Guns, Styrofoam and Trees

The City’s Fight for Local Rights

October 2019

The Gables is currently dealing with state legal challenges to its local authority, in particular its ability to regulate the sale of automatic weapons, to restrict the use of Styrofoam, and to prevent property owners from randomly cutting down trees.

On the firearms front, the city voted last year to ban the sale of assault rifles in the Gables. That ban was rescinded in the face of a 2011 NRA-backed Florida law which states that municipalities can’t do that. Moreover, if a city does try to ban assault rifles, the law allows the governor to remove any elected officials who voted for the ban, and to fine the local lawmakers $5,000 each. It also allows citizens to sue the lawmakers for fees of up to $100,000.

What’s more, the city cannot pay the fines or pay to defend the individual lawmaker. “It’s really crazy,” says Coral Gables City Attorney Miriam Ramos. “One of the main concepts of government is that you are insulated from lawsuits when you act in a public capacity.”The city challenged the penalty portion of the law, and in July a judge ruled that it was unconstitutional. The state of Florida is appealing that ruling.

On the Styrofoam front, the city is moving ahead with a request that the Florida Supreme Court rule against a state law banning local governments from regulating food containers. In 2016, Coral Gables joined the ranks of other pro-environment cities by banning the use of Styrofoam as a food container. The Florida Retail Federation sued the city, but a Miami-Dade County circuit judge ruled the state law unconstitutional. The FRF appealed, and the Third District Court of Appeal overturned the county ruling, saying the state ban was, in fact, constitutional.

That same Third DCA recently denied the city’s motion to certify the question for consideration by the Florida Supreme Court, as to why it’s important to the public. “Having the appellate court certify the question increases the chances of the Supreme Court taking it up,” says Ramos. “But we are moving ahead anyway with our request.” We will keep you posted.

Finally, on the tree front, the city is trying to deal with a new state law, 163.045, that prohibits local governments from requiring permits for the removal of trees on residential property – so long as the homeowner has “documentation” from a licensed landscape architect or arborist that the tree poses a potential threat to property or lives. Previously, anyone who wanted to cut down a tree in Coral Gables had to file for a permit. Such permits could be denied if it was rare or spectacular “specimen” tree. Or, mitigation could be agreed upon, allowing the tree to be removed so long as it is replaced. “If we slowly start to chip away at the canopy and don’t have to replace it, over time we will lose something very important to Coral Gables,” says Ramos. Currently the new law is being challenged by other cities. “We are following that case very closely, and we’ll probably add this to our legislative suggestions [when city officials visit Tallahassee]. This again takes away local control and gives it to private companies – and to the state,” says Ramos. “It represents another preemption of local authority.”