Waterway in Coral Gables. Photo: Jorge R. Gonzalez/Shutterstock.com

A South Florida appellate court has delivered a major blow to municipalities looking to enact what they say are eco-friendly rules and regulations against nonbiodegradable waste.

Florida's Third District Court of Appeal on Wednesday ruled against Coral Gables' law prohibiting the use of food-related polystyrene containers, widely branded as Styrofoam.

The appellate panel's opinion, which reversed and remanded a Miami-Dade Circuit Court judgment favoring the city, held that Florida statutes superseded the rule.

"The trial court, in finding three state statutes unconstitutional, relied exclusively on the presumption that ordinances are valid, but failed to consider the strong, competing presumption that 'statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome," the opinion said.

The matter came before the Third DCA following an appeal from business advocacy group the Florida Retail Federation, and its member, Coral Gables-based business Super Progreso.

The litigation began in July 2016, about four months after Coral Gables banned the sale and use of plastic foam. Super Progreso and the Florida Retail Federation challenged the legality of that ordinance, filing a complaint against the city in Miami-Dade Circuit Court.

Their lawsuit sought an injunction and declaratory relief against Coral Gables for violating state laws, which forbid local governments from implementing "any rule regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of . . .  auxiliary containers, wrappings or disposable plastic bags."

The complaint also cited a state law prohibiting municipalities from overseeing the "regulation of the use or sale of polystyrene products," such as Styrofoam.

After the trial court ruled in the city's favor, the plaintiffs appealed in March 2017.

Wednesday's appellate opinion specified the same Florida statutes as the initial complaint but disagrees with the lower court's determination that the state statutes were unconstitutional and "lack the necessary standards and guidelines for implementation, rendering them unconstitutionally vague."

Instead, the Third DCA held the laws fail to transfer legislative authority, and do not violate Florida Constitution's nondelegation doctrine.

Read the opinion:

The appellate court also rebuffed Coral Gables' argument that Florida laws concerning disposable containers violated Miami-Dade County's home-rule amendment.

"It is well-established that the Home Rule Amendment must be strictly construed to maintain the supremacy of general laws," the opinion said. "Although [Coral Gables] may have been the first municipality to regulate polystyrene after Jan. 1, 2016, [Florida law] does not impermissibly single out the city or Miami-Dade County."

The ruling concluded that the state laws are unambiguous "and by their plain language preempt the city's ordinance regulating 'polystyrene containers.'"

Dexter Lehtinen and Claudio Riedi of Miami law firm Lehtinen Schultz served as Florida Retail Federation's attorneys during the litigation. Riedi deferred to his client when asked to comment on the ruling.

Scott Shalley, Florida Retail Federation's president and CEO, praised the Third DCA's conclusion.

"We commend the court as this decision reinforces the legislature's ability and authority to govern these issues on a statewide basis," Shalley said.

He added that the order helps ensure Florida remains business-friendly "by avoiding a patchwork of regulations by the more than 400 local governments."

"Our retailers spend millions of dollars every year on identifying ways to reduce our collective ecological footprint," Shalley said. "We will continue to focus on solutions that are based on science and the importance of responsible consumer education and behavior."

Shalley also thanked Florida Attorney General Ashley Moody's office for its assistance in representing the organization. Kylie Mason, spokesperson for the attorney general, declined to comment, citing pending litigation.

Coral Gables City Attorney Miriam Ramos expressed dismay over the ruling, which she says now renders all local regulations governing plastic bags, plastic foam containers and other single-use plastics in violation of Florida law.

"Our legal team is currently reviewing the court's order in depth and developing our recommendations for the City Commission's consideration," she said. "The city remains steadfast in its commitment to protecting our environment, which includes eliminating the use of harmful items like polystyrene and plastic bags. The city also remains wholly committed to defending home rule and local control."

Others litigators who had filed amicus briefs on Coral Gables' behalf also expressed frustration. Among them: Bonnie Malloy, a staff attorney with the Florida branch of environmental law group Earthjustice, and Miami Beach City Attorney Raul Aguila, who both said the decision was a major setback for environmental laws.

Aguila said the opinion marked a sad day for environmentalists and "other local, coastal municipalities, like Surfside and Bal Harbour, which passed legislation banning plastic bags within their jurisdictions, based on the lower court's opinion regarding Coral Gables' ordinance.

"Now that that opinion has been reversed, these cities may have no choice but to repeal their legislation or face the potential of legal challenges to those laws," Aguila said. The  appellate order "highlights the continuing negative impact and ongoing challenges that progressive local governments in Florida continue to face."

In the meantime, Ramos said she hopes Coral Gables vendors will stick with any changes they'd made, despite of the city's now-toothless rule.

"I hope that we've effectuated change," she said. "If you've found a more sustainable alternative, we hope that you continue to use that and not go back to using something we know for a fact is very harmful to the environment."

 

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