The Mayor of Miami Beach appears to be setting up a legal battle with the state by proposing a new minimum wage for those working inside his city’s boundaries that would be above the Florida state minimum wage. State law prohibits such a municipal enactment.

Mayor Philip Levine, a Democrat with ties to President Obama and former President Bill Clinton, has announced that he will propose enacting a new minimum wage to the city commission at its May 11, 2016, meeting. Levine was first elected in November of 2013 and is in his second term lasting through next year.

Levine’s proposal would raise the minimum wage within the city for both private and public sector employees to $10.31 in July of 2017. The city’s minimum wage would then increase $1.00 per hour per year until it reaches $13.31 in February of 2020. Thereafter, the city commission would have discretion each year to decide whether additional increases would take effect based on the rate of inflation. The four-year minimum wage increase proposed by Levine would amount to a 65% jump.

Levine’s proposal appears to be illegal under existing Florida state law. That is because on June 13, 2013, Florida Governor Rick Scott signed into law House Bill 655, now part of Section 218.077(2) of the Florida Statutes. That state law, effective since July 1, 2013, preempts and nullifies laws enacted by counties, cities, and other local governmental units that require private employers to pay wages more favorable than those required under federal and state laws. Eighteen states, including Florida, now have such local pre-emptive legislation in effect.

However, the state law itself could be unconstitutional, and if Levine has his way the clash of conflicting laws will surely generate a lawyers’ field day at one or more courthouses. That is because Levine’s proposal may be protected from the state pre-emption statute by the 2004 amendment to the Florida state constitution that first established a state minimum wage higher than the federal rate.

The 2004 amendment, now Section 24(f) of Article X of the state constitution, states that it “provides for payment of a minimum wage and shall not be construed to preempt or otherwise limit the authority of the state legislature or any other public body to adopt or enforce any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends such protections to employers or employees not covered by this amendment.” (Italics supplied).

Levine said in a statement that his proposed legislation “addresses the growing gap between wages and the cost of living in South Florida by proposing a minimum living wage for our community. We continue to hear stories from our residents who are unable to live and work in Miami Beach because of the high costs of rent, transportation, and basic living costs.”

Levine did not address the potential conflict between his proposal and the existing state law.

The City of Miami Beach is governed by a city commission/city manager type of government. The city commission consists of six elected Commissioners and Mayor Levine.

If approved by the city commission, the new law would make Miami Beach the first local government in Florida to mandate all employers to adhere to a minimum wage set locally above both state and federal minimum wage laws. It would immediately impact the city’s important leisure and hospitality industry, composed of tourist-oriented service occupations including hotels, fast-food and other restaurants, and cultural, entertainment, and recreational establishments, many of whose employees are paid minimum wage.

Presently the federal minimum wage is $7.25 an hour and the state minimum wage is $8.05. The Florida rate has a built-in adjustment structure pursuant to a 2004 state constitutional amendment that requires yearly review and possible increases in the state minimum wage based on the rate of inflation.

California recently passed legislation that will increase that state’s $10.00 minimum wage to $15.00 per hour by 2022, and New York, whose minimum wage is currently $9.00 an hour, has also done so effective in stages through 2021. Both states have Democratic governors, while Florida’s Republican Governor Rick Scott has criticized those increases. Recent proposals by Democratic state legislators to increase the Florida state minimum wage to $15.00 have not prospered in Tallahassee.

There have been recent developments around the United States in which some cities have enacted their own local minimum wage, and 24 localities have adopted minimum wages above their state’s minimum wage. For example, Los Angeles, San Francisco, and Seattle have approved a $15.00 minimum wage – an idea being championed at the national level by Democratic presidential candidate Bernie Sanders — that will fully phase in by 2021.

Twenty-nine states, including Florida, and the District of Columbia, currently have a minimum wage higher than the federal minimum wage.

The Miami-Dade County “Living Wage” Ordinance governing county service contracts and county employees, as well as employees working at Miami International Airport, has been in effect since 1999, and is annually indexed to inflation. It currently requires a minimum wage of $12.63 per hour for employees with an employer-provided health benefit plan, and $14.46 per hour for those without health benefits. It remains in effect because the 2013 pre-emptive state law carved out from its coverage local minimum wage laws for employees of political subdivisions, and for employers who contract with political subdivisions for goods and services.

Academic research on the economic effect of a minimum wage increase is mixed, with findings ranging from little or no impact on employment rates to rising unemployment. The non-partisan Congressional Budget Office has concluded that an increase in the minimum wage is likely to cause at least some job losses.