Tuesday, April 26, 2011

There Ought To Be a Law!

"There ought to be a law!"

How many times have you heard that phrase or perhaps even uttered it yourself? Now that we are nearing the homestretch of the 2011 Florida Legislative Session, it brings to mind this phrase and whether or not it is accompanied by some equally important questions.

This Session we saw proposed legislation known as the "Droopy Drawers" bill. What was the subject matter of this proposal? The visibility of one's underwear in public depending on how high or low one wears outer garments such as jeans.

Presumably someone took a look at an individual wearing jeans around his or her calves and said: "There ought to be a law!" The same holds true for many of the proposed changes we've seen in the community association arena over the years. There are undoubtedly communities where a director has been on the board forever and no one else can get on which precipitated the legislative proposal a few years back to create one-year term limits for condominium directors. However, there are just as many communities where the residents thank that one person for agreeing to serve year after year when no one else will.

No matter what the subject matter of proposed legislation, once the phrase "There ought to be a law" is uttered, the following questions need to be asked:

-What is the problem that the proposed legislation is addressing?
Is the problem significant enough to change the law? Would a reasonable, ordinary person feel the need to address the problem legislatively or is it a matter to be addressed instead with common sense and behavioral standards?

-Is the problem widespread enough to warrant changing the law?
Is the problem isolated in a few areas or is it statewide? Will fixing the problem in one part of the State create other problems elsewhere in the State?

-Will there be any unintended consequences should this bill pass?
One of the biggest problems in attempting to fix a perceived problem is the potential to create two new ones in the process. Had term limits for directors passed, there might have been communities that would have been forced to seek the appointment of a Receiver to operate those communities.

-What is the fiscal impact should this bill pass?
We saw in the recent deregulation bill, HB 5005, that in an attempt to address the State's budget deficit, the bill actually had a negative fiscal impact by removing significant sources of revenue derived from licensing and testing fees.

-Is the legislative proposal crafted in such a way as to most efficiently and painlessly address the problem as possible?
A laserlike approach in bill drafting is always preferable to a shotgun.

-Who is pushing for the legislative change and why?
Is the legislation self serving and being pushed by a particular industry?

For anyone who has spent time reading our Florida statutes, the necessity for this kind of deliberation before drafting and passing bills becomes readily apparent.

This work by Donna DiMaggio Berger, Esq. is licensed under a Creative Commons Attribution-NoDerivs 3.0 Generic License.

1 comment:

  1. Thank you Donna for your thoughtful commentary on the state of how laws in our state come to be. I agree wholeheartedly with the guiding questions you suggest as filtering points and would add an additional one: "do no harm" -- will this legislation do harm? Sometimes in serving our interests we fail to identify what other interests will be harmed and how. Some might see this as a different perspective of your question about "unintended consequences", I see it as more laser-focused on a key principle of ethical leadership: we will do no harm in pursuing change.