2.1 HOME RULE AUTHORITY OF LOCAL GOVERNMENTS

2.1.1 Municipalities

Prior to Florida's 1968 Constitution, all cities were considered creatures of the State. They had only those particular powers which the State Legislature saw fit to confer on them. The State does so by two methods. The Legislature adopts general laws, applicable to all cities, and giving power to every city to exercise a particular duty or provide a particular service or to levy a particular tax or charge. The Legislature also often adopts special acts, not applicable statewide but conferring or limiting the powers of individual cities or counties, or creating special districts of defined or limited powers. For example, every municipal charter is a special act of the Legislature.

The 1968 Constitution provides that municipalities may exercise "any power" for municipal purpose, so long as no general or special law restricted the power. This is the constitutional opposite of the pre-1968 view, and the courts were initially reluctant to embrace it (see City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d 801 [Fla. 1972], invalidating a city rent control ordinance). The Legislature, anxious to rid itself of seemingly endless petitions from cities and counties seeking special legislation, responded by adopting the Municipal Home Rule Powers Act. That Act was as significant for what it undid as for what it did. The Legislature repealed most of the accumulated general laws by which cities had been empowered to exercise specific powers or to undertake specific improvements. In the place of those laws, the Legislature declared simply that cities had broad home rule authority to do whatever was necessary to carry out municipal purposes. (FLA. STAT., § 166.021) When the question returned to the courts, the Florida Supreme Court bowed to the Legislature's will, and recognized the existence of local home rule power. (See City of Miami Beach v. Forte Towers, 305 So.2d 764 [Fla. 1974]).

2.1.2 Non-charter Counties

Prior to 1968, counties were considered merely administrative or political subdivisions of the State, with few if any inherent responsibilities. Like cities, county powers were dependent on the existence of general or special legislation, but the expected level of local government services was lower in the largely rural unincorporated areas of the State. Two urban counties, Dade and Duval, took advantage of special constitutional amendments unique to those counties, allowing special "charters" for metropolitan home rule in Dade and for consolidated city-county government in Duval.

The 1968 Constitution authorizes creation of additional "home rule charter" counties by general or special legislation, rather than by the tortuous path which Dade and Duval counties had followed, seeking a special constitutional amendment which had to be approved at statewide election. Most large urban counties, containing perhaps 85% of the State's population, have now adopted home rule charters. However, a substantial majority of the total number of counties, including most small counties, continue to operate without such charters.

The Constitution prescribes that non-charter counties shall have only such powers as the Legislature provides by general or special law. The Legislature has adopted general laws giving all counties the same broad array of powers which the Constitution provided to cities. FLA. STAT., § 125.01 provides an extensive list of powers, and subsection (3)(b) says:

That statute, being an act of the Legislature, is subject to repeal by the Legislature at any time. It has nevertheless been construed by the courts as ceding to county governments a substantial measure of control over their own affairs. See State v. Orange County, 281 So.2d 310 (Fla. 1973); Speer v. Olson, 367 So.2d 207 (Fla. 1979).

2.1.3 Charter Counties

The 1968 Constitution also authorizes counties to adopt charters specifying the structure and home-rule powers of their governments. A significant number of counties, including almost all of the State's urban areas, have adopted such charters. The Constitution provides that a charter county shall have all powers of local self-government not inconsistent with general law or with special law approved by vote of the electors. Thus, in charter counties, the Legislature's power to impose special laws on an unwilling population has been removed. Charter county governments have the same metropolitan powers as cities, including the power to impose any charge or tax which a city is authorized to impose; see Volusia County v. Dickinson, 269 So.2d 9.

Charters may also provide for the pre-emptive effect of County ordinances over conflicting municipal ordinances on the same subject; see Article VIII, § 1(g), Fla. Const. Counties may deal with regional issues entrusted to them, without interference from objecting cities; see City of Ormond Beach v. Volusia County, 535 So.2d 302 (Fla. 5th D.C.A. 1988). Thus, if a particular county charter authorizes a county to establish a minimum standard for stormwater regulation, all cities must comply with at least that minimum standard.

However, charter counties may not expropriate the services or physical assets of municipal governments without a separate referendum of the affected city. See Sarasota County v. Town of Longboat Key, 355 So.2d 1197 (Fla. 1978). Thus a county cannot, under authority of its charter, expropriate a pre-existing municipal stormwater system without the consent of that municipality.

2.1.4 Limitations on Home Rule Authority

In addition to those limitations which may be imposed by the Legislature, Article VII §1 of the Constitution says that all forms of taxation other than the property tax are pre-empted to the State, and may be conferred on local governments only through general or statewide legislation. Much litigation has occurred over whether a particular charge or assessment is truly such, or is an unauthorized tax.