Understanding “Home Rule” in Florida
By: Robert S Weinroth
The United States Constitution makes no mention of the powers related to local governments. The 10th Amendment reserves those powers to the state.
During the 18th century, cities, counties and parishes across the nation derived their powers from their state constitutions, and those local governments relied upon their respective state legislatures for all powers. This was upheld in an 1860’s court case, called “Dillon’s Rule.”
John Forest Dillon, for whom the Dillon Rule is named, was the Chief Justice of the Iowa Supreme Court and was considered one of the greatest authorities of his time on municipal law and a prolific writer about local governments.
Judge Dillon was a man who greatly distrusted local governments and local government officials. He is quoted as saying that “…those best fitted by their intelligence, business experience, capacity and moral character” usually do not hold local office, and that the conduct of municipal affairs was generally “unwise and extravagant”.
Perhaps largely because of such strong beliefs, Judge Dillon expounded his famous rule which was quickly adopted by state supreme courts around the nation.
Under Dillon’s Rule, one must assume the local government does NOT have the power in question. If there is any reasonable doubt whether a power has been conferred on a local government, then the power has NOT been conferred. This is known as the rule of local government powers.
An example of the difficulty in the non-Home Rule era would be the issue of traffic control signs: if a city wished to erect signs related to traffic control (horses, wagons, and the newly created automobiles), the city first had to obtain state permission through a special act, or general law of local application.
It was not uncommon in Florida for more than 2,000 special acts to be filed in a session during this era.
In the early 1900s, however, states began to adopt “Home Rule” provisions whereby municipalities and counties were allowed to enact ordinances at the local level without state “blessing” – or without the enactment of special acts, general laws of local application, or similar measures.
In Florida, Home Rule language was proposed in the 1968 Constitutional revision, and was adopted by the people. The Legislature adopted the Home Rule Powers Act in 1973. The Florida Constitution states in Article VIII, Section 2(b) for municipalities:
“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 power for municipal purposes except as otherwise provided by law.”
These powers do not extend to fiscal Home Rule: the state reserves all taxing authority unto itself.
The ability to establish its form of government through its charter, and to then enact ordinances, codes, plans and resolutions without prior state approval is a tremendous authority. To further be able to enforce them “at home” and to make necessary changes as a city grows is a great reflection of the trust that citizens have in their respective city leaders.
Of course, city laws cannot conflict with state or federal laws. For most of Florida’s 412 municipalities, Home Rule powers ensure the counties and municipalities are effectively and efficiently providing for the wishes of their citizens.
Over the past few years, the Florida Legislature has attacked the Home Rule authority of local governing bodies. This year has been no different.
Living up to its reputation as the most dangerous 60-days in Florida (during the annual legislative session) a flurry of bills have been introduced this year to continue the steady erosion of the Home Rule authority of Florida’s municipalities and counties.
One bill in particular SB 268 (and its house companion, HB 735) would prevent local governments from regulating many aspects of businesses operating within residences.
The most precious powers a local government in Florida has are its Home Rule powers. These bills impede the ability of locally elected leaders from enacting ordinances and codes, fundamental to governance of municipalities and counties.