CopyPublished | Florida 5th District Court of Appeal
...Such an ordinance,
by its nature, would be unconstitutional.
In 1977, the Florida Legislature passed a law limiting the ability of local
governments to pass any measure imposing “controls on rents.” See §
3
125.0103(2), Fla....
...find and determine “that such controls are necessary and proper to eliminate
an existing housing emergency which is so grave as to constitute a serious
menace to the general public.” Id. Second, any such measure may not be
imposed for longer than one year. Id. § 125.0103(3). Third, certain types of
properties, like second homes, are completely exempted from rent controls.
Id. § 125.0103(4).
The law also requires a regimented process before a local government
can pass a rent control ordinance. Id. § 125.0103(5). The local
government’s governing body must duly adopt the ordinance after notice and
public hearing. Id. § 125.0103(5)(a)....
...In the resulting ordinance, the local
government must recite “its findings establishing the existence in fact of a
housing emergency so grave as to constitute a serious menace to the
general public and that such controls are necessary and proper to eliminate
such grave housing emergency.” Id. § 125.0103(5)(b). Finally, the local
government’s voters must approve the measure. Id. § 125.0103(5)(c). If the
ordinance is ever challenged in court, the local government bears the burden
of upholding its validity. Id. § 125.0103(6)....
...The County Attorney advised that Florida law imposed strict limits
on the County’s ability to enact such a measure, and that it was “unlikely that
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findings of an increase in the cost of living or inflation alone will be sufficient
to meet the requirements of [section 125.0103, Florida Statutes].”
The County held three additional meetings to consider additional
information that would ultimately inform the findings in its rent control
ordinance....
...This additional information included data about evictions and
home sale costs. The County also entertained public comment.
In August 2022, following a public meeting, the County adopted
Ordinance 2022-29 (“the Ordinance”) by a 3–2 vote. As required by section
125.0103(5)(b), the Ordinance listed findings supporting its contention that a
housing emergency existed in Orange County “so grave as to constitute a
serious menace to the general public and that such controls are necessary
and proper...
...olates it is subject to potential civil
citations and fines imposed by the County’s code enforcement board of up
to $15,000 per violation, and potential criminal prosecution resulting in a fine
up to $500 and 60 days in jail.
Finally, as section 125.0103(5)(c) requires, the Ordinance provides
that it will be placed on the ballot of the November 2022 general election for
consideration and action by the Orange County electorate....
...request for a temporary injunction. But it concluded that the Association had
a substantial likelihood of succeeding in its challenges against the Ordinance
and the ballot summary. In support of this conclusion, the trial court
recognized that section 125.0103(5)(b) required the County to make findings
supporting the existence of a housing emergency....
...Dep’t of Health v.
Florigrown, LLC,
317 So. 3d 1101, 1111 (Fla. 2021).
The trial court properly applied this four-part test, also correctly
identifying that the County had the burden to establish the Ordinance’s
12
validity. See §
125.0103(6)....
...The Association easily
meets this standard for both its challenges.
13
a. The Ordinance
First, the trial court properly determined the Association is likely to
succeed on the merits of its claim that the Ordinance is facially invalid under
section 125.0103, Florida Statutes, and Article VIII, § 1(g) of the Florida
Constitution....
...ith
general law.” In other words, the County may legislate in areas in which the
Florida Legislature has not “preempted” its authority.
We begin our analysis of this issue by examining the law in question.
Originally enacted in 1977, section 125.0103(2) currently outlines three
significant requirements before a county may adopt a rent control measure:
No law, ordinance, rule, or other measure which would have the
effect of imposing controls on rents shall be adopted...
...14
emergency”; 2) that is “so grave as to constitute a serious menace to the
general public”; and 3) that the proposed rent control measures are both
“necessary” and “proper” to “eliminate” the grave housing emergency. See
§ 125.0103(2), (5)(b), (6)....
...By examining each of the statute’s requirements,
we conclude that the Ordinance fails to identify or support any one of these
three requirements.
i. “[H]ousing emergency.”
First, the Ordinance’s findings do not illustrate “an existing housing
emergency,” as is required by section 125.0103(2) and (5)(b)....
... City of Miami
Beach v. Forte Towers, Inc.,
305 So. 2d 764, 771–72 (Fla. 1974) (Roberts,
J., concurring in part and dissenting in part).
Given this precedent, we may reasonably conclude that the
Legislature’s use of “emergency” in section
125.0103(2) and (5)(b) carried a
similar meaning, especially considering the United State Supreme Court’s
admonition that rent control legislation was only permitted in the face of an
“emergency.” See, e.g., Conage, 47 Fla. L. Weekly at S201 (noting that
existing precedent would inform reader of legislature’s work product, and
legislature itself, as to meaning of term).
Section
125.0103’s structure provides further evidence as to the scope
of the term “housing emergency.” Section
125.0103(3) provides that any
rent control ordinance “shall terminate and expire within 1 year” and cannot
be extended unless the county adopts a new measure meeting all of section
125.0103’s requirements.
Considering the ordinary meaning of the term “housing emergency” in
context, we conclude—as the trial court did—that the type of housing
emergency contemplated by section
125.0103 is sudden or unexpected,
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creating a temporary condition necessitating immediate or quick action. A
decision otherwise would require us to overlook the background in which the
term was adopted, dispense with dictionary definitions, and disregard the
structure of section
125.0103, which contemplates only a year-long
enactment.
The legislative findings in the Ordinance contradict the ordinary
meaning of “housing emergency” as used in this context....
...These
include a low unemployment rate, high rental occupancy, a high home sale
rate, and the regular retirement of stably paid workers.
Ultimately, in applying the ordinary meaning of a “housing emergency,”
as understood in the context of section 125.0103, we conclude that Orange
County cannot prove the “existence in fact” of a “housing emergency”
sufficient to justify the Ordinance under section 125.0103(2) and 5(b).
Accordingly, the trial court correctly determined that the Association is
substantially likely to succeed on the merits of its challenge to the
Ordinance’s validity.
ii. “[S]o grave as to constitute a serious menace to the
general public.”
Even if the County could prove the existence of a “housing
emergency,” section 125.0103 requires another showing it cannot make.
Specifically, the statute also requires that emergency be “so grave as to
constitute a serious menace to the general public.” § 125.0103(2), (5)(b).
The terms in this phrase are also undefined, so we again consider the
ordinary meaning of the terms in context.
19
“Menace,” used as a noun, generally means someone or something
that represents a threat or danger....
...disease, immorality, discomfort, and widespread social discontent.” Id.
Here, the County’s legislative findings are virtually devoid of findings
that the allegedly existing housing emergency is “so grave as to constitute a
serious menace to the general public.” § 125.0103(2)....
...ntrol measure. These are
21
not the sort of factors the United States Supreme Court described in Levy,
nor do they establish any sort of grave threat or danger to the people as a
whole, as contemplated by section 125.0103.
Therefore, applying the ordinary meaning of “so grave as to constitute
a serious menace to the general public” as understood in the context of
section 125.0103, we conclude that Orange County cannot meet the
statute’s requirements, even if it were to establish a “housing emergency.”
The trial court correctly determined that the Association is substantially likely
to succeed on the merits of its challenge to the Ordinance’s validity in this
aspect as well.
iii. “[N]ecessary” and “proper” to “eliminate” any grave
housing emergency.
A final and significant aspect of section 125.0103 further demonstrates
the Ordinance’s invalidity. Section 125.0103 states that even if there is a
“housing emergency,” and even if it is “so grave as to constitute a serious
menace to the general public,” counties still must demonstrate that the
ordinance is “necessary and proper to eliminate such grave housing
emergency.” § 125.0103(5)(b).
Dictionaries published close in time to the legislative enactment
illuminate the ordinary meaning of the word “eliminate,” demonstrating it
means to “get rid of,” expel, or eradicate....
...illustrates the difference between a housing crisis based on long-term
systemic factors, some of which may not be unique to Orange County, and
a housing emergency that a rent control measure may eliminate. The County
urges us to ignore the extremely high bar section 125.0103 imposes to allow
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enforcement of a rent control measure that may potentially make a housing
shortage worse....
...The trial court
did not err in doing so, reasoning that the County did not have the benefit of
the information when it enacted the Ordinance. This information could not
have informed the County’s mandated legislative findings because it did not
know the information existed. See § 125.0103(5)(b).
But even if this testimony had informed the County’s legislative
findings, or if the County could introduce this information at trial, it would
make no difference. This reflects just one of the many elements that make
section 125.0103 a unique and distinct statute. To satisfy it, the County had
to outline specific facts—in the form of legislative findings in the Ordinance—
that supported its contention that it met all three of the significant
requirements set forth in section 125.0103(5)(b)....
...v.
Home Builders Ass’n of W. Fla.,
325 So. 3d 981, 985 (Fla. 1st DCA 2021)
(quoting Fla. Dep’t of Health v. Florigrown, LLC,
320 So. 3d 195, 200 (Fla.
1st DCA 2019), quashed on other grounds by
317 So. 3d 1101 (Fla. 2021)).
The Ordinance plainly falls short of section
125.0103’s high bar, and thus, it
30
is unconstitutional....
...its judgment for that of Orange
County’s elected representatives. Respectfully, we disagree.
No public interest can be served by allowing the potential enforcement
of a rent control ordinance that fails to meet the facial requirements of section
125.0103, and Article 8, section 1 of the Florida Constitution....
...ltors had also
satisfied the remaining elements.
The County presented a plethora of facts supporting its position that a
housing crisis exists in Orange County, an emergency so grave as to
constitute a serious menace to the general public. § 125.0103(2), (5)(b), Fla.
Stat....
...ition was causing
widespread distress; that extortion in most
oppressive forms was flagrant in rent profiteering;
that, for the purpose of increasing rents, legal
2
The pertinent language of section 125.0103 mirrors that of Siegel.
36
process was being abused and eviction was being
resorted to as never before; and that unreasonable
and extortionate increases...
...The County, having examined all the
facts, which objectively could be characterized as a perfect storm, decided
to act. 6 It determined that Orange County is in the midst of a grave housing
emergency, constituting a serious menace to the general public. §
125.0103(2), (5)(b), Fla. Stat.
Accordingly, I would find that, as a matter of law, the County has met
its burden under section 125.0103....
CopyPublished | Florida 6th District Court of Appeal
...“Ordinance”) to provide rent stabilization for the citizens of Orange County by
imposing a limit on both the amount by which rent could be increased and the
frequency with which increases could occur. At the time Orange County sought to
enact the Ordinance, section 125.0103(2), Florida Statutes (2021), authorized rent
control ordinances under only one circumstance:
No law, ordinance, rule, or other measure which would
have the effect of imposing controls on rents shall be...
...is expressly preempted by the State
Constitution or by state law . . . .”).
A temporary injunction was eventually issued. 1 After entry of the temporary
injunction but prior to the conclusion of the case, the Florida Legislature amended
section 125.0103, eliminating the Exception. See § 125.0103, Fla. Stat. (2023).
Accordingly, Orange County filed a suggestion of mootness, signifying that section
125.0103’s amendment fully resolved the controversy such that a judicial
determination would have no effect....
...onsequence that precluded dismissal.
The trial court dismissed Appellants’ complaint, ruling that section
57.112
was inapplicable to the underlying action because Appellants did not challenge the
Ordinance as being expressly preempted by section
125.0103, and concluding that
Appellants could not challenge it as being expressly preempted because there was
1
After filing suit, Appellants unsuccessfully sought a temporary injunction to
stop Orange County from enacting...
...so grave as to affect the general public). On remand, the trial court issued the
temporary injunction preventing Orange County from implementing or enforcing
any provision of the Ordinance.
3
no specific statement of preemption in section
125.0103 at the time Orange County
sought to enact the Ordinance.
This Court is called upon to resolve two issues: (1) whether the trial court
erred by determining that section
57.112 was inapplicable to the underlying action;
and (...
...By its plain language, the
statute is applicable to an underlying action only if the prevailing party’s challenge
was based on a claim that the ordinance was expressly preempted by either state law
or the Florida Constitution. Thus, if Appellants’ challenge was based on a claim that
section
125.0103 expressly preempted Orange County’s adoption of the Ordinance,
then section
57.112 is applicable. In concluding that it was, we first consider
2
Our analysis of sections
57.112 and
125.0103 proceeds under the de novo
standard of review....
...6th DCA 2023)
(“[A] trial court’s interpretation and application of a statute is reviewed de novo.”
(citing McGovern v. Clark,
298 So. 3d 1244, 1248 (Fla. 5th DCA 2020))).
4
Appellant’s argument that section
125.0103 contains the requisite language of
preemption.
Section
125.0103 contained the following language when the Ordinance was
challenged:
(1)(a) Except as herein provided, no county ....
...and unless it is found and determined, as hereinafter
provided, that such controls are necessary and proper to
eliminate an existing housing emergency which is so grave
as to constitute a serious menace to the general public.
§ 125.0103(1)(a), (2), Fla. Stat. (2021).
In reviewing the language of section 125.0103, we are mindful that no magic
words are required to express preemption, but what is required is language reflecting
a clear legislative intent....
...In such
cases, “there is no problem with ascertaining what the Legislature intended.” Id.
(citing Tallahassee Mem’l Reg’l Med. Ctr., Inc. v. Tallahassee Med. Ctr., Inc.,
681
So. 2d 826, 831 (Fla. 1st DCA 1996)).
Even without the appearance of either the word “preempt” or “preemption” in
section
125.0103, we hold that the language in this section evinces a clear legislative
intent to preclude, i.e., preempt, local government from imposing a rent control
ordinance unless it meets the criteria of the Exception....
...er in providing that local ordinances on
‘a matter covered by’ the chapter are preempted unless an ordinance is ‘expressly
authorized’” (emphasis in original)). Consequently, the only way the Ordinance
could have been sustained prior to section
125.0103’s amendment was if it met the
criteria of the Exception; otherwise, it was preempted.
Having determined that section
125.0103 contained language expressly
preempting local government from passing rent control ordinances except under one
6
circumstance, our next query is whether Appellants triggered section
57.112...
...prohibited from adopting ordinances that would have the effect of imposing rent
control.” Appellants acknowledged the Exception to this rule but alleged that the
Ordinance failed to satisfy the criteria of the Exception “and therefore violate[d]
both section 125.0103 of the Florida Statutes, and Article VIII, section 1(g), of the
Florida Constitution.” 3 By alleging that Orange County was prohibited from
enacting the Ordinance under section 125.0103, Appellants put Orange County on
notice that the Ordinance was expressly preempted by general law....
...just as Appellants’ complaint alleged, prohibited under general law, i.e., expressly
preempted. Accordingly, section
57.112 was applicable to the underlying action
because Appellants challenged the Ordinance on the grounds that it was expressly
preempted and section
125.0103 does, in fact, contain language of express
exemption.
Having resolved the first issue in favor of Appellants by determining that the
trial court erred in finding that section
57.112 was inapplicable, we turn next to the
sec...
