Can a Florida city pass an ordinance giving bidding preference to local contractors and businesses?

Plain-English summary

State Representative John Tobia told the Attorney General's office he was thinking about filing a bill in the 2011 session on local governments adopting ordinances that favor local contractors. A senior assistant attorney general (Gerry Hammond) responded with informal comments, not a formal numbered opinion, to help the representative think through the issue.

The comments laid out the legal landscape. Florida municipalities have broad home rule powers under Article VIII, section 2(b) of the constitution and section 166.021(1), Florida Statutes: they may exercise any power for municipal purposes unless it is preempted to the state or county or conflicts with the constitution or a statute. The office pointed out that the Legislature itself has enacted many preference statutes (for veterans, minority business enterprises, Florida-licensed professionals, Florida-made commodities, and foreign manufacturers that employ Florida residents), which illustrates how broadly local governments might legislate in this area under home rule.

On the courts, the office flagged City of Port Orange v. Leechase Corporation, where a Florida appellate court upheld a city bidding ordinance that preferred bidders headquartered in the city, finding no state or federal public policy that barred it. The office distinguished Marriott Corporation v. Metropolitan Dade County, where a local-bidder award was struck because the governing competitive-bidding rule contained no local-preference provision. The takeaway the office offered was that a properly enacted ordinance can support a local preference.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Article VIII, section 2(b) of the Florida Constitution grants municipalities governmental, corporate, and proprietary powers to conduct municipal government and exercise any power for municipal purposes except as otherwise provided by law. In State v. City of Sunrise, 354 So. 2d 1206 (Fla. 1978), the Florida Supreme Court held that this provision directly grants municipal authority, with the only limitation being that the power must serve a valid municipal purpose; statutes are relevant only to identify limits. Section 166.021(1), Florida Statutes, restates the same broad home rule grant, so municipalities may legislate on the same subjects as the Legislature unless a subject is preempted or in conflict.

To show the breadth of accepted preference legislation, the office listed statutory examples: veterans preference (section 110.2135), minority business enterprises (section 255.102), Florida-licensed brokers (section 255.25(3)(h)), the Seminole Tribe gaming compact provision (section 285.711), Florida-produced commodities (section 287.082), and a preference for foreign manufacturers with Florida factories employing over 200 residents (section 287.092).

On case law, City of Port Orange v. Leechase Corporation, 430 So. 2d 534 (Fla. 5th DCA 1983), reversed a trial court that had voided a city's local-preference bidding ordinance, holding there was no contravening public policy in the constitutions or statutes. The court declined to second-guess the wisdom of a duly enacted ordinance that the city had followed. It distinguished Marriott Corporation v. Metropolitan Dade County, 383 So. 2d 662 (Fla. 3d DCA 1980), where the county's award to a non-low local bidder was reversed because the controlling competitive-bidding resolution had no local-preference provision. The office enclosed two earlier formal opinions, AGO 2002-03 and AGO 2001-65, for further reference.

Citations and references

Constitutional and statutory provisions:

• Art. VIII, § 2(b), Fla. Const. (municipal home rule)
• § 166.021(1), Fla. Stat. (municipal home rule powers)
• §§ 110.2135, 255.102, 255.25(3)(h), 285.711, 287.082, 287.092, Fla. Stat. (examples of statutory preferences)

Cases:

• State v. City of Sunrise, 354 So. 2d 1206 (Fla. 1978), scope of municipal home rule
• City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974)
• City of Port Orange v. Leechase Corporation, 430 So. 2d 534 (Fla. 5th DCA 1983), local-preference ordinance upheld
• Marriott Corporation v. Metropolitan Dade County, 383 So. 2d 662 (Fla. 3d DCA 1980), distinguished

Prior Attorney General opinions enclosed: AGO 2002-03 and AGO 2001-65.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/local-government-preference-to-local-businesses
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8177

Original opinion text

The Honorable John Tobia

Representative, District 31

1901 South Harbor City Boulevard

Suite 508

Melbourne, Florida 32901

Dear Representative Tobia:

You have advised this office that you are considering introducing legislation during the 2011 legislative session on the issue of local governments adopting preference ordinances favoring local contractors. Attorney General McCollum has asked me to respond to your letter.

The Florida Statutes currently contain numerous examples of state statutes authorizing preferential treatment of contractors and providers of goods and services and the Florida Attorney General's Office has, on a number of occasions, issued formal opinions on this subject. I am enclosing copies of two relatively recent Attorney General Opinions on this matter and providing the following informal comments in an effort to assist you. My comments are general and directed to municipal legislation, but similar arguments could be made for other local governmental agencies.

Section 2(b), Article VIII of the Florida Constitution provides, in part that:

"Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law."

The Florida Supreme Court has stated that this constitutional provision "expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services."[1] The Court stated, in State v. City of Sunrise, that the only limitation on the power of municipalities under this constitutional section is that such power must be exercised for a valid municipal purpose. As determined by the Court, "[l]egislative statutes are relevant only to determine limitations of authority" and municipalities need no further authorization from the Legislature to conduct municipal government.[2]

Pursuant to section 166.021(1), Florida Statutes, municipalities are granted "the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law." Thus, municipalities may legislate to the same extent and on the same subjects as the Legislature so long as they do not address subjects preempted to the state or county or conflicting with existing statutes or the Constitution.

The Florida Legislature has enacted numerous statutes providing preferential treatment for various groups: veterans of military service, minority business enterprises, Florida licensed professionals, and members of Indian Tribes.[3] Commodities manufactured, grown, or produced in Florida are given special treatment in the statutes.[4] Foreign manufacturers with factories in Florida who employ over 200 resident employees are provided preference in section 287.092, Florida Statutes. These examples are provided to illustrate the extent to which the Florida Legislature has adopted preferential legislation and to suggest how broadly local governmental entities may legislate in this area under their home rule powers.

With regard to judicial decisions addressing local preference ordinances, the Fifth District Court of Appeals case, City of Port Orange v. Leechase Corporation,[5] may provide some direction. In that case, the district court reviewed the legality of a municipality's bidding ordinance giving preference to bidders whose principal places of business were located within the municipality. The lower court had found the ordinance to be flawed as against public policy. The district court reversed, finding no contravening public policy established by the state or federal constitutions, or by state statute, that would preclude the municipality from enacting such an ordinance. Given the existence of a duly enacted ordinance that the municipality had followed, the court refused to evaluate the wisdom of the ordinance's enactment. The district court distinguished these circumstances from those in Marriott Corporation v. Metropolitan Dade County,[6] where the court reversed the county commission's award of a contract to a local bidder who was not the lowest bidder when there existed a permanent resolution (tantamount to an ordinance) providing for the competitive bidding of such contracts with no provision for local preference.

I trust that these informal comments may be helpful to you in crafting legislation during the 2011 legislative session.

Sincerely,

Gerry Hammond

Senior Assistant Attorney General

GH/srh

Enclosures: AGO's 2002-03 and 2001-65

[1] State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978).

[2] Supra at 1209. See also City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974).

[3] See, e.g., s. 110.2135, Fla. Stat., Florida's veterans preference statute; s. 255.102, Fla. Stat., providing preferences for minority business enterprises; s. 255.25(3)(h), Fla. Sat., providing a preference to Florida licensed brokers; s. 285.711, Fla. Stat. (2009), Part XVIII G, Gaming Compact Between Seminole Tribe and State of Florida.

[4] See s. 287.082, Fla. Stat.

[5] 430 So. 2d 534 (Fla. 5th DCA 1983).

[6] 383 So. 2d 662 (Fla. 3d DCA 1980).