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Florida Retail Federation, Inc. v. The City of Coral Gables

Florida Court of Appeals, Third District

August 14, 2019

Florida Retail Federation, Inc., et al., Appellants,
v.
The City of Coral Gables, Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-18370, Jorge E. Cueto, Judge.

          Ashley Moody, Attorney General, and Amit Agarwal (Tallahassee), Solicitor General; Lehtinen Schultz Riedi Catalano De la Fuente, PLLC, and Dexter W. Lehtinen, and Claudio Riedi, for appellants.

          Craig E. Leen, City Attorney, and Miriam S. Ramos, Deputy City Attorney; Kozyak Tropin & Throckmorton LLP, and Corali Lopez-Castro, Rachel Sullivan and Mindy Y. Kubs, for appellee.

          Erin Deady (West Palm Beach); Derek Howard; Roget V. Bryan, for City of West Palm Beach, Monroe County, and Islamorada, Village of Islands, as amici curiae.

          Raul J. Aguila, City Attorney, and Nicholas Kallergis, Assistant City Attorney; Jean K. Olin, for City of Miami Beach, as amicus curiae.

          Earthjustice and Bonnie A. Malloy (Tallahassee), for Surfrider Foundation, Campaign to Defend Local Solutions, League of Women Voters of Florida, Legal Scholars, 1000 Friends of Florida, ReThink Energy Florida, Florida Wildlife Federation, Save the Manatee Club, and Center for Biological Diversity, as amici curiae.

          Before FERNANDEZ, LINDSEY, and HENDON, JJ. [1]

          LINDSEY, J.

         I. INTRODUCTION

         In 2016, the City of Coral Gables (the "City") passed an Ordinance prohibiting food service providers and stores from selling or using expanded polystyrene (i.e. Styrofoam) containers. The Florida Retail Federation and Super Progreso[2] (collectively "FRF") filed the underlying complaint seeking a declaration that the City's Polystyrene Ordinance was preempted by three separate Florida Statutes: sections 403.708(9), 403.7033, and 500.90. Because the trial court erred in finding the three statutes unconstitutional and concluding that the City's Polystyrene Ordinance was not preempted, we reverse.

         II. BACKGROUND

         This appeal concerns the validity and preemptory effect of the following three state statutes, which the trial court concluded were unconstitutional:

• Section 403.708(9) (enacted in 1974[3]) provides that "[t]he packaging of products manufactured or sold in the state may not be controlled by governmental rule, regulation, or ordinance . . . ."
• Section 403.7033 (enacted in 2008) prohibits local governments from enacting "any rule regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of . . . auxiliary containers, wrappings, or disposable plastic bags."
• Section 500.90 (effective July 1, 2016) preempts the "regulation of the use or sale of polystyrene products" by local ordinances enacted after January 1, 2016.

         The City enacted Ordinance 2016-08 on February 9, 2016.[4] The Ordinance generally prohibits "[f]ood service providers and stores" from selling, using, offering for sale, or "provid[ing] food or beverages in expanded polystyrene containers." City of Coral Gables, Fla., Code of Ordinances § 34-264(a) (2019).[5]On April 26, 2016, the City passed Ordinance 2016-28, "exercise[ing] its Home Rule powers under article VIII, section 6 of the Florida Constitution of 1968 to conflict with, modify, and nullify the polystyrene ...


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