Veto was proper, but war on local government is unwise

Veto of a state bill to give businesses leverage over city and county ordinances was vital, but in his veto message Gov. Ron DeSantis unwisely asked the legislature to instead clamp down on local emergency actions and controls over individual issues.

The bill he vetoed Friday would have let a business sue a local government for lost profits if it claims an ordinance cost it 15% of potential profit at a single location. Governments would have either faced costly legal battles or had to reverse an action or exempt the suing business.

The bill itself, as the governor correctly noted, would have created unintended consequences plus costly litigation.

Had he left it there, the governor would have shown wise leadership rising above politics, since the misguided legislation was supported entirely by his own party.

Instead, Mr. DeSantis lashed out at local legislation affecting businesses, saying “this was illustrated by the bizarre and draconian measures adopted by some local governments during Covid-19, necessitating the state to overrule these edicts.”

Rather than the faulty legislation that he vetoed, the governor claimed, “the better approach is to enact targeted preemption legislation when local governments act in a way that frustrates state policy and/or undermines the rights of Floridians.”

An aim in Tallahassee for years has been to prevent cities or counties from regulating sensitive issues locally. Time and again the state has stepped in, barring cities or counties from acting on local environmental concerns, including protecting water quality by regulating chemical flows into water or banning plastics from beaches. 

Environmental groups and local governments had sought the veto that the governor issued Friday. They said the bill would have made water quality protection nearly impossible.

Other local concerns also face pushback via state preemptions of local actions. Among those are regulations on pet stores, limits on bar hours, noise ordinances, parking control, and regulations related to impacts from sea level rise. The governor’s veto message is a call to attack local governments, one issue at a time, to limit local control.

In doing that, the Republican Mr. DeSantis is trying to control as much as possible at the highest levels. Ironically, the Republican Party had long argued that local action rather than a centralized national or state power was more democratic and effective.

Frankly, one-size-fits-all control is more efficient for government but less beneficial to people locally, whose concerns might not match the needs elsewhere in Florida. 

That might be particularly true of urban Miami as opposed to small communities to the north that are more strongly represented in Tallahassee. But the reverse might also be true: rural areas might seek special protections that don’t fit homogenized central control.

It was the bill’s lack of attack on local emergency powers that most upset the governor. “Incredibly, this bill exempts compensating businesses due to ‘emergency’ orders of local government,” he wrote.

The bill did indeed exempt from business liability lawsuits “a temporary emergency ordinance … which remains in effect for no more than 90 days.” That exemption would have applied to Miami Beach’s bar hours cutback in spring break or mask orders in schools in a pandemic, the kind of local public safety and health controls that give the governor fits.

A reading of the bill reveals far graver danger. 

A business could have recovered up to seven years of alleged lost future profits that it linked somehow to legislation it dislikes. It would have taken years in courts to sort out how much future profits might have been – profits are in the mind of the owner, as anyone who has ever forecast seven years of future financial gains could attest.

Proving cause of loss would have been interesting, worthy of countless hours of legal fees. What could legislation cause to happen over seven years? A lot of legal fiction might have been written.

The bill would also have required a business aggrieved by legislation to tell a city or county how much money it was going to lose and seek payment or reversal of the law. Few cities or counties would have welcomed court cases based on seven years of future lost profit claims; they would have either settled or killed their ordinances.

That’s why, when this bill advanced in January, we labeled it individual business “veto power.” 

It’s also why we welcome the governor’s veto of “veto power.” It’s discouraging that his quite proper veto was coupled with a call to the legislature to strip local governments, issue by issue, of their abilities to adequately serve their residents.