New Florida Law May Preempt Local Architectural and Signage Regulations

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House Bill 1021 prohibits local governments from adopting or enforcing regulations that conflict with corporate trademarks, logos, color patterns, or branding of business activities related to gas stations or other franchises. That means that some commercial franchises or gas stations may be able to show that their trademark color patterns and logos should be approved even if otherwise in conflict with the local architectural standards.

The Bill became effective on July 1, 2017 and created Section 553.79(20), Florida Statutes.¹/  Section 553.79(20) preempts local governments from enforcing regulations that:

  1. Contain any building, construction, or aesthetic requirement or condition that conflicts with or impairs corporate trademarks, service marks, trade dress, logos, color patterns, design scheme insignia, image standards, or other features of corporate branding identity on real property or improvements thereon used in activities related to the sale of liquid fuels, or in carrying out business activities defined as a franchise by Federal Trade Commission regulations in 16 C.F.R. ss. 436.1, et. seq.; or
  2. Impose any requirement on the design, construction, or location of signage advertising the retail price of gasoline…which prevents the signage from being clearly visible and legible to drivers of approaching motor vehicles from a vantage point on any lane of traffic in either direction of a roadway abutting the gas station premises and meets specified height, width and spacing standards…

What does that mean for franchise business owners and gas stations?

The legislative change to local government regulation of architectural and signage standards has yet to receive broad attention in the state. It is unclear how local governments will react to it. Questions arise about the application of the statute to “business activities defined as a franchise by Federal Trade Commission regulations…” The majority of Section 553.79(20) deals with gas station related businesses and activities. However, a plain reading of the language of Section 553.79(20) leads to the conclusion that the statute also applies to franchise businesses unrelated to gas stations. Recently the Collier County Growth Management Department interpreted it that way.²/ The Florida League of Cities has also taken a similar position.³/

Whether the statute applies to franchise businesses unrelated to gas stations is not completely clear. Similarly, what qualifies as a “business activity defined as a franchise” under the statute is not completely clear from 16 C.F.R. ss. 436.1, et. seq. Thus, it remains to be seen how local governments would verify franchise status for the preemption to apply.

It is likely that there will be some conflict between local governments and business franchise owners as to whether a regulation “conflicts with or impairs corporate trademarks, service marks, trade dress, logos, color patterns, design scheme insignia, image standards, or other features of corporate branding identity.” Local governments might take a narrow view of this language, while business franchise owners will take a broader view of the language.

As they become more aware of this new opportunity, expect to see gas stations and franchise entities submit applications to local governments to construct or update building design and signage in ways that may have been previously prohibited.

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¹/  Section 553.79, Florida Statutes
²/  Collier County Growth Management Department Memorandum Dated June 27, 2017
³ Florida League of Cities Memorandum Dated June 28, 2017

 

A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.

Questions regarding the content of this article may be e-mailed to Joseph A. Adams at josephadams@paveselaw.com. To view past articles, please click “Publications” on our firm website. Mr. Adams is an associate and an experienced real estate, environmental and land use attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6296; Telecopier: (239) 332-2243.

 

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