By: Donald J. Lunny
Ch. 2017-149, Laws of Florida, became effective July 1, 2017 and seemingly relates to the subject of construction. In Section 3 of the new legislation, which applies to property located outside a designated historic district, a prohibition and pre-emption from county and municipal development control was granted in favor of the special interests of gasoline stations, and franchised business activities. The new legislation creates Subsection 553.79(20), which reads:
“(20)(a) A political subdivision of this state may not adopt or enforce any ordinance or impose any building permit or other development order requirement that:
1. Contains any building, construction, or aesthetic requirement or condition that conflicts with or impairs corporate trademarks, service marks, trade dress, logos, color patterns, design scheme insignia, image standards, or other features of corporate branding identity on real property or improvements thereon used in activities conducted under chapter 526 or in carrying out business activities defined as a franchise by Federal Trade Commission regulations in 16 C.F.R. ss. 436.1, et. seq.; or
2. Imposes any requirement on the design, construction or location of signage advertising the retail price of gasoline in accordance with the requirements of ss. 526.111 and 526.121 which prevents the signage from being clearly visible and legible to drivers of approaching motor vehicles from a vantage point on any lane of traffic in either direction on a roadway abutting the gas station premises and meets height, width, and spacing standards for Series C, D, or E signs, as applicable, published in the latest edition of Standard Alphabets for Highway Signs published by the United States Department of Commerce, Bureau of Public Roads, Office of Highway Safety.
(b) This subsection does not affect any requirement for design and construction in the Florida Building Code.
(c) All such ordinances and requirements are hereby preempted and superseded by general law. This subsection shall apply retroactively.
(d) This subsection does not apply to property located in a designated historic district.”
New Subsection 553.79(20), Florida Statutes, is not a model of clarity. However, the following initial observations may be helpful:
- While paragraph 553.79 (20)(a)1., Florida Statutes, may include within its scope a local authority’s architectural regulations, a local authority’s use regulations are likely beyond the new paragraph’s reach (“. . . may not adopt or enforce any ordinance or impose any building permit or other development order requirement that: 1 Contains any building, construction, or aesthetic requirement or condition that conflicts with or impairs . . .”).
- The inclusion of Section 3 in Ch. 2017-149 may not comply with the “single subject” requirement expressed in the first sentence of Article III, Section 6, Florida Constitution (“Each law shall embrace but one subject and matter properly connected therewith”).
- It is unclear whether the provisions of paragraph 553.79 (20)(a)1., Florida Statutes, inure to the benefit of individuals or inure to the benefit of business entities which are not corporations.
- There are no definitions for the words: “design scheme insignia”, “image standards”, or “other features of corporate branding identity on real property or improvements thereon”. It does seem that the objects the legislation seeks to protect (“corporate trademarks, service marks, trade dress, logos, color patterns, design scheme insignia, image standards, or other features of corporate branding identity on real property or improvements thereon used in …”) likely encompass rights created by registration, rights obtained by common law use, and rights obtained by created business structures and transactions. Local authorities might consider adopting definitions for some of the clauses that have no well-established meaning which will apply until definitions are created by the Legislature, or until such words are construed by case law. An important consideration in any definition should be to ensure that the objects of the legislation are real, as opposed to fanciful and created only for the purpose of gaining pre-emption. Definitions that reflect use, history, and time considerations may be appropriate.
- It is noteworthy that the Subsection 553.79 (20)(a) also contains paragraph 2, which specifically addresses a pre-emption for design, construction, and location of signage advertising the retail price of gasoline. Given the rule of statutory construction that prevents statutory language from being meaningless or mere surplussage, it must be presumed that sign design, construction, and location standards are not pre-empted by the language in paragraph 553.79 (20)(a)1., Florida Statutes, in light of the fact that paragraph 1 also applies to gasoline stations. The fact that paragraph 2 was included in the enactment supports the conclusion that paragraph 1 is not as broad and far reaching as it initially appears.
- The preemption in paragraph 553.79 (20)(a)1., Florida Statutes, is not “per se” in nature, but only results in particular cases when an ordinance or development order or a permit requirement or condition “conflicts with” or “impairs” the objects of the new legislation. Consequently:
- The local authority’s land development regulations might be reviewed to remove any reference to the objects of the new legislation. The absence of language expressly regulating the objects of the new legislation would support the conclusion that the regulation does not result in any “conflict.”
- Any express local regulation of the objects of the new legislation creates risks of invalidation; however, most local regulation contain “savings clauses” that would protect the portions of the regulation that are not invalidated (the “surviving regulation”). An evaluation of the local authority’s surviving regulation might be appropriate to determine whether it yields a desirable result or whether modifications are in order.
- The Statute contemplates an evaluation of the relevant facts as to whether a local ordinance, development order or permit requirement “impairs” the objects of the new legislation. It would seem that the local authority would be able to make this decision before judicial review. Local authorities might wish to specify the environment in which the local decision is made, and specify criteria to guide the decision-maker’s discretion, as often this influences the scope and nature of judicial review (e.g. quasi-judicial decisions are reviewable by way of a Petition for a Writ of Certiorari). Putting an administrative process in place helps to stop a “run to the Courthouse,” where a suit is filed prior to exhausting administrative remedies.
- The evidence of legislative intent is interesting with respect to paragraph 553.79 (20)(a)1., Florida Statutes, in trying to understand what may have been intended by the words “used….. in carrying out business activities . . . .” In relevant part, the Florida House of Representatives Final Bill Analysis states:
. . .
“Federal franchise laws give prospective purchasers of franchises material information needed to weigh risks and benefits of such investments. The Federal Trade Commission’s regulations, 16 C.F.R. ss. 436.1, et. seq., require franchisors to provide all potential franchisees with a disclosure document containing 23 specific items of information about the offered franchise, its officers, and other franchisees. The Florida Franchise Act., s. 817.416, F.S., provides a private right of action to a civil litigant when a person makes certain misrepresentations related to franchises. Florida does not currently regulate private rights to contract related to franchising. Florida limits franchise regulation to antifraud, unfair trade practices, and creating rights for violations of federal franchise disclosure laws.
. . .
The bill amends s. 553.79, F.S., creating s. 553.79(20), specifying that political subdivisions of the state, except historical districts, may not adopt or enforce ordinances, or impose building permits or other development order requirements that:
Contain any building, construction, or aesthetic requirement or condition that conflicts with or impairs corporate trademarks, service marks, trade dress, logos, color patterns, design scheme insignia, image standards, or other features of corporate branding identify on real property or improvements thereon used in activities conducted under ch. 526, related to the sale of liquid fuels, or in carrying out business franchise activities, as defined by Federal Trade Commission regulations in 16 C.F.R. ss. 436.1, et. Seq. . . .”
Ironically, one of the 23 specific items that 16 C.F.R. 436.5 requires a disclosure about is whether the franchisor will provide the franchisee with any assistance in “conforming the premises to local ordinances and building codes and obtaining any required permits.” [See 16 C.F.R. 436.5 (k)(i)(ii)]. Be that as it may, if the Legislature’s intent was to create a new regulation which protects certain aspects of the franchised business activity from a local authority’s regulation, then a local authority might wish to conduct a review of the franchise agreement and any required disclosure document to make sure that the particular objects of the new legislation are, in fact, appropriately documented as being part of the “business franchise activities.”
- Another set of issues results from new Subsection 553.79 (20)(c), Florida Statutes, which creates a retroactive pre-emption. In many cases, development projects are considered as a whole and particular aspects of regulatory purview might be balanced against others when they were approved. This results in waivers or exceptions or other forms of administrative relief being granted for particular aspects of the development as part of an overall approval. For projects of this type, if permits or development orders were granted with requirements or conditions that a landowner now asserts “conflict with” or “impair” the objects of the new legislation, and if the project was constructed with some form of administrative relief, it would seem that a local authority should be able to re-examine the appropriateness of the administrative relief if the land owner now sought to “change” one aspect of the approval by taking the position that a portion of the approval was no longer valid and binding.
Local authorities may want to adopt a procedural regulation which would require land owners wishing to take advantage of the new legislation to have their development approvals revisited, and to file an application for development approval by a certain deadline. If the deadline expires without an application, then particular defects in prior approval might be deemed waived, and the prior approval will remain enforceable as a whole. Alternatively, these issues can be evaluated when, as, and if they arise. The advantage of the suggested process would be that after a certain point in time, all aspects of a prior development order might become enforceable.
- With respect to going forward, local authorities should remember that several aspects of local land development regulation can significantly but indirectly affect principal buildings, without directly regulating building features or aesthetics. Examples include parking, landscape, lot coverage, permeable area, and setback regulations. Often, a particular, proposed development may seek or need some form of administrative relief from these kinds of “indirect regulations.” Local authorities may wish to consider implementing a requirement of having the land owner and project proponent execute a waiver of the benefits of Subsection 553.79 (20), Florida statutes, when they apply for administrative relief from these kinds of “indirect regulations” so that in exchange for any relief granted, the local authorities’ regulations which may be impaired by subsection 553.79 (20), Florida Statutes will remain applicable and enforceable.
It can be reasonably expected that businesses will create business structures and transactions in an effort to defeat home rule aesthetic regulation under new paragraph 553.79 (20)(a)1., Florida Statutes. If franchises articulate trade dress (an intellectual property right that potentially includes building form) and other “features of corporate branding identity”, it is possible that long forgotten structures which disappeared from Florida’s visual landscape years ago as a result of local aesthetic regulation may now reappear. Local authority control over the exterior finishes of business that elect to franchise (such as fast food restaurants, fast-casual restaurants, car dealerships, and a myriad of others) may be reduced by the new legislation. In sum, it would appear that the new law may have unpopular consequences for Florida’s citizens who value carefully planned communities that regulate building aesthetics.
No doubt this legislation will result in litigation against local authorities by the special interest groups it protects. However, local authorities have strategies available that can manage risks while case law concerning the new legislation is developed.
Donald J. Lunny, Jr. is a Florida Bar Board Certified Specialist in City, County and Local Government Law. He represents public and private sector clients throughout Florida in the areas of land development, local government law, real estate, business and financial transactions, and litigation. He can be reached at 954-522-2200.