Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
A conflict between a Florida state preemption statute and the City of Miami Beach’s minimum wage ordinance is coming to bear. The end result of the pending litigation on the subject will likely determine the extent to which Florida local governments can enact living wage ordinances and similar laws.
Florida Statutes section 218.077 provides that cities and counties within the state are preempted from enacting local wage ordinances. The statute does, however, allow for local wage ordinances to be applied to the local government’s own employees, as well as to the employees of local government contractors and subcontractors.1 In June of 2016, the City of Miami Beach passed a wage ordinance establishing a new citywide minimum wage at $10.31 effective January 1, 2018, with a dollar increase each year until 2021. This ordinance would have applied to all private employees working within the City’s boundaries, not just those of government contractors and subcontractors. The Florida Retail Federation, Inc., Florida Restaurant and Lodging Association, Florida Chamber of Commerce, Inc., CEFRA, Inc., Start Again, Inc., and Gavin Shamrock, Inc. challenged the ordinance within a few months of passage and asserted in their lawsuit that the ordinance directly violated section 218.077. The plaintiffs and the City of Miami Beach each filed motions for summary judgment. On March 28, 2017, Judge Peter R. Lopez of Florida’s Eleventh Judicial Circuit granted summary judgment in the plaintiffs’ favor, finding that section 218.077 preempted the ordinance, thus rending the ordinance invalid.
The court reasoned that Florida municipalities are given broad authority to enact ordinances under their municipal home rule powers; however, municipal ordinances must necessarily yield to preemptive state statutes, unless a Florida constitutional provision prohibits state-level preemption. In support of its position, the City of Miami Beach referenced Article X, section 24(f) of the Florida Constitution, which provides that it “shall not be construed to preempt or otherwise limit the authority of the state legislature or any other public body to adopt or enforce any other law . . . that provides for payment of higher or supplemental wages.” The City of Miami Beach claimed this language as an explicit state constitutional authorization for municipalities to pass and enforce minimum wage provisions at rates higher than those set by the state or federal government. In contrast, the plaintiffs argued that the state preemption statute (which the legislature enacted in 2003 and amended in 2013) preempted local wage ordinances such as the one passed by the City of Miami Beach. The court held that the clear and unambiguous language of Article X, section 24(f) of the Florida Constitution—a 2004 amendment—does not invalidate the Florida legislature’s preemption powers, let alone reference or repeal the state wage preemption statute that was codified and existed at the time of the constitutional amendment. Thus, the court concluded that section 218.077 invalidated the City of Miami Beach’s wage ordinance. The City of Miami Beach has filed an appeal to Florida’s Third District Court of Appeal.
While the end result of this and similar litigation cannot be predicted, the decision is anticipated to have a significant impact on municipal attempts to implement minimum wage ordinances.
1 The relevant provision of the statute provides:
(2) Except as otherwise provided in subsection (3), a political subdivision may not establish, mandate, or otherwise require an employer to pay a minimum wage, other than a state or federal minimum wage, to apply a state or federal minimum wage to wages exempt from a state or federal minimum wage, or to provide employment benefits not otherwise required by state or federal law.
(3) This section does not:
(a) Limit the authority of a political subdivision to establish a minimum wage other than a state or federal minimum wage or to provide employment benefits not otherwise required under state or federal law:
1. For the employees of the political subdivision;
2. For the employees of an employer contracting to provide goods or services for the political subdivision, or for the employees of a subcontractor of such an employer, under the terms of a contract with the political subdivision; or
3. For the employees of an employer receiving a direct tax abatement or subsidy from the political subdivision, as a condition of the direct tax abatement or subsidy.
Fla. Stat. § 218.077(2), (3) (emphasis added).