Plastic-Bag Ordinance vs. State Preemption
The City of Palmetto Bay, population 24,000, adopted Ordinance 2024-17 banning grocery stores from distributing single-use plastic carryout bags and polystyrene food containers, effective January 1. The ordinance imposes a $250 fine per violation. A regional grocery chain with three stores in the city sues, arguing the city lacks authority. Florida Statutes section 403.7033, enacted in 2008, directs the Department of Environmental Protection to review local plastic-bag regulation and states that until the review is complete, "no local government ... may adopt or enforce any rule ... regulating the use or sale of polystyrene." The city points to Article VIII, section 2(b) of the Florida Constitution, which grants municipalities "governmental, corporate, and proprietary powers" and allows them to enact ordinances. The chain also notes that Miami-Dade County considered a similar ban in 2019 but did not enforce it after legal advice. The trial court must decide whether Ordinance 2024-17 can take effect.
1. Which government's law controls-the city ordinance or the state statute? Explain the constitutional principles that decide the issue.
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The state statute controls. Florida's Constitution gives municipalities home-rule authority, but that power is not superior to state law. Article VIII, section 2(b) lets cities exercise governmental powers, yet the Legislature may preempt a field and limit local action. When a local ordinance directly conflicts with a state statute, the state law prevails. Here, section 403.7033 expressly says no local government may adopt or enforce a rule regulating polystyrene while the DEP review is pending. Palmetto Bay's ban on polystyrene food containers squarely conflicts with that command. The city's home-rule power is therefore subordinate, and the ordinance cannot be enforced. The Miami-Dade example is not controlling because a county's decision not to enforce a similar ban does not repeal the statute or create authority for Palmetto Bay. The grocery chain should win on this issue, though the city could challenge whether the statute's terms actually cover its ordinance.
2. Suppose the Florida Legislature repeals section 403.7033 in 2026. Would the city's ordinance then be valid? Identify any remaining limits on the city's power.
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Repeal would remove the express statutory barrier, and the city could likely rely on its home-rule authority to regulate plastic bags for a valid municipal purpose such as litter reduction. But repeal is not an automatic green light. The city would still need to show that the ordinance does not conflict with any other state law, that it complies with the Florida Constitution, and that it was adopted through proper procedures, including notice and a public hearing. If the ordinance discriminated against out-of-state businesses or imposed an unreasonable burden on interstate commerce, it could also face a constitutional challenge. A county ordinance covering the same subject could create a conflict if state law gives counties superior authority in that area. In short, repeal changes the analysis but does not guarantee validity; the city must still satisfy ordinary home-rule limits.