On August 14, 2019, the State of Florida’s Third District Court of Appeal held that the City of Coral Gables’ ordinance regulating polystyrene, commonly known as styrofoam, is unenforceable. This news is a blow to the progress made in recent years to address the impacts of marine debris through municipal regulations.
Why is this decision so harmful? Polystyrene is a product that is frequently used in carryout containers. However, because it isn’t biodegradable and persists in the environment, it damages vital marine habitat -- impacting wildlife health, human health, and the economy.
This decision is also a blow to the home rule authority of municipalities across the State of Florida. Historically, the state legislature has worked to preempt local regulation of products like plastic bags and polystyrene containers. Home rule authority allows municipalities to govern on topics unless the state says they cannot by way of a preemption. These preemptions make it near impossible for municipalities to regulate the use or sale of products like single-use plastics and polystyrene. The Court in this decision affirmed the validity of the state’s preemption on these products. The opinion specifically said that the Florida statutes preempting the regulations on these products superseded Coral Gables’ ordinances.
Brief History of Relevant Legislature
There are five competing laws at play in this case: 1) the Home Rule Amendment; 2) Fla. Stat. Section 403.708; 3) Fla. Stat. Section 403.7033; 4) Coral Gables’ ordinance regulating polystyrene, and 5) Fla. Stat. Section 500.90.
In short, the Home Rule was added as an amendment to the Florida constitution to give municipalities the authority to exercise power without direct state approval. For example, the City of Coral Gables polystyrene ordinance is an example of a city exercising its right under the Home Rule Amendment. Arguably, Florida Statutes 500.90, 403.708(9), and 403.7033 prevent a city’s regulation of polystyrene, which conflicts with the purpose of the Home Rule.
Retailers Questioned the Validity of the Coral Gables’ Polystyrene Ordinance
Based on the legislative history detailed above, it was unclear to retailers whether the City of Coral Gables could regulate their use of polystyrene in light of Florida statutes 500.900, 403.708(9), and 403.7033, so they sought clarification in court. The retailers argued Florida Statutes 500.900, 403.708(9), and 403.7033 preempted the City’s regulation of polystyrene, meaning the state has “banned the ban” on these products. The City has argued these legal actions are unconstitutional, impending on the rights of the people, and the polystyrene ordinance is enforceable. The trial court entered a final judgment in favor of the City of Coral Gables, finding all three statutes unconstitutional; making the City's ordinance valid and enforceable. However, the Florida Retail Federation and the State appealed.
What happened on Appeal?
The Third District Court of Appeal reviewed the Circuit Court’s finding that the three statutes were unconstitutional, having no preemptive effects. Other municipalities, including the City of West Palm, Monroe County, and the Village of Islamorada, formally entered their support for Coral Gables in the proceeding. However, the Court of Appeal found that three statutes were in fact constitutional; and in turn their preemptive effects enforceable. You can read the whole opinion here.
In late August, the Coral Gables City Commission voted in favor of appealing the Third District Court of Appeal’s ruling to the Florida Supreme Court. The City of Coral Gables wants to ensure that municipal Home Rule power is protected. While there is no concrete timeline for the Coral Gables Supreme Court effort because the highest court in the state has ultimate discretion as to whether or not to hear the case.
In the meantime, the Coral Gables Commission voted to temporarily stop enforcement of their polystyrene and plastic bag bans within city limits.