LTC 474-2019 Third District Court of Appeal Ruling in Florida Retail Federation, Inc. v. City of Coral Gables (Fla. 3d DCA Case No. 3D17-0562)MIAMI BEACH LETTER TO COMMISSION OFFICEOI 474-2019
LTC No.#
TO:
FROM:
cc:
DATE:
Mayor Dan Gelber and Members of the City Commission
Raul J. Aguila, City Attorney~ !lvVI Qg-: f-
Jimmy L. Morales, City Manager
Rafael E. Granado, City Clerk
August 26, 2019
SUBJECT: Third District Court of Appeal Ruling in Florida Retail Federation, Inc. v.
City of Coral Gables (Fla. 3d DCA Case No. 3D17 -0562)
The purpose of this memorandum is to advise the City Commission of the Third District Court of
Appeal's recent ruling in litigation challenging the Coral Gables Polystyrene Ordinance. In
summary, the District Court (i) reversed the trial · court ruling finding the Coral Gables
Polystyrene Ordinance enforceable, and (ii) upheld three separate State preemption statutes as
constitutional. A full copy of the Court's opinion is attached hereto as Exhibit "A".
A. Coral Gables Litigation
On July 18, 2016, Plaintiffs Florida Retail Federation, Inc., and Super Progreso Inc. filed a
complaint in Miami-Dade County Circuit Court against the City of Coral Gables, seeking an
injunction against enforcement of the Coral Gables Polystyrene Ordinance, and a declaration
that the Ordinance was preempted by three separate Florida Statutes: Section 403. 708(9)
(pertaining to the "packaging of products"); Section 403.7033 (pertaining to "auxiliary containers,
wrappings, or disposable plastic bags"); and Section 500.90 (pertaining to "polystyrene
products") (altogether, the "Preemption Statutes").
The Circuit Court granted summary judgment in favor of the City of Coral Gables, upholding the
Coral Gables Polystyrene Ordinance, and finding all three Preemption Statutes
unconstitutional.1 The Plaintiffs and the State of Florida, as an intervenor, appealed the Circuit
Court ruling to the Third District Court of Appeal. The City participated in the appeal by filing an
amicus curiae ("friend of the court") brief in support of Coral Gables.
On August 14, 2019, the Third District Court of Appeal issued an opinion reversing the Circuit
Court's final judgment in favor of Coral Gables, and remanding the case to the Circuit Court to
enter final judgment in favor of the Plaintiffs. The District Court held as follows:
1. Sections 403.708(9), 403.7033, and 500.90, Florida Statutes-the "Preemption
Statutes"-are constitutional.
1 Subsequent to the trial court ruling, on May 9, 2017, the City of Coral Gables adopted Ordinance No.
2017-13, prohibiting the use of single-use carry out plastic bags by special event permittees and
prohibiting the sale, use, or distribution of single-use carry out plastic bags by retail establishments within
the City.
August 26, 2019
Florida Retail Federation, Inc. v. City of Coral Gables
Page 2 of2
2. By their plain language, the Preemption Statutes "expressly preempt the [Coral
Gables] Polystyrene Ordinance."
B. City of Miami Beach regulations on single-use plastics
Over the past several years, the City has enacted a number of Ordinances restricting the sale or
use of single-use plastics. Importantly, the City's regulations on single-use plastics remain
in place, and were not affected by the Third District Court of Appeal ruling in the Coral
Gables litigation. A summary of the City's legislation on single-use plastics is as follows:
1. Expanded polystyrene products
• City Code Section 46-92(c) prohibits any person from carrying "any expanded
polystyrene product ... onto any beach or park within the city, or onto any city
marina, pier, dock, or boat ramp .... "
2. Expanded polystyrene food service articles
• City Code Chapter 46, Article VI prohibits the sale or use of expanded
polystyrene food service articles by food service providers and stores.
• City Code Section 82-7 prohibits the sale or use of expanded polystyrene food
service articles by City contractors and special event permittees in City facilities
or on City property.
• City Code Section 82-385(p) prohibits expanded polystyrene food service articles
at sidewalk cafes.
3. Single-use plastic beverage straws and single-use plastic stirrers
• City Code Section 46-92(c) prohibits single-use plastic beverage straws and
single-use plastic stirrers at any City beach, park, marina, pier, dock, or boat
ramp.
• City Code Section 82-8 prohibits the sale or use of single-use plastic beverage
straws and single-use plastic stirrers by City contractors and special event
permittees in City facilities or on City property.
• City Code Section 82-385(p) prohibits single-use plastic beverage straws and
single-use plastic stirrers at sidewalk cafes.
• On July 17, 2019, the City Commission approved, on First Reading, an
Ordinance prohibiting the sale or use of single-use plastic beverage straws and
single-use plastic stirrers by food service providers and stores. The Second
Reading/Public Hearing is scheduled for September 11, 2019.
4. Single-use carry out plastic bags
• City Code Section 82-385(z) prohibits single-use carry out plastic bags at
sidewalk cafes.
C. Conclusion
My office is monitoring the Coral Gables litigation, and will continue to evaluate opportunities for
the City to strengthen its environmental legislation. In the meantime, if Coral Gables seeks
review by the Florida Supreme Court, I will place an item on an upcoming City Commission
agenda to request direction from the City Commission to file an amicus brief, once again, in
support of Coral Gables. If you have any questions, please do not hesitate to contact me.
{ltbtrb 1!\t~trtct ~ourt of ~ppeal
State of Florida
Opinion filed August 14,2019.
Not final until disposition of timely filed motion for rehearing.
No. 3D17-0562
Lower Tribunal No. 16-18370
Florida Retail Federation, Inc., et al.,
Appellants,
vs.
The City of Coral Gables, Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Ashley Moody, Attorney General, and Amit Agarwal (Tallahassee), Solicitor
General; Lehtinen Schultz Riedi Catalano De la Fuente, PLLC, and Dexter W.
Lehtinen, and Claudio Riedi, for appellants.
Craig E. Leen, City Attorney, and Miriam S. Ramos, Deputy City Attorney;
Kozyak Tropin & Throckmorton LLP, and Corali Lopez-Castro, Rachel Sullivan
and Mindy Y. Kubs, for appellee.
Erin Deady (West Palm Beach); Derek Howard; Roget V. Bryan, for City of
West Palm Beach, Monroe County, and Islamorada, Village of Islands, as amici
cunae.
Raul J. Aguila, City Attorney, and Nicholas Kallergis, Assistant City
Attorney; Jean K. Olin, for City of Miami Beach, as amicus curiae.
Earthjustice and Bonnie A. Malloy (Tallahassee), for Surfrider Foundation,
Campaign to Defend Local Solutions, League of Women Voters of Florida, Legal
Scholars, 1000 Friends of Florida, ReThink Energy Florida, Florida Wildlife
Federation, Save the Manatee Club, and Center for Biological Diversity, as amici
cunae.
Before FERNANDEZ, LINDSEY, and HENDON, JJ. 1
LINDSEY, J.
I. INTRODUCTION
In 2016, the City of Coral Gables (the "City") passed an Ordinance
prohibiting food service providers and stores from selling or using expanded
polystyrene (i.e. Styrofoam) containers. The Florida Retail Federation and Super
Progreso 2 (collectively "FRF") filed the underlying complaint seeking a declaration
that the City's Polystyrene Ordinance was preempted by three separate Florida
Statutes: sections 403.708(9), 403.7033, and 500.90. Because the trial court erred
in finding the three statutes unconstitutional and concluding that the City's
Polystyrene Ordinance was not preempted, we reverse.
II. BACKGROUND
1 Judge Hendon did not participate in oral argument.
2 Super Progreso is a Florida Retail Federation member.
2
This appeal concerns the validity and preemptory effect of the following three
state statutes, which the trial court concluded were unconstitutional:
• Section 403.708(9) (enacted in 1974 3) provides that "[t]he packaging of
products manufactured or sold in the state may not be controlled by
governmental rule, regulation, or ordinance .... "
• Section 403.7033 (enacted in 2008) prohibits local governments from
enacting "any rule regulation, or ordinance regarding use, disposition, sale,
prohibition, restriction, or tax of ... auxiliary containers, wrappings, or
disposable plastic bags."
• Section 500.90 (effective July 1, 2016) preempts the "regulation ofthe use
or sale of polystyrene products" by local ordinances enacted after January
1,2016.
The City enacted Ordinance 2016-08 on February 9, 2016.4 The Ordinance
generally prohibits "[f]ood service providers and stores" from selling, using,
offering for sale, or "provid[ing] food or beverag~s in expanded polystyrene
3 Originally 403.708(2), Florida Statutes (1975).
4 Aware of the impending passage of section 500.90, which explicitly preempts local
ordinances regulating polystyrene enacted after January 1, 2016, the City enacted an
emergency ordinance giving its Polystyrene Ordinance a retroactive effective date
of December 8, 2015.
3
containers." City of Coral Gables, Fla., Code of Ordinances § 34-264(a) (2019).5
On April26, 2016, the City passed Ordinance 2016-28, "exercise[ing] its Home Rule
powers under article VIII, section 6 of the Florida Constitution of 1968 to conflict
with, modify, and nullify the polystyrene pre-emption and grandfathering provisions
of Chapter 2016-61, Laws ofFlorida (F.S. § 500.90) .... " Id. at§ 34-267.
In July 2016, FRF filed a complaint seeking a declaration that sections
403.708(9), 403.7033, and 500.90, Florida Statutes,6 preempt the City's Polystyrene
Ordinance. The complaint also sought an injtmction against enforcement of the
Ordinance. The City, in tum, filed a counterclaim seeking a declaration that the
same three statutes are unconstitutional. Both sides filed competing motions for
summary judgment. Following a hearing, the trial court granted the City's motion.
The trial court entered final judgment in favor of the City, finding all three statutes
unconstitutional and the City's ordinance valid and enforceable. FRF and the State
appeal.
III. JURISDICTION
5 Before recodification in July 2017, Ordinance 2016-08 was codified in§§ 34-187
to -190.
6 The trial court granted the State of Florida's motion to intervene "for the limited
purpose of advocating the proper interpretation and defending the constitutionality
of any statutes challenged" in the action.
4
We have jurisdiction to review the trial court's entry of final summary
judgment in favor of the City pursuant to Florida Rule of Appellate Procedure
9.030(b )(1 )(A).
IV. STANDARDS OF REVIEW
We review questions of statutory interpretation and the trial court's grant of
summary judgment de novo. See, e.g., Save Calusa Tr. v. St. Andrews Holdings,
Ltd., 193 So. 3d 910, 914 (Fla. 3d DCA 2016). We also "review questions of
preemption and the validity of an ordinance de novo." D' Agastino v. City of Miami,
220 So. 3d 410,421 (Fla. 2017) (citing City of Hollywood v. Mulligan, 934 So. 2d
123 8, 1241 (Fla. 2006)). Likewise, the "constitutionality of a statute is a pure
question of law that is subject to de novo review." Searcy, Denney, Scarola,
Barnhart & Shipley, etc. v. State, 209 So. 3d 1181, 1188 (Fla. 2017) (citing City of
Miami v. McGrath, 824 So. 2d 143, 146 (Fla. 2002)).
V. ANALYSIS
Because this case concerns the validity of state statutes and local ordinances,
we are bound by certain presumptions. The trial court, in finding three state statutes
unconstitutional, relied exclusively on the presumption that ordinances are valid, but
failed to consider the strong, competing presumption that "statutes come clothed
with a presumption of constitutionality and must be construed whenever possible to
effect a constitutional outcome." Crist v. Fla. Ass'n of Criminal De f. Lawyers, Inc.,
5
978 So. 2d 134, 139 (Fla. 2008); see also Lowe v. Broward Cty., 766 So. 2d 1199,
1203 (Fla. 4th DCA 2000) ("A regularly enacted ordinance will be presumed to be
valid until the contrary is shown, and a party who seeks to overthrow such an
ordinance has the burden of establishing its invalidity." (quoting State ex rei. Office
Realty Co. v. Ehinger, 46 So. 2d 601,602 (Fla. 1950))). Moreover, although Florida
municipalities are given broad authority to enact ordinances, "municipal ordinances
must yield to state statutes." Masone v. City of Aventura, 147 So. 3d 492, 495 (Fla.
2014).
With these principles in mind, we first consider whether the trial court erred
in finding sections 403.708(9), 403.7033, and 500.90 unconstitutional. Because we
conclude all three statutes are constitutional, we next evaluate whether the City's
Polystyrene Ordinance is preempted. For the reasons that follow, we hold that it is.
A. Sections 403.708(9), 403.7033, and 500.90 Are Constitutional
The trial court's a?alysis focused almost entirely on the most recent of the
three statutes, section 500.90. The court concluded that section 500.90 was
unconstitutional because (1) it violates the Miami-Dade County Home Rule
Amendment; (2) it is unconstitutionally vague in violation of the nondelegation
doctrine; and (3) the statute's classification schemes make it impermissibly arbitrary
and capricious. As to sections 403.708(9) and 403.7033, the trial court found that
6
both statutes were also unconstitutionally vague in violation of the nondelegation
doctrine.
The trial court first determined that section 500.90 violated the Home Rule
Amendment, which prohibits the Legislature from adopting any act directed solely
at Miami-Dade County or its municipalities. See Art. VIII, § 6( e), Fla. Const.
Section 500.90 explicitly preempts local ordinances regulating polystyrene enacted
after January 1, 2016. The court reasoned that because the City was the only
municipality that enacted a Polystyrene Ordinance after January 1, 2016, but before
section 500.90's July 1, 2016 effective date, section 500.90 was an impermissible
special law aimed only at the City.
We disagree with such an expansive interpretation of the Home Rule
Amendment. It is well-established that the Home Rule Amendment must be strictly
construed to maintain the supremacy of general laws. Metro. Dade Cty. v. Chase
Fed. Hous. Corp., 737 So. 2d 494, 504 (Fla. 1999). Section 500.90 plainly preempts
all municipalities statewide 7 from enacting local polystyrene regulations after
January 1, 2016.8 Although the City may have been the first municipality to regulate
7 Indeed, we note that the City of West Palm Beach, Monroe County, and Islamorada
jointly filed an amici curiae brief in which they recognize that section 500.90 would
apply to them if the statute were not an "unconstitutional delegation of authority."
8 Preemption statutes ordinarily apply to previously enacted ordinances. See Chase
Fed. Hous. Corp., 737 So. 2d at 504 ("Whenever the legislature acts to supersede a
local government's authority to enforce its ordinances, the effect is immediate and
7
polystyrene after January 1, 2016, section 500.90 does not impermissibly single out
the City or Miami-Dade County. See City of Miami Beach v. Frankel, 363 So. 2d
555, 558 (Fla. 1978) ("A general law of local application is a law that uses a
classification scheme based on population or some other criterion so that its
application is restricted to particular localities. It is clear on the face of this statute
that it is a general law applicable statewide.").9
Next, we consider the trial court's conclusion that section 500.90 violates the
nondelegation doctrine.10 More specifically, the court held that the statute "is
applies to both future and pending proceedings and present and past offenses.").
Moreover, the Legislature is empowered to set the start date for legislation so long
as it acts within constitutionally accepted parameters. Id. at 503.
9 The trial court relied on several cases where the "Florida Legislature has run afoul
of the prohibition in enacting laws directed to Miami-Dade County or its
municipalities .... " But unlike here, the statutes in those cases all contained a
classification scheme that made them impermissibly applicable to Miami-Dade
County. See State ex rei. Worthington v. Cannon, 181 So. 2d 346, 347 (Fla. 1965)
(finding two statutes unconstitutional because they applied to counties having a
population of 750,000 or more); S & J Transp., Inc. v. Gordon, 176 So. 2d 69, 70
(Fla. 1965) (invalidating a statute that applied to counties operating an airport and
having more than 900,000 residents); Homestead Hosp., Inc. v. Miami-Dade Cty.,
829 So. 2d 259, 262 (Fla. 3d DCA 2002) (invalidating a statute that "as written, is
applicable only to Miami-Dade County").
10 The Florida Supreme Court has explained the nondelegation doctrine as follows:
[U]nder article II, section 3 of the constitution the
Legislature "may not delegate the power to enact a law or
the right to exercise unrestricted discretion in applying the
law." Sims v. State, 754 So.2d 657, 668 (Fla.2000). This
prohibition, known as the nondelegation doctrine, requires
that "fundamental and primary policy decisions ... be made
by members of the legislature who are elected to perform
8
unconstitutionally vague because the Legislature delegated preemption authority to
the Department of Agriculture ... without defining guidelines or standards for the
exercise of the Department's discretion in implementing the statute."
However, section 500.90 does not, on its face, delegate legislative authority
to the Department of Agriculture. The plain text of the statute simply provides that
"[t]he regulation of the use or sale of polystyrene products by entities regulated
under this chapter is preempted to the department." The statute is silent as to
delegation of any authority because the Department's rulemaking authority stems
from the separate "Rulemaking" section found in the same Chapter (Chapter 500,
the Florida Food and Safety Act). See § 500.09, Fla. Stat. (2018) ("Rulemaking;
analytical work-" not to be confused with§ 500.90, the statute at issue here). In
contrast to the language in Chapter 500's preemption provision, the rulemaking
provision provides, in part, that "[t]he department may adopt rules necessary for the
those tasks, and [that the] administration of legislative
programs must be pursuant to some minimal standards and
guidelines ascertainable by reference to the enactment
establishing the program." Askew v. Cross Key
Waterways, 372 So.2d 913, 925 (Fla.1978); see also
AvatarDev. Corp. v. State, 723 So.2d 199,202 (Fla.1998)
(citing Askew with approval). In other words, statutes
granting power to the executive branch "must clearly
announce adequate standards to guide ... in the execution
of the powers delegated.["]
Bush v. Schiavo, 885 So. 2d 321, 332 (Fla. 2004).
9
efficient enforcement of this chapter." § 500.09(4), Fla. Stat. The City does not
challenge the delegation of authority in the separate "Rulemaking" section of
Chapter 500.
The trial court also concluded that sections 403.708(9) and 403.7033 violate
the nondelegation doctrine because they "lack the necessary standards and
guidelines for implementation, rendering them unconstitutionally vague .... " This
conclusion forms the sole basis for the trial court's determination that sections
403.708(9) and 403.7033-statutes enacted in 1974 and 2008, respectively-are
unconstitutional. Here again, neither statute delegates any legislative authority. The
statutes simply prohibit local governments from regulating "[t]he packaging of
products manufactured or sold in the state[,]" section 403.708(9), and "auxiliary
containers, wrappings, or disposable plastic bags[,]" section 403.7033. Because the
statutes delegate no authority, they cannot be unconstitutional pursuant to the
nondelegation doctrine.
Finally, we consider the trial court's conclusion that section 500.90 "creates
at least two classification schemes that are not reasonably related to the purpose of
legislation, rendering the statute arbitrary and capricious." Article III, section 11 (b)
of the Florida Constitution provides that "[i]n the enactment of general laws on other
subjects, political subdivisions or other governmental entities may be classified only
on a basis reasonably related to the subject of the law." The trial court reasoned that
10
the legislature, in enacting section 500.90, violated the Florida Constitution by
"choosing an exemption date of January 1, 20 16" and by intending to "liberalize the
purportedly strict prohibitions on local polystyrene regulation ... for certain 'beach
towns' that sought to regulate polystyrene use."
As an initial matter, we find no mention of beach towns in the text of section
500.90. Consequently, there was no basis for concluding that a non-existent beach
town classification was arbitrary and capricious. More importantly, we do not read
anything in section 500.90 to be a classification of "political subdivisions or other
government entities" as set forth in article III, section 11 (b) of the Florida
Constitution. An "exemption date" of January 1, 2016, simply sets the date after
which local ordinances regulating polystyrene will be preempted. In other words,
the only classification scheme found in section 500.90 applies to ordinances-those
enacted before and those enacted after January 1, 20 16-there is no classification of
any governmental entities.
Having determined that sections 403.708(9), 403.7033, and 500.90 are
constitutional, we now turn to the issue of whether the statutes preempt the City's
Polystyrene Ordinance.
B. State Law Expressly Preempts the City's Polystyrene Ordinance
The preemption analysis is a matter of statutory interpretation. "Statutory
interpretation in any case 'begin[s] with the actual language used in the statute
11
because legislative intent is determined first and foremost from the statute's
text.'" Williams v. State, 186 So. 3d 989,991 (Fla. 2016) (quoting Raymond James
Fin. Servs., Inc. v. Phillips, 126 So. 3d 186, 190 (Fla. 2013)). Moreover, "[w]hen
the language of the statute is clear and unambiguous and conveys a clear and definite
meaning, there is no occasion for resorting to the mles of statutory interpretation and
construction; the statute must be given its plain and obvious meaning." Id.
(quoting Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828, 837-38 (Fla. 2011)).
The trial court concluded that sections 403.708(9) and 403.7033 do not
preempt the local regulation of polystyrene.11 In so doing, the court's reliance on
"principles of legislative interpretation" was in error. According to the trial court,
the enactment of section 500.90 "evidences the legislature's understanding that
sections 403.708(9) and 403.7033 did not already [preempt the regulation of
polystyrene.]" In other words, the court relied on a recent statute to determine the
legislative intent behind two older statutes.
There is no need to resort to mles of statutory constmction because the
statutory text is clear. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So. 2d 55,
62 (Fla. 1995) ("It would be absurd, however, to consider legislation enacted more
than ten years after the original act as a clarification of original intent .... "); Fla.
11 The trial court did not address preemption in the context of section 500.90 because
it concluded the statute was unconstitutional.
12
Dept. of Revenue v. Fla. Mun. Power Agency, 789 So. 2d 320, 323 (Fla. 2001)
("Legislative intent must be derived primarily from the words expressed in the
statute. If the language of the statute is clear and unambiguous, courts enforce the
law according to its terms and there is no need to resort to rules of statutory
construction.").
Here, the statutes at issue are unambiguous; they expressly preempt 12 the
City's Polystyrene Ordinance. Section 403.708(9) preempts regulatory control over
"[t]he packaging of products manufactured or sold in the state .... " The plain text
encompasses all types of packaging, including polystyrene. Similarly, section
403.7033 prohibits local governments from regulating "auxiliary containers."
Again, the "polystyrene containers" regulated by the City's Ordinance are a type of
"auxiliary container." Finally, section 500.90 specifically preempts the regulation
of "polystyrene products." In all three instances, we find the langJage clear and
unambiguous.
\
VI. CONCLUSION
Because sections 403.708(9), 403.7033, and 500.90 are constitutional and by
their plain language preempt the City's Ordinance regulating "polystyrene
12 "Preemption of local ordinances by state law may, of course, be accomplished
by express preemption-that is, by a statutory provision stating that a particular
subject is preempted by state law or that local ordinances on a particular subject
are precluded." Masone, 147 So. 3d at 495.
13
containers," we reverse the trial court's final judgment in favor of the City and
remand for entry of final judgment in favor of FRF.
Reversed and remanded.
14