Fort Walton Beach Council agenda — 09-16-08 workshop agenda — reading text

provisions for changing municipal elections scheduled to be held in March 2008, to the date concurrent with the presidential preference primary 4) Vacancy in candidacy or office. Pursuant to F.S. § 166. 031( 6), each municipality shall, by ordinance or charter provision, provide procedures for filling a vacancy in office caused by death, resignation, or removal from office. Such ordinance or charter provision shall also provide procedures for filling a vacancy in candidacy caused by death, withdrawal, or removal from the ballot of a qualified candidate following the end of the qualifying period which leaves fewer than two candidates for an office. 5) Property ownership. A freeholder (property owner or taxpayer) requirement for public office has been declared unconstitutional. See Kramer v. Union Free School District, 395 U. S. 621, 89 S. Ct. 1886, 23 L. Ed. 2d 583 ( 1969); Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 ( 1970). A freeholder requirement for bond election electors has been declared unconstitutional. See Fair v. Fair, 317 F. Supp. 859 ( M.D. FL, 1970); City of Phoenix v. Kolodziejski, 399 U.S. 204, 90 S. Ct. 1990, 26 L.Ed.2d 523 1970). 6) Precinct boundaries. If the supervisor of elections and the municipal governing body concur, the board of county commissioners may arrange the boundaries of the precincts in a municipality to conform to the boundaries of the municipality. F.S. § 101. 002. 7) Candidates assessed. A candidate for a municipal office must pay an election assess- ment equal to one percent of the annual salary of the office. F.S. § 99. 093. 11  FLORIDA STATE LAW PAMPHLET 8) Special election.. Before calling a special election, the municipal governing body must give notice to the supervisor of elections and obtain his consent as to a date when the registration books can be available. F.S. § 100. 151. For required publication of notice of special elections, see F.S. § 100. 342. EMERGENCIES Civil Emergencies 1) Disaster and emergency preparedness. 2) State of emergency. a. The chief of police is given certain emergency powers under F.S. §§ 870. 041 through 870. 047 in the absence of a municipal ordinance designating the chief of police or the mayor as the designated local authority under such statute. b. Under F.S. § 252. 38 ( 3), a municipality may declare a local emergency and waive certain procedures and formalities. 3) Prices in emergencies. Unconscionable prices for sale or rental of essential commodities during a declared state of emergency are unlawful under the provisions of F.S. 501. 160. While subsection ( 6) of such statute provides that the section is not preemptive of local government powers, such subsection also provides that that the evidentiary standards and defenses contained in F.S. § 501. 160 shall be the only evidentiary standards and defenses used in any ordinance adopted by local govern- ment to restrict price gouging during a declared state of emergency. ENVIRONMENT 1) Underground storage of petroleum products. F.S. § 376. 317 preempts the regulation of the prevention and removal of pollutant discharges from a facility for the underground storage of petroleum products for use as fuel in vehicles, with certain exceptions. 2) Fishing. F.S. §§ 370. 1103 and 372. 993 ( identical wording as §§ 370. 1103) restricts the right of local governments to declare commercial or recreational fishing operations a nuisance. 3) Vehicle noise generally. The sound level limits for motor vehicles are prescribed and preempted by F.S. §§ 316. 293 and 403. 415. ( See F.S. §§ 316. 007, 403. 415( 10).) 4) Beachfront lighting. The state department of environmental protection adopts guide- lines for local government regulations that control beachfront lighting to protect hatching sea turtles. F.S. § 161. 163. 5) Litter. Municipal code compliance employees may be designated to enforce the Florida Litter Law. ( See F.S. § 403. 413( 7).) Such law does not limit municipal authority to enforce other laws, rules or ordinances relating to litter or solid waste management. See F.S. § 403. 413( 8).) 12  FLORIDA STATE LAW PAMPHLET 6) Vapor recovery. A municipality may not adopt an ordinance requiring the installation of Stage II vapor recovery systems unless the municipality is or has been designated by federal regulation as a moderate, serious or severe ozone nonattainment area. ( See F.S. § 403. 061( 7).) 7) Air quality. Municipal air quality ordinances are preempted when a county ordinance provides for countywide air quality protection and the county is designated as a nonattainment area for air quality. (See F.S. § 125. 275.) FIRE PREVENTION AND PROTECTION 1) Fire safety standards. a. F.S. § 633. 0215 provides for a Florida Fire Prevention Code and restricts local amendments thereto. b. F.S. § 633. 025 requires local governments to adopt certain fire safety standards. 2) State fire marshal. F.S. ch. 633 and rules of the state fire marshal are in force in each municipality with the same effect as the ordinances of the municipality and are enforceable in the courts in the same manner as such ordinances. F.S. § 633. 15. HEALTH AND SANITATION In General 1) Health regulations. References to the state sanitary code are obsolete. F.S. § 381. 0014 states that rules adopted by the state department of health pursuant to ch. 381 supersede municipal regulations and ordinances and public health rules of other state departments. F.S. § 381. 0016 permits municipalities to enact ordinances not inconsis- tent with state public health laws and rules adopted by the state department of health. 2) Mobile home parks, RV parks, etc. F.S. § 513. 051 preempts to the state regulation of sanitation for mobile home parks, recreational vehicle parks, lodging parks and recreational camps. 3) Smoking. F.S. § 386. 209 preempts the regulation of smoking. 4) Substance abuse. A municipality may adopt an ordinance for the treatment of habitual substance abusers. F.S. § 397. 702. A municipality may not adopt an ordinance which provides that impairment in public in and of itself is a violation. F.S. § 397. 701. Food and Food Handlers 1) Food. F.S. § 500. 12( 5) preempts to the state the regulation and permitting of food manufacturing, processing, packing, transporting and preparing, or selling at retail except as provided in F.S. chs. 370 and 372. 2) Milk and milk products. F.S. § 502. 232 provides that F.S. ch. 502 and state rules supersede all municipal regulations regarding milk and milk products. 13  FLORIDA STATE LAW PAMPHLET 3) Frozen desserts. F.S. § 503. 081 provides that F.S. ch. 503 and state rules preempt all municipal regulations regarding manufacturing and processing frozen desserts. 4) Food service establishments and personnel. a. F.S. § 509.032( 7) preempts to the state the regulation of public lodging establish- ments and public food service establishments, the inspection of public lodging establishments and public food service establishments for compliance with the sanitation standards, and the regulation of food safety protection standards for required training and testing of food service establishment personnel are pre- empted to the state. b. F.S. § 509. 039 preempts to the state the regulation of food safety protection standards for training and testing of food service establishment personnel and the ranking of food service establishments except for certain local ordinances. MANUFACTURED HOMES AND TRAILERS 1) Mobile home setup operations by dealer or manufacturer: F.S. § 205. 193 prohibits a separate local license for certain operations. 2) Sanitation and health regulations. F.S. § 513. 051 preempts to the state regulation of sanitation and health- related matters for mobile home parks, recreational vehicle parks, lodging parks and recreational camps. 3) Rentals. F.S. § 723. 004 preempts to the state the regulation and establishment of rights between mobile home owners and mobile home park owners. OFFENSES AND MISCELLANEOUS PROVISIONS 1) Adoption of state law misdemeanors by reference. There is case law upholding the right of municipalities to do this, thus snaking it superfluous to include any offense covered under state law if there is an ordinance adopting state law misdemeanors by reference. See Jaramillo v. City of Homestead, 322 So. 2d 496 ( Fla. 1975). 2) General curfew for minors. A general curfew for minors is unconstitutional per W.J.W. v. State of Florida, 356 So. 2d 48( 1 D. C. A. Fla., 1978). See also AGO 82 -22. However, subsequent authority is granted in F.S. § 877. 25 for municipal curfew ordinances. 3) Firearms and ammunition. a. F.S. §§ 166. 044 and 790. 33 preempt the regulation of firearms and ammunition, except for general zoning. b. F.S. § 790. 06( 15) preempts the regulation and issuance of concealed weapons licenses. C. F.S. § 790. 051 exempts law enforcement officers from the licensing and penal provisions of F.S. ch. 790 when acting in the performance of their duties. 14  FLORIDA STATE LAW PAMPHLET 4) Public impairment. F.S. § 397. 701 prohibits local ordinances creating offenses concern- ing public intoxication or drug impairment, but F.S. § 397. 702 permits adoption of certain ordinances regarding treatment in compliance with state law. 5) Obscenity. a. F.S. § 847.09( 1) preempts the field concerning exposing persons over 17 years of age to harmful motion pictures, exhibitions, shows, representations and presen- tations. b. F.S. § 847. 013( 4) preempts the field concerning exposing persons under 17 years of age to harmful motion pictures, exhibitions, shows, representations and presentations. PEDDLERS AND SOLICITORS 1) Hours. Any ordinance limiting hours should allow solicitations at least until 9: 00 p. m. See, e. g., City of Watseka v. Illinois Public Action Council, 796 F.2d 1547 ( 7th Cir. 1986), affd. 479 U.S. 1048, 109 S. Ct. 919, 93 L. Ed. 2d 972 ( 1987), reh. den. 480 U.S. 926, 107 S. Ct. 1389, 94 L. Ed. 2d 703; New Jersey Citizen Action Group v. Edison, 797 F.2d 1250 ( 3d Cir. 1986), cert. den. sub. nom. Township of Piscataway v. New Jersey 479 U.S. 1103, 107 S. Ct. 1336, 94 L. Ed. 2d 186; Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248 ( 7th Cir. 1985); ACORN v. City of Frontenac, 714 F.2d 813 ( 8th Cir. 1983); Massachusetts Fair Share Inc. v. Town of Rockland, 610 F.