POWER TO ENACT RENT CONTROL ORDINANCE

Transcription

1 However 4 a July ANNUAL REPORT OF THE ATTORNEY.GENERA Gs rit MUNCPALTES POWER TO ENACT RENT CONTROL ORDNANCE To Alan Becker Representative 03rd District Miami Beach _. fl Prepared by Jan Dunn Assistant Attorney General i QUESTON v citizens in that city May a municipality in the exercise of municipal powers granted in Ch Laws of Florida the Municipal Home Rule Powers Act Ch. 66 F. S. enact a rent control ordinance when it determines that such a law would be in the interest of the health safety and welfare of the SUMMARY t Chapter Laws of Florida the Municipal Home Rule Powers Act grants to municipalities all powers including the power to enact a rent-control ordinance during a state of public emergency exercisable by the state with the exception of areas expressly forbidden or preempted by the Constitution general law county charter or certain special laws. Since this act is the latest expression f8 of legislative intent and delegates to municipalities the legislative power to regulate in the N area of rent control when justified by a state of emergency the case of ht Miami Beach v. Fleetwood Hotel nc. no longer controls this question. Chapter also prevails over the provisions of Ch. 83 F. S. in the f area of rent control to the extent of any inconsistency or conflict therewith. A state can delegate rent control powers to a municipality but i cannot delegate powers broader than those it possesses. Thus neither a state nor a municipality can enact a rent-control ordinance unless there exists a public emergency warranting such a resort to the states police powerp as designated by the U. S. Supreme Court. All rights including peb landlord and tenant rights and rights of contract and property are subject to the states police power when emergency conditions exist or public necessity requires. -t k Fail iii Article V 2b State Const. in pertinent part states Municipalities shall have governmental corporate and proprietary powers to enable then to conduct municipal governments perform municipal a p functions and render municipal services and may Y exercise any power for municipal purposes except as otherwise provided by law. n City of Miami Beach v. Fleetwood Hotel nc. 26 So.2d 80 Fla. 972 which concerned the validity of a Miami Beach rent control ordinance the Florida Supreme Court recognized that the above-quoted constitutional provision changed the preexisting constitutional scheme governing the powers exercisable by municipalities. The former provision Art. V 8 State Const. 885 read St i The Legislature shall have power to establish and to abolish k 4 municipalities to provide for their government to prescribe their jurisdiction and powers and to alter or amend the same at any time. j Fir t the court found that the new provision of the 968 Constitution did not change the old rule of the 885 Constitution with respect to delegated powers of municipalities. The Fleetwood court then expressly ruled that a municipality has no power to 450 iilli

2 ti ANNUAL REPORT OF THE ATTORNEY GENERAL enact a rent control ordinance absent a legislative enactment authorizing the exercise of such power by a municipality. These principles respecting limitations on exercisable municipal powers were reiterated-and followed in Admiral Development Corporation v. City of Maitland 267 So.2d D.C.A. Fla Against this backdrop the 973 Legislature enacted the Municipal Home Rule Powers Act Ch Laws of Florida effective October 973 with the express objective and purpose of granting complete home rule powers with certain specific exceptions to municipalities and removing all legislative direction and limitations over and upon the exercise of such powers for municipal purposes as defined in the statute. Sections F. S. added by Ch Laws of Florida. The legislature defined the term municipal purposes as used in Art. V 2b State Const. to mean and extend to any activity or power which may be exercised by the state or its political subdivisions and implicitly defined the phrase except as otherwise provided bylaw found in the same constitutional provision to mean except when expresslyprohibited by law. Section and2 Ch Laws of Florida. Further the legislature expresslyrecognized and found that the grant of power set forth in Art. V 2b supra embraced the which the state power to enact any legislation concerning any subject upon legislature could act with certain specified exceptions unless expressly forbidden by the Constitution general law county charter or by special law. t declared the legislative intent to be the removal of any limitations judicially imposed or otherwise on the exercise of home rule powers by municipalities other than those so expressly prohibited and went on to nullify and repeal any other limitation of power upon any municipality found in any municipal charter. Section and 4 F. S. Ch Laws of Florida. The language in supra to remove any limitations judicially imposed or otherwise on the exercise of home rule powers other than those so expressly prohibited most likely has reference to the Fleetwood and Admiral Development Corp. cases supra and constitutes an effort on the part of the legislature to expressly and formally exercise its power to alleviate the judicially imposed restrictions on the exercise of municipal home rule powers imposed by those decisions. Evidence that the legislature intended to grant rent control powers to municipalities can be found in the attempt which failed in the Senate to so amend CS/HB 020 Ch supra as to prevent the exercise of such power by municipalities. See Journal of the Senate June 973 at 775 amendment 4. t is within the legislative prerogative to define and to extend the definition of constitutional language. ts action in this respect is controlling so long as the legislation measures up to the test of a reasonable relationship to the purposes which the constitution prescribes and requires to be served. This is so even though such statutory definition conflicts with earlier judicial definitions of constitutional concepts or language rendered in the absence of an explicit statute. Jasper v. Mease Manor nc. 208 So.2d 82 Fla. 968 Ammerman v. Markham 222 So.2d 423 Fla. 969 Greater Loretta mprovement Assn v. State ex rel. Boone 234 So.2d 665 Fla As stated in Greater Loretta mprovement Assn at 670 When the Legislature has once construed the Constitution for the courts then to place a different construction upon it means that they must declare void the action of the Legislature. t is no small matter for one branch of the government to annul the formal exercise by another of power committed to the latter. The courts should not and must not annul as contrary to the Constitution a statute passed by the Legislature unless it can be said of the statute that it positively and certainly is opposed to the Constitution. This is elementary. When legislative intent is found in the language and purposes of the statute that intent has the force of becomes and is the law. American Bakeries Co. v. Haines City 80 So. 524 Fla. 938 United Bonding Co. v. Tuggle 26 So.2d 80 2 D.C.A. Fla. 968 Small v. Sun Oil Co. 222 So.2d 96 Fla n any event 45

3 i ti e the ll This E a ANNUAL REPORT OF THE ATTORNEY GENERAL The Ch supra is prqsumptively valid until judicially declared otherwise and until declared invalid it must be given effect. Evans v. Hillsborough County 86 So. 93 Fla. 938 Jackson v. Consolidated Government of City of Jacksonville 225 Sold 497 Fla only exceptions to or limitations upon the legislative power granted to the municipalities by the Municipal Home Rule Powers Act are those expressly provided for in the statute e.g d and 4 and other restrictions in rya l - kx the statutes not. material or pertinent to the instant question. Under the rule of statutory construction expressio unius est exclusio alterius in cases where a statute sets forth exceptions no others maybe implied to be intended. Williams v. American Surety Company of New York 99 Sold D.C.A. Fla maxim was also discussed in Dobbs v. Sea sle Hotel 56 So.2d Fla. 952 The legislature made one exception to the precise language of the statute of limitations. We apprehend that had the legislature intended to establish other exceptions it would have done so clearly and unequivocally. We must assume that it thoroughly considered and. purposely preempted the field of exceptions to and possible reasons for tolling the statute. We cannot write into the law any other exception nor can we create by judicial fiat a reason or reasons for tolling the statute since the legislature dealt with such topic and thereby foreclosed judicial enlargement thereof. The exceptions provided by the legislature are provisos within the act. The function of such a proviso is not to enlarge or extend the act of which section it is a part rather to be a limitation or a restraint upon the language which the Legislature has employed. A proviso is to be construed strictly and limited to objects fairly within its terms or to qualify or restrain its generality. Farrey v. BettendorJf 96 So.2d Fla Also see but 4 Will State Road Dept. v. Levato 92 Sold 35 4 D.C.A. Fla. 966 Cert. disch d. id. 99 Sold 74 Fla Except therefore for those acts expressly prohibited by the statute or by the Constitution as construed by the legislature in the enactment of Ch supra the municipalities have the same legislative powers for municipal purposes as defined by the statute as are possessed by the state legislature. Conversely they are subject to the same constitutional limitations on the exercise of the police power in the area of rent control as is the state legislature. See Fleetwood supra at 804. r lij a. s Since therefore municipal PurPoses means any activity or power which may be exercised by the state since the law s ecificall states that a municipality. has the power to enact any legislation concerning any matter upon which the state riljl legislature may act and since rent control is a matter which can be acted upon by the state then it necessarily follows that under the Municipal Home Rule Powers Act a municipality would have the power to enact a rent control ordinance-unless that Ptcontrol of subject should be expresslypreempted to the state or county government by the Constitution or by general law preempted to a county pursuant to a county charter adopted under Art. V g 3 and 6 e State Const. or expresslyforbidden by the Constitution general law or county charter. Section and 4 F. S. am not aware of any general law specifically preempting to the state regulatory rent or expresslyprohibiting the exercise of municipal home rule power % li in the area of rent controls. t is true that the court in Fleetwood supra held that the f former rent control ordinance of the City of Miami Beach conflicted with certain 4.elf E l F sections of the Florida Landlord and Tenant Law Ch. 83 F. S. and in effect that state byy virtue of such law preempted to itself the regulation of the landlord-tenant relationship including the area of rent control. t might be noted ijl llw A 452 j a j iz. $ jl r

4 ANNUAL REPORT OF THE ATTORNEY GENERAL that the dissent in Fleetwood considered the majoritys position totally untenable and that Ch. 83 dealt with the duration and termination of nonfreehold estates rent removal of tenants and deposit money and did not anywhere mention rent control or in any way relate to rent control or to amounts of rent to be paid. The Fleetwood majority opinion acknowledged that upon a legislative enactment authorizing the exercise of such power by a municipality a municipality could enact rent control ordinances. Fleetwood at t has been established that the state may delegate to a municipality the right to exercise the police power of the state so as to warrant the enactment of a rent control ordinance during an. emergency. See 52 C.J.S. Landlord and Tenant See also 6 C.J.S. Const. Law 78. Chapter suprain my opinion operates to effect a delegation of the states police power to municipalities for municipal purposes as defined by that statute. The state of course cannot delegate a power broader than the power it possesses. The U.S. Supreme Court has placed severe limitations on the power of the state in the general area of rent control legislation. The Supreme Court has held that the only justification for the utilization of such legislation is an emergency. Fleetwood at 804 Levy Leasing Co. v. Siegel 258 U.S An increase in the cost of livingan inflationary spiral of itself is not a justification for rent control legislation. Chastelton Corp. v. Sinclair 264 U.S t can therefore be. said that the legislative intent manifest in Ch supra is to delegate to municipalities the power to regulate in the area of rent control to the same extent as the state itself might so regulate and subject to the same limitations on-such power as the state is subject to under the 5th and 4th amendments to the U.S. Constitution and their counterparts or similar constitutional provisions found in Art. State Const. Chapter supra with its construction and definition of the constitutional concepts of home rule power for municipalities is the latest legislative expression on the subject of home rule power to regulate in the area of rent control. To the extent of any conflict with the landlord-tenant statute Ch. 83 F. S. in the area of rent control Ch supra must prevail in such public emergency situations as described in Fleetwood supra. To that extent and in such public emergencies Ch supra impliedly modifies or supersedes such emergency situations there is a superimposition of the police power Ch. 83. n of the state in the area of rent control over the otherwise constitutionally protected area of private contractual rights in order to protect and give effect to the common public welfare health and safety. All rights are subject to a reasonable exercise of the police power which is coextensive with public necessity and the safeguards of the public interest. See 6 C.J.S. Constitutional Law 75 et seq. 52 C.J.S. Landlord-Tenant 55. et. seq. n accordance with the rules as to the exercise of the police power in such respect generally a statute or ordinance regulating rents designed for the health and welfare of the citizens is a valid and legitimate exercise of the police power of the state provided there is a valid finding of the existence of a public emergency the statute or ordinance is reasonable and not arbitrary the legislation has a reasonable relation to the end sought to be achieved and it is not discriminatory. 52 C.J.S. Landlord-Tenant Since Ch supra also postdates Fleetwood and Admiral Development Corporation supra and delegates to the municipalities the requisite legislative power to regulate in the area of rent control when justified by a state of emergency such cases no longer control the question of enacting rent control ordinances in emergencies or deny to municipalities such home rule power. The legislature explicitly declared the legislative purpose to be to remove any limitationjudicially imposed or otherwise on the municipalities home rule powers expressly imposed in the statute. other than those Therefore for the above reasons am of the opinion that the Municipal Home 453

5 i E l r ANNUAL REPORT OF THE ATTORNEY GENERAL Rule Powers Act does grant to municipalities all powers not expresslyprohibited in zl the act including the power to enact rent control ordinances which are exercisable by the state. The act lays out certain specified exceptions which include areas expressly forbidden by the Constitution preempted to state or county government by the Constitution or general law preempted to a county pursuant to a county r charter adopted under the authority of Art. V 3 and 6e State Const. or prohibited by certain special laws a-d Ch Laws of Florida and repeals all other limitations on municipal powers contained in any municipal charter Ch Laws of Florida.. These are the only exceptions to the act and the only powers which municipalities do not possess as of October July CONSTTUTONAL LAW GOVERNORS VETO OF PROVSO APPENDED TO APPROPRATONS BLL-EFFECT ON APPROPRATON TSELF To Betty Easley Representative 56th District Clearwater Prepared by Rebecca Bowles Hawkins Assistant Attorney General QUESTON n Does the governors veto of a proviso appended to a specific lir appropriation in the general appropriations bill automatically carry with it a veto of the appropriation itself SUMMARY k 4 il Under Art. 8a State Const. providing that the governor may not veto any qualification or restriction upon a specific appropriation without also vetoing the related appropriation a veto of such a qualification or restriction alone does not have the effect of automatically vetoing the related appropriation. 5 Slll isp that The applicable constitutional provision Art. 8a State Const. provides n all cases except general appropriation billsthe veto shall extend to the entire bill. The governor may veto any specific appropriation in a general appropriation bill but may not veto any qualification or restriction without also vetoing the appropriation to which it relates. Emphasis supplied. n interpreting a constitutional provision the object is to ascertain and effectuate the intention and purpose of the people in adopting it. As stated in Amos v. Mathews 25 So Fla. 930 That intention and purpose is the spirit of the Constitution-as obligatory as its written word. That spirit however cannot consist of mere sophistry nor of fanciful or conjectural theory. t must be found in those implications and intendments which clearly flow fromthe express mandates of the Constitution when considered in the light of circumstances and historical events leading up to its adoption fromallof which the purpose of the people in adopting it is to be gleaned t4ais3. The governors power of veto under the 885 Constitution-Art. V 8-extended to any item or items of any bills making appropriations of money embracing distinct items. n Green v. Rawls 22 So.2d 0 Fla. 960 the court q ft 454

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