What House Bill 1365 and Grant’s Pass Means for Florida Counties and Municipalities

H.B. 1365

Starting in October, counties and municipalities in Florida will be subject to House Bill 1365 (“Unauthorized Public Camping and Sleeping”). This bill (H.B. 1365) was passed by the Florida House of Representatives and Senate and signed into law by Governor DeSantis in March and goes into effect as Section 125.0231, Florida Statutes, on October 1, 2024. H.B. 1365 prohibits Florida counties and municipalities from authorizing or otherwise allowing any person to regularly camp or sleep outdoors on public property, including on a public right-of-way like a sidewalk. In addition, it authorizes the Florida Attorney General, as well as the residents and business owners within the local jurisdiction, to sue the county or municipality for failure to comply. H.B. 1365 does provide an opportunity for counties and municipalities to designate property for outdoor camping and sleeping but establishes a series of stringent requirements before they may do so.

Who does H.B. 1365 apply to?

H.B. 1365 does not ban outdoor sleeping or camping on public land and does not apply directly to people who do so. However, it creates liability for Florida’s county and municipal governments for allowing outdoor sleeping and camping on public land, putting local governments in the position of having to enact their own bans. H.B. 1365 does not require local governments to regulate recreational camping on land designated for that purpose or sleeping in a car or motor vehicle which is registered, insured, and located somewhere it may lawfully be. Because the prohibition applies to those “regularly” camping or sleeping outdoors, it applies predominantly to unsheltered, homeless Floridians, not to irregular or sporadic outdoor campers.

H.B. 1365 may not apply within counties which are subject to declarations of emergency by the Governor, or to immediately adjacent counties.

What risks do local governments face if they fail to comply with H.B. 1365?

H.B. 1365 provides a cause of action for either the State of Florida, through its Attorney General, or for private citizens residing or operating businesses within the jurisdiction to sue a county or municipality for authorizing or allowing outdoor sleeping or camping on public land. Prior to filing a lawsuit, the plaintiff must first have provided written notice of the alleged violation to the governing board of the applicable county or municipality and wait at least five business days to allow for the cure of the alleged violation. If the county or municipality fails to correct the alleged violation within five business days, the plaintiff may then apply for a court of competent jurisdiction to grant them an injunction against the county or municipality. In addition to the injunction, the county or municipality may also be on the hook for the plaintiff’s court costs, attorney fees, investigative costs, and related expenses.

How can a local government designate a permitted area for outdoor camping and sleeping?

H.B. 1365 provides an apparent ‘out’ for local governments, by allowing them to designate a public area where outdoor camping and sleeping are permitted. However, there are significant hurdles. First, any designation must occur through a majority vote of the governing body of the county. If the designated area is within a municipality, the designation must also be separately approved by the majority vote of the governing board of the applicable municipality. The county must then submit its designation to the Florida Department of Children and Families (DCF) and certify, with proof, that:

(1) There are not sufficient shelter beds available for the homeless population in the county;

(2) The designated property is not contiguous to property designated for current or future residential-use;

(3) The designated property will not adversely and materially affect the property value or safety of any existing residential or commercial property in the county, or negatively affect the safety of children; and

(4) The county has developed a plan to ensure the safety of property and persons on the property, to maintain sanitation and running water on the property, to provide access to mental health services, and to enforce a prohibition on illegal substance and alcohol use on the property.

Some, but not all, of these requirements may be waived for applications by ‘fiscally-constrained’ counties, if the governing board of the county finds that compliance would result in financial hardship. Even if a county does successfully meet each required criteria of the application, the designation must also be temporary and can last no longer than one year. Additionally, a county or municipality must publish its standards for the designated property, and the property remains subject to inspection by DCF.

Grant’s Pass v. Johnson

In the 1962 case Robinson v. California, the United States Supreme Court overturned a California law which criminalized being addicted to narcotics, holding that the Eight Amendment, which penalizes cruel and unusual punishments, prohibited states from punishing defendants based on solely on their “status,” rather than their actions. In the decades since, a number of courts, including several in Florida, have held that laws which punish sleeping in public, especially when shelter beds are not readily available, are punishing the “status” of homelessness, as people have no choice but to sleep and the homeless often have no choice but to sleep in public, and that such laws are therefore unconstitutional under the Eighth Amendment. Robinson has been one of the primary legal precedents sustaining opposition to anti-homeless laws and ordinances in Florida. However, in June, 2024, the Supreme Court in City of Grant’s Pass v. Johnson clarified that they do not view ordinances penalizing public camping, even when camping could constitute as little as using a blanket or pillow while sleeping outdoors, as a status-based punishment under the Robinson precedent, and that the Eight Amendment therefore did not prevent enforcement of the ordinances. 

What risks do local governments face if they enforce H.B. 1365?

With the decision in Grant’s Pass, it may appear that the constitutionality of public camping prohibitions has been decided. However, the holding in Grant’s Pass was limited to a discussion of whether the Eighth Amendment barred such laws, and did not address what other Constitutional implications an ordinance barring public camping or sleeping may have. Several Florida cases which relied on Robinson to find camping and sleeping ordinances unconstitutional also identified other grounds where the execution of such ordinances violated the constitutional rights of homeless people. Examples include:

-A policy of permanently trespassing homeless people who violated an anti-camping ordinance from public parks and spaces open to the public generally violated the Fourteenth Amendment’s Due Process Clause when the homeless were not advised of their right to challenge the trespass orders and the municipality had no established mechanism for ruling on challenges;

-A policy of arresting homeless people who publicly slept, ate, or engaged in other inoffensive life-sustaining activity in a municipality violated the Fourteenth Amendment’s Equal Protections Clause by infringing the homeless’ fundamental right to travel, because it effectively forced homeless people to leave the municipality and prevented them from travelling back into the municipality; and

-A policy of disposing of items readily identifiable as belonging to homeless people as part of a municipality’s cleanup policy violated the Fourth Amendment’s prohibitions on unreasonable searches and seizures.

A county or municipality may be liable for violations of the constitutional rights of homeless people when such rights are violated by government employees acting pursuant to the custom or policy of the county or municipality. Therefore, even though the Grant’s Pass decision removes the Eighth Amendment grounds for challenging public camping and sleeping ordinances, the drafting and enforcement of an H.B. 1365-compliant ordinance must be carefully curtailed to avoid suits based on other Constitutional Amendments.

What does this mean for Florida’s local governments?

Unfortunately, this means that Florida’s local governments are stuck between a rock and a hard place. H.B. 1365 effectively obligates Florida’s counties and municipalities to enact laws to prevent homeless Floridians from sleeping on public land, because allowing them to do so exposes local governments to the risk of lawsuit. In facing a lawsuit, local governments are not just risking an injunction ordering them to comply with H.B. 1365; they are also facing the possibility of having to pay the investigative and legal costs of the plaintiff. However, the enforcement of such laws subjects local governments to the risk of suit by homeless Floridians to the extent that their constitutional rights are infringed.

Due to the legal risks facing counties in both compliance and noncompliance with H.B. 1365, it is important for local governments to consult with attorneys well-versed in municipal law and policy. Our local government and compliance lawyers will continue to monitor this bill as it goes into effect and any surrounding case law.