Weekly D 2201 (Fla. 1st DCA 2016).  Express Preemption in Chapter 316, Florida Statutes.

Bay County and the City of Panama City Beach both adopted ordinances making it unlawful for any person to rent, lease, or hire within the county and city a motorcycle, motor scooter, moped, or any other two or three-wheeled, self-propelled vehicle, or solicit the same within the county and city unless the following requirements were met: (1) for each vehicle rented, all occupants were required to be outfitted with a florescent green highway safety vest that contained the word “RENTAL” on the back of the vest, and the occupants were not allowed to leave the rental business on the vehicle unless wearing said vest in a normal fashion; and (2) each business or entity owning and renting one of these vehicles was required to have minimum insurance coverage.  A business that operated several vehicle rental shops in the area sued the county and city for declaratory judgment that the ordinances were preempted by state law and therefore, were unlawful.  The trial court agreed with the local governments that the ordinances were valid.

On appeal, the First District Court of Appeal reversed the trial court’s ruling and found the ordinances unlawful.  The Court wrote that an ordinance may be inconsistent with state law if (1) the Florida Legislature has preempted a particular subject area, or (2) the local enactment conflicts with a state statute. Florida law recognizes two types of preemption: express and implied. Express preemption requires a specific legislative statement; it cannot be implied or inferred. Express preemption of a field by the Legislature must be accomplished by clear language stating that intent. Preemption is implied when the legislative scheme is so pervasive as to evidence an intent to preempt the particular area, and where strong public policy reasons exist for finding such an area to be preempted by the Florida Legislature.

In this case, Chapter 316, Florida Statutes, was very clear in providing that local ordinances regulating equipment on motorcycles and motor vehicles are preempted unless the statutes expressly say otherwise.  See Fla. Stat. § 316.007.  Therefore, the county and city’s requirements to wear a vest is a matter covered by Chapter 316 and expressly preempted.  Chapter 316 further contains specific security or insurance requirements for all motor vehicles.  The ordinances at issue here impose an insurance requirement on vehicles not otherwise required to maintain insurance.  Therefore, the county and city’s attempt to regulate insurance requirements was a matter covered by Chapter 316 and expressly preempted.

Finally, the Court dismissed the county and city’s argument that Fla. Stat. § 316.008(1)(t), which allows local governments to adopt "temporary or experimental regulations as may be necessary to cover emergencies or special conditions," applied to the ordinances thereby exempting them from any express preemption contained in Chapter 316. The local governments acknowledged that the ordinances were not temporary, no emergency conditions applied, and there was no experiment being conducted, but nonetheless argued that the ordinances addressed special conditions.  Specifically, the county and city argued the "special conditions" at issue were the untrained and unruly tourists operating the subject vehicles in a haphazard manner in a beach resort area of limited size.  While “special conditions” are not defined by chapter 316, the Court found that the local governments reading of the phrase was too broad.  The Court further noted that the “special conditions” which can be regulated by § 316.008(1)(t) are things unique to the local community like a road outage, a parade, a hurricane, a sporting event, a protest, a street festival, and the like. For better or for worse, tourists on a beach, even if misbehaving, do not meet the definition of a special condition in the State of Florida.  The Court concluded that any solution to the local governments' concerns with tourists on rented motor vehicles not wearing safety vests or having insurance lies with the Legislature.

2.   Advisory Opinion No. RQO 16-024,Palm Beach County Commission on Ethics (October 14, 2016). Cone of Silence.
The City of Boca Raton owns Western Golf Course and has decided to explore the possibility of a sale.  The City has proposed allowing all interested parties to submit a “best, last and final written bid” to buy the property.  Under the City’s Code of Ordinances, a sale of real estate does not have to comply with the City’s procurement code.

The City currently follows Palm Beach County’s Lobbyist Registration Ordinance.  The City requested an advisory opinion from the Palm Beach County Commission on Ethics on whether the cone of silence contained in the County’s Lobbyist Registration Ordinance applied to the sale of real estate.  The City argued that it should not because the City’s Code expressly excluded real estate from a competitive procurement requirement.  The City further argued that competitive solicitations traditionally involved the purchase of goods and services by a City, not the sale of real estate by a City. 

The Commission on Ethics wrote that the purpose of the cone of silence provision was to stop any improper influence of officials and authorized employees during the competitive solicitation process.  To achieve this goal of transparency, the cone of silence prohibits all oral communication outside of a public meeting “regarding a particular request for proposal, request for qualification, bid or any other competitive solicitation” between any person seeking the award of such competitive solicitation and any City Council Member or their staff or any employee authorized to act on behalf of the City Council.  The Commission on Ethics concluded that the cone of silence applies to all “competitive solicitations” including the City’s proposed sale of the Golf Course.  Because the City was soliciting competitive bids from parties interested in purchasing the land, the code of silence provision would go into effect at the submission deadline.  Any oral communication made outside of a public meeting between any person seeking the award of the sale/purchase contract and any City Council Member, their staff, or any employee authorized to act on behalf of the City Council would be prohibited after that time unless an exception applied.  The Commission on Ethics did clarify that the cone of silence would not prohibit contract negotiations between City staff and the intended awardee after the City Council made an initial choice of offers.  Therefore, where a governing body has made a preliminary choice of offers and directs staff to negotiate overall terms of the contract and bring the contract back to the governing body for a later approval, the cone of silence would not apply to those negotiations between the intended awardee and staff although the governing body itself would still be bound until the cone of silence terminated.

Finally, the Commission on Ethics confirmed that the code of silence would be in effect from the deadline to submit the bid until the time the City Council “awards or approves a contract, rejects all bids or responses, or otherwise takes some action to end the solicitation process.”