2011 - 2012 Biennial Report

2011 - 2012 Biennial Report
BIENNIAL REPORT
of the
ATTORNEY GENERAL
STATE OF FLORIDA
January 1, 2011, through December 31, 2012
PAM BONDI
Attorney General
Tallahassee, Florida
2013
CONSTITUTIONAL DUTIES OF THE
ATTORNEY GENERAL
The revised Constitution of Florida of 1968 sets out the duties of
the Attorney General in Subsection (c), Section 4, Article IV, as:
“...the chief state legal officer.”
By statute, the Attorney General is head of the Department of
Legal Affairs, and supervises the following functions:
Serves as legal advisor to the Governor and other executive
officers of the State and state agencies.
Defends the public interest.
Represents the State in legal proceedings.
Keeps a record of his or her official acts and opinions.
Serves as a reporter for the Supreme Court.
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STATE OF FLORIDA
OFFICE OF ATTORNEY GENERAL
PAM BONDI
February 10, 2013
The Honorable Rick Scott
Governor of Florida
The Capitol
Tallahassee, Florida 32399-0001
Dear Governor Scott:
Pursuant to my constitutional duties and the statutory
requirement that this office periodically publish a report on
the Attorney General official opinions, I submit herewith the
biennial report of the Attorney General for the two preceding
years from January 1, 2011, through December 31, 2012.
This report includes the opinions rendered, an organizational
chart, and personnel list. The opinions are alphabetically
indexed by subject in the back of the report with a table of
constitutional and statutory sections cited in the opinions.
It’s an honor to serve with you for the people of Florida.
Sincerely,
Pam Bondi
Attorney General
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TABLE OF CONTENTS
Page
Constitutional Duties of the Attorney General ....................................... ii
Letter of Transmittal ..................................................................................... iii
Table of Contents ........................................................................................... iv
Attorneys General of Florida since 1845 .................................................... v
Department of Legal Affairs .........................................................................vi
Statement of Policy Concerning Attorney General Opinions .............. x
Seal of the Attorney General of Florida ................................................... xv
OPINIONS
Opinions 2011 .................................................................................................... 1
Opinions 2012 ................................................................................................ 144
INDEX AND CITATOR
General Index ................................................................................................ 334
Citator to Florida Statutes, Constitution,
and Session Laws.......................................................................................... 357
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ATTORNEYS GENERAL OF FLORIDA
SINCE 1845
Joseph Branch ......................................................1845-1846
Augustus E. Maxwell ...........................................1846-1848
James T. Archer ...................................................1848-1848
David P. Hogue .....................................................1848-1853
Mariano D. Papy ...................................................1853-1860
John B. Galbraith .................................................1860-1868
James D. Wescott, Jr............................................1868-1868
A. R. Meek...............................................................1868-1870
Sherman Conant ...................................................1870-1870
J. P. C. Drew ..........................................................1870-1872
H. Bisbee, Jr...........................................................1872-1872
J. P. C. Emmons ....................................................1872-1873
William A. Cocke ...................................................1873-1877
George P. Raney ...................................................1877-1885
C. M. Cooper...........................................................1885-1889
William B. Lamar ..................................................1889-1903
James B. Whitfield ................................................1903-1904
W. H. Ellis ...............................................................1904-1909
Park Trammell ......................................................1909-1913
Thomas F. West .....................................................1913-1917
Van C. Swearingen ...............................................1917-1921
Rivers Buford ........................................................1921-1925
J. B. Johnson .........................................................1925-1927
Fred H. Davis .........................................................1927-1931
Cary D. Landis.......................................................1931-1938
George Couper Gibbs ..........................................1938-1941
J. Tom Watson .......................................................1941-1949
Richard W. Ervin ..................................................1949-1964
James W. Kynes.....................................................1964-1965
Earl Faircloth ........................................................1965-1971
Robert Shevin........................................................1971-1979
Jim Smith ...............................................................1979-1987
Robert A. Butterworth ........................................1987-2002
Richard E. Doran ................................................. 2002-2003
Charlie Crist ......................................................... 2003-2007
Bill McCollum ........................................................2007-2011
Pam Bondi ..............................................................2011-
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DIRECTOR OF
CABINET AFFAIRS
Rob Johnson
GENERAL SERVICES
BUREAU CHIEF
Hallie Coombs
HUMAN RESOURCES
BUREAU CHIEF
Cathy Christensen
LEGAL OPINIONS
DIRECTOR
Joslyn Wilson
CITIZEN SERVICES
DIRECTOR
Kym Oswald
FINANCE AND ACCOUNTING
BUREAU CHIEF
Sabrina Donovan
OPERATIONS AND BUDGET
BUREAU CHIEF
Sarah Nortelus
INFORMATION TECHNOLOGY
DIRECTOR
Deborah Stevens
ADMINISTRATION AND
BUDGET DIRECTOR
John Hamilton
ASSOCIATE DEPUTY
ATTORNEY GENERAL
Kent Perez
CYBERFRAUD
BUREAU CHIEF
Vacant
TALLAHASSEE BUREAU CHIEF
Mark Hamilton
ECONOMIC CRIMES
ECONOMIC CRIMES
TAMPA BUREAU CHIEF
Victoria Butler
ECONOMIC CRIMES
ORLANDO BUREAU CHIEF
Elizabeth Starr
Samantha Feuer
SOUTH FL BUREAU CHIEF
ECONOMIC CRIMES
ECONOMIC CRIMES
DIRECTOR
Richard Lawson
CIVIL RIGHTS
DIRECTOR
Danille Carroll
LEMON LAW ARBITRATION
DIRECTOR
Jan Smith
ANTITRUST and
MULTI-STATE LITIGATION
Trish Conners
ASSOCIATE DEPUTY
ATTORNEY GENERAL
Trish Conners
INSPECTOR GENERAL
Steve Rumph
STATE OF FLORIDA
OFFICE OF THE ATTORNEY GENERAL
Organizational Chart
COUNCIL ON THE SOCIAL
STATUS OF
BLACK MEN AND BOYS
EXECUTIVE DIRECTOR
Kelly Sciba
COMM. ON STATUS OF WOMEN
EXECUTIVE DIRECTOR
Vacant
FL ELECTIONS COMMISSION
Christina Harris
BUREAU CHIEF
ADVOCACY/GRANTS MGMT
BUREAU CHIEF
Rick Nuss
CRIMINAL JUSTICE PROGRAMS
VICTIM COMPENSATION
BUREAU CHIEF
Michelle Crum
VICTIMSERVICES/CRIMINAL
JUSTICEDIRECTOR/ DIR.OFLAW
ENFORCEMENTRELATIONS
Emery Gainey
DEPUTY ATTORNEY
GENERAL/CHIEF OF STAFF
Carlos Muniz
DIRECTOR OF
COMMUNICATIONS
Jennifer Meale
SPECIAL COUNSEL FOR
OPEN GOVERNMENT
Pat Gleason
DIRECTOR OF
LEGISLATIVE AFFAIRS
Rob Johnson
ATTORNEY GENERAL
Pam Bondi
FLORIDA
MEDICAID FRAUD
Luis Martinez
SOUTHERN REGIONAL CHIEF
MEDICAID FRAUD
MEDICAID FRAUD
CENTRAL REGIONAL CHIEF
David Bundy
Betty Zachem
NORTHERN REGIONAL CHIEF
MEDICAID FRAUD
James Mann
DEPUTY DIRECTOR/ LAW
ENFORCEMENT MAJOR
ASSOCIATE DEPUTY
EMINENT DOMAIN
BUREAU CHIEF
Joseph Spejenkowski
CRIMINAL APPEALS
TAMPA BUREAU CHIEF
Bob Krauss
CHILDREN'S LEGAL SVCS
TAMPA CHIEF
Stephanie Bergen
CSE TALLAHASSEE
Sonia Garcia-Solis
CSE FT. LAUDERDALE
Ravi Brammer
CSE ST. PETE
Malinda Ottinger
Priscilla Quinones
ENFORCEMENT BUREAU CHIEF
CHILD SUPPORT
LAW LIBRARY
Betsy Stupski
Kathleen Savor
CHILDREN'S LEGAL SVCS
FT. LAUDERSALE CHIEF
Hampton Peterson
GENERAL CIVIL
TAMPA BUREAU CHIEF
Diana Esposito
FT. LAUD/WPB BUREAU CHIEF
CRIMINAL APPEALS
DAYTONA BUREAU CHIEF
Wes Heidt
GENERAL CIVIL
ADMINISTRATIVE LAW
BUREAU CHIEF
Ed Tellechea
EMPLOYMENT LITIGATION
BUREAU CHIEF
Glen Bassett
ETHICS
BUREAU CHIEF
Diane Guillemette
TALLAHASSEE BUREAU CHIEF
Trisha Pate
TORT LITIGATION
BUREAU CHIEF
Britt Thomas
CORRECTIONS
BUREAU CHIEF
Susan Maher
STATE PROGRAMS
BUREAU CHIEF
Stephanie Daniels
CAPITAL APPEALS
BUREAU CHIEF
Candance Sabella
REVENUE LITIGATION
BUREAU CHIEF
Joe Mellichamp
COMPLEX LITIGATION
Lisa Raleigh
GENERAL CIVIL LITIGATION
Chesterfield Smith, Jr.
CRIMINAL APPEALS
Richard Polin
MIAMI/FT. LAUD BUREAU CHIEF
COMPLEX CIVIL ENFORCEMENT
BUREAU CHIEF
Mark Bodner
CRIMINAL APPEALS
Celia Terenzio
WEST PALM BCH BUREAU CHIEF
CRIMINAL APPEALS
ASSOCIATE DEPUTY
CRIMINAL APPEALS
Carolyn Snurkowski
MEDICAID FRAUD
ASSOCIATE DEPUTY
MEDICAID FRAUD
James Varnado
CIVIL APPEALS
BUREAU CHIEF
Vacant
Timothy Osterhaus
SOLICITOR GENERAL
John Wethington
JACKSONVILLE BUREAU CHIEF
STATEWIDE PROSECUTION
STATEWIDE PROSECUTION
MIAMI BUREAU CHIEF
Carlos Guzman
WEST PALM BCH
STATEWIDE PROSECUTION
STATEWIDE PROSECUTION
FT. MYERS BUREAU CHIEF
Brian Fernandes
STATEWIDE PROSECUTION
ORLANDO BUREAU CHIEF
John Roman
STATEWIDE PROSECUTION
TAMPA BUREAU CHIEF
Diane Croft
Julie Hogan
ASST. DEPUTY FT. LAUDERDALE
STATEWIDE PROSECUTION
STATEWIDE PROSECUTOR
Nicholas B. Cox
OFFICE OF THE ATTORNEY GENERAL
The Capitol, Tallahassee, Florida 32399-1050 (850) 245-0140
PAMELA BONDI
Attorney General
CARLOS MUNIZ
Deputy Attorney
General &
Chief of Staff
NICOLAS COX
StatewideProsecutor
STEVE RUMPH JR.
Inspector General
KENT PEREZ
Associate Deputy &
General Counsel
PATRICIA GLEASON
Special Counsel
For Open
Government
PATRICIA CONNERS
Associate Deputy
Attorney General
CAROLYN SNURKOWSKI
Associate Deputy
Attorney General
For Criminal Appeals
EMERY GAINEY
Director of Law
Enforcement
Victims & Criminal
Justice Program
TIMOTHY OSTERHAUS
Solicitor General
Richard Lawson
Director of
Economic Crimes
JIM VARNADO
Associate Deputy
Attorney General
For Medicaid Fraud
Danille Carroll
Director of Civil Rights
Janet Smith
Director of
Lemon Law
John Hamilton
Director of
Administration
Joslyn Wilson
Director of Opinions
Jennifer Meale
Communications
Director
Robert Johnson
Director of Legislative
& Cabinet Affairs
Jason Rodriguez
External Affairs
Director
Deborah Stevens
Director of
Information Services
Kimberli Oswald
Director of
Citizen Services
Jill Adams
Rotem Adar
Stephen Ake
Elizabeth Alsobrook
Jeannette Andrews-Thompson
Albert Arena
Alexa Argerious
William Armistead
Elizabeth Arthur
Adrian Ashton
Angeline Attila
Dana Baird
John Bajger
Thomas Barnhart
Glen Bassett
Marilyn Beccue
Carla Bechard
Kenneth Beck
Stephanie Bergen
Toni Bernstein
Heidi Bettendorf
Daniel Biggins
Sofia Bilokryla
Mitchell Bishop
Katherine Blanco
Michelle Blume
Diana Bock
Albert Bowden
James Boyle
James Boynton Jr
Cecilia Bradley
Lizabeth Brady
Ravi Brammer
William Branch
Jamie Braun
Cheryl Brittle
Jerrett Brock
Jacqueline Brown
Scott Browne
Cindy Bruschi
David Bundy
Christina Burden
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CHESTERFIELD SMITH JR.
Associate Deputy
Attorney General
For General Civil Litigation
Shayne Burnham
Victoria Butler
Clarissa Cabreja
Arabella Campbell
Leslie Campbell
James Carney
Alicia Castillo
Meredith Charbula
Carrol Cherry
Maria Chisholm
Mary Clark
Rachel Clark
Robert Clements
Katherine Cline
Robin Compton
Cynthia Comras
Anne Conley
Bethany Connelly
Satu Correa
Carmen Corrente
Natalia Costea
James Cox
Shelley Cridlin
Summer Cruz
Ralph Damato
Stephanie Daniel
Kristen Davenport
Jason Davis
Jacqueline Davison
Carol Degraffenreidt
Elizabeth Delgado
Arielle Demby Berger
Timothy Dennis
Diane Dewolf
Robert Dietz
Joanne Diez
Jeffrey Dikman
Jennifer Dillon
Frank Dimaggio
Joey Dingess
Carol Dittmar
Douglas Dolan
Kendrick Donnelly
Thomas Duffy
Susan Dunlevy
Mark Dunn
David Earl
Mitchell Egber
Alex Ershock
Jacqueline Erwin
Diana Esposito
Elizabeth Everson
Charles Fahlbusch
Allison Finn
Laura Fisher
Ryann Flack
Michael Flury
David Flynn
Robert Follis
William Foster
Helen Fouse
Deborah Fraim
George Francis
Timothy Fraser
Timothy Freeland
Timothy Frizzell
Anne Furlow
William Gandy Jr
Sonia Garcia-Solis
Ana Gargollo Mcdonald
Cedell Garland
Fulvio Gentili
Donna Gerace
Jeanine Germanowicz
Douglas Glaid
David Glantz
Lisa Glick
Jonathan Glogau
Anthony Golden
Ren’ee Gordon
Ashley Grafton
Ashley Grant
Marcus Graper
Dayle Green
Melissa Green
David Grimes
Diane Guillemette
Maria Guitian Barker
Lee Gustafson
Melody Hadley
Lori Hagan
Meredith Hall
Mark Hamel
Mark Hamilton
Gerry Hammond
Christi Hankins
Julia Harris
Virginia Harris
Kellye Hayashi
Wesley Heidt
Joshua Heller
Angela Hensel
Donna Hernandez
Nikole Hiciano O’neil
Meredith Hinshelwood
Phillippa Hitchins
Benedict Hoffman
Ronald Honick III
Sonya Horbelt
Mary Howard
Christopher Hunt
Brian Hunter
Jonathan Hunter
Jonathan Hurley
Martha Hurtado
Elmer Ignacio
Sandra Jaggard
Clark Jennings
Georgina Jimenez-Orosa
Caroline Johnson Levine
Daniel Johnson
Daniel Jones
Bryan Jordan
Keri Joseph
Moises Jrade
Michael Karpinski
Samantha Katen
Linda Katz
Brent Kelleher
Sue-Ellen Kenny
Russell Kent
Ann Keough
Denise Kim
Katherine Kiziah
John Klawikofsky
Donna Koch
Pamela Koller
Dean Kowalchyk
Jill Kramer
Robert Krauss
Jay Kubica
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Jacqueline Kurland
Donna Laplante
Nancy Lawler
Lisa Lee Boemmel
Lisa-Marie Lerner
Norman Levin
Eric Lipman
Deborah Loucks
Andrea Luedecker
Giselle Lylen
Sara Macks
Susan Maher
Patrice Malloy
Daryl Manning
Luz Maria-Montero
Elba Martin
Luis Martinez
Linda Matthews
James McAuley
Allison McCabe
Erin McCarthy
Patricia McCarthy
Katrina McCormick
Charles McCoy
Morgan McDonald
Anne McDonough
Andrew McElroy III
Rebecca McGuigan
Katherine McIntire
James McNamara III
Carrie McNamara
Caroline McNulty Bernal
Donna McNulty
Melynda Melear
Joseph Mellichamp III
Nicholas Merlin
Michael Mervine
John Mika
Charmaine Millsaps
Tamara Milosevic
Zahan Mistry
Jacqueline Moody
Audrey Moore
Jennifer Moore
Michael Moore
Allison Morris
Melvin Mosier
Thomas Munkittrick
Bill Navas
Lance Neff
Eric Neiberger
Betty Nestor
Kellie Nielan
Erin Nobles
Rachel Nordby
Lynette Norr
Kenneth Nunnelley
Grainne O Sullivan
Nicole Orr
Mary Ottinger
Robert Palmer
Helene Parnes
Bonnie Parrish
Trisha Pate
Charlyne Patterson
Joi Pearsall
James Peavyhouse
Ivy Pereira Rollins
Charles Pereny
Stacy Perez
James Peters
Hampton Peterson
Ann Phillips
Richard Polin
Phillip Quaschnick
Priscilla Quinones
Lisa Raleigh
Amy Ramke
Wendy Reed Linton
Brittany Rhodaback
Charles Rivenbark
Priscilla Roberts
Magaly Rodriguez
Don Rogers
Susan Rogers
Monique Rolla
Aimee Rosenblum
Heather Ross
Seth Rubin
Candance Sabella
Jennifer Sarmiento
Alfred Saunders
Kathleen Savor
Richard Schiffer
Samantha Schosberg Feuer
Carolyn Schwarz
Susan Shanahan
Tiffany Short
Jay Silver
David Silverstein
Holly Simcox
Darlene Simmons
Hagerenesh Simmons
Carol Simpson
Rebecca Sirkle
Gregory Slemp
Matthew Smith
Joshua Soileau
Mary Soorus
Lindsey Sowder
Joseph Spejenkowski
Douglas Squire
Elizabeth Starr
Jessica Stephans
Marlene Stern
Julie Stewart
Monica Stinson
Joy Stubbs
Betsy Stupski
Melanie Surber
Matthew Tannenbaum
Kaylee Tatman
Cerese Taylor
Edward Tellechea
Celia Terenzio
Theresa Therilus
Britt Thomas
Timothy Thomas
Dawn Tiffin
Eric Tilton
Joseph Tringali
Mimi Turin
Jason Vail
Richard Valuntas
Keith Vanden Dooren
Algeisa Vazquez-Pagano
Ann Vecchio
Tonja Vickers
Matthew Vitale
Kathleen Von Hoene
Rebecca Wall
Gretchen Wallace
Erica Waxman
Nicholas Weilhammer
Anne Weiner
Katie Welch
Carissa Wheeler
Stephen White
Enoch Whitney
Dana Wiehle
Jaakan Williams
Kenneth Wilson
Blaine Winship
Elaine Winslow
James Young
Lana Zabriskie
Betty Zachem
Colleen Zaczek
Barbara Zappi
Genny Zhu
Christina Zuccaro
ASSISTANT STATEWIDE PROSECUTORS
Melissa Checchio
Diane Croff
Katherine Diamandis
Paul Dontenville
Kelly Eckley
Brian Fernandes
Robert Finkbeiner
Jeremy Franker
Ocar Gelpi
Kathleen George
David Gillespie
Julie Hogan
Stephen Immasche
Margery Lexa
Sasha Lohn-Mcdermott
John Maceluch
Shannon Macgillis
Cathy McKyton
Michael Nieman
Michael-Anthony Pica
Pricilla Prado Stroze
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Edward Pyers
John Roman
Michael Schmid
Joseph Spataro
Stephanie Tew
Anne Wedge-Mcmillen
Daniel Weisman
John Wethington III
Michael Williams
Sarah Willis
DEPARTMENT OF LEGAL AFFAIRS
Attorney General Opinions
I. General Nature and Purpose of Opinions
Issuing legal opinions to governmental agencies has long been
a function of the Office of the Attorney General. Attorney General
Opinions serve to provide legal advice on questions of statutory
interpretation and can provide guidance to public bodies as an
alternative to costly litigation. Opinions of the Attorney General,
however, are not law. They are advisory only and are not binding in a
court of law. Attorney General Opinions are intended to address only
questions of law, not questions of fact, mixed questions of fact and
law, or questions of executive, legislative or administrative policy.
Attorney General Opinions are not a substitute for the advice and
counsel of the attorneys who represent governmental agencies and
officials on a day to day basis. They should not be sought to arbitrate
a political dispute between agencies or between factions within an
agency or merely to buttress the opinions of an agency's own legal
counsel. Nor should an opinion be sought as a weapon by only one side
in a dispute between agencies.
Particularly difficult or momentous questions of law should be
submitted to the courts for resolution by declaratory judgment.
When deemed appropriate, this office will recommend this course
of action. Similarly, there may be instances when securing a
declaratory statement under the Administrative Procedure Act will
be appropriate and will be recommended.
II. Types of Opinions Issued
There are several types of opinions issued by the Attorney General's
Office. All legal opinions issued by this office, whether formal or
informal, are persuasive authority and not binding.
Formal numbered opinions are signed by the Attorney General
and published in the Annual Report of the Attorney General. These
opinions address questions of law which are of statewide concern.
This office also issues a large body of informal opinions.
Generally these opinions address questions of more limited
application. Informal opinions may be signed by the Attorney
General or by the drafting assistant attorney general. Those
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signed by the Attorney General are generally issued to public officials
to whom the Attorney General is required to respond. While an
official or agency may request that an opinion be issued as a formal
or informal, the determination of the type of opinion issued rests with
this office.
III. Persons to Whom Opinions May Be Issued
The responsibility of the Attorney General to provide legal opinions
is specified in section 16.01(3), Florida Statutes, which provides:
Notwithstanding any other provision of law, shall, on the written
requisition of the Governor, a member of the Cabinet, the head
of a department in the executive branch of state government,
the Speaker of the House of Representatives, the President of
the Senate, the Minority Leader of the House of Representatives,
or the Minority Leader of the Senate, and may, upon the written
requisition of a member of the Legislature, other state officer, or
officer of a county, municipality, other unit of local government,
or political subdivision, give an official opinion and legal advice in
writing on any question of law relating to the official duties of the
requesting officer.
The statute thus requires the Attorney General to render opinions
to “the Governor, a member of the Cabinet, the head of a department
in the executive branch of state government, the Speaker of the House
of Representatives, the President of the Senate, the Minority Leader of
the House of Representatives, or the Minority Leader of the Senate....”
The Attorney General may also issue opinions to “a member of the
Legislature, other state officer, or officer of a county, municipality,
other unit of local government, or political subdivision.” In addition,
the Attorney General is authorized to provide legal advice to the
state attorneys and to the representatives in Congress from this state.
Sections 16.08 and 16.52(1), Florida Statutes.
Questions relating to the powers and duties of a public board
or commission (or other collegial public body) should be requested
by a majority of the members of that body. A request from a board
should, therefore, clearly indicate that the opinion is being sought by
a majority of its members and not merely by a dissenting member or
faction.
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IV. When Opinions Will Not Be Issued
Section 16.01(3), Florida Statutes, does not authorize the Attorney
General to render opinions to private individuals or entities, whether
their requests are submitted directly or through governmental
officials. In addition, an opinion request must relate to the requesting
officer's own official duties. An Attorney General Opinion will not,
therefore, be issued when the requesting party is not among the
officers specified in section 16.01(3), Florida Statutes, or when an
officer falling within section 16.01(3), Florida Statutes, asks a question
not relating to his or her own official duties.
In order not to intrude upon the constitutional prerogative of the
judicial branch, opinions generally are not rendered on questions
pending before the courts or on questions requiring a determination
of the constitutionality of an existing statute or ordinance.
Opinions generally are not issued on questions requiring an
interpretation only of local codes, ordinances or charters rather
than the provisions of state law. Instead such requests will usually
be referred to the attorney for the local government in question. In
addition, when an opinion request is received on a question falling
within the statutory jurisdiction of some other state agency, the
Attorney General may, in the exercise of his or her discretion, transfer
the request to that agency or advise the requesting party to contact the
other agency. For example, questions concerning the Code of Ethics
for Public Officers and Employees may be referred to the Florida
Commission on Ethics; questions arising under the Florida Election
Code may be directed to the Division of Elections in the Department
of State.
However, as quoted above, section 16.01(3), Florida Statutes,
provides for the Attorney General's authority to issue opinions
"[n]otwithstanding any other provision of law," thus recognizing the
Attorney General's discretion to issue opinions in such instances.
Other circumstances in which the Attorney General may decline to
issue an opinion include:
• questions of a speculative nature;
• questions requiring factual determinations;
• questions which cannot be resolved due to an irreconcilable
conflict in the laws although the Attorney General may attempt
to provide general assistance;
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• questions of executive, legislative or administrative policy;
• matters involving intergovernmental disputes unless all
governmental agencies concerned have joined in the request;
moot questions;
• questions involving an interpretation only of local codes,
charters, ordinances or regulations; or
• where the official or agency has already acted and seeks to
justify the action.
V. Form In Which Request Should Be Submitted
Requests for opinions must be in writing and should be
addressed to:
Pam Bondi
Attorney General
Department of Legal Affairs
PL01 The Capitol
Tallahassee, Florida 32399-1050
The request should clearly and concisely state the question of law
to be answered. The question should be limited to the actual matter
at issue. Sufficient elaboration should be provided so that it is not
necessary to infer any aspect of the question or the situation on which
it is based. If the question is predicated on a particular set of facts or
circumstances, these should be fully set out.
The response time for requests for Attorney General Opinions
has been substantially reduced. This office attempts to respond to
all requests for opinions within 30 days of their receipt in this office.
However, in order to facilitate this expedited response to opinion
requests, this office requires that the attorneys for public entities
requesting an opinion supply this office with a memorandum of law to
accompany the request. The memorandum should include the opinion
of the requesting party's own legal counsel, a discussion of the legal
issues involved, together with references to relevant constitutional
provisions, statutes, charter, administrative rules, judicial decisions,
etc.
Input from other public officials, organizations or associations
representing public officials may be requested. Interested parties
may also submit a memorandum of law and other written material or
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or statements for consideration. Any such material will be attached to
and made a part of the permanent file of the opinion request to which
it relates.
VI. Miscellaneous
This office provides access to formal Attorney General Opinions
through a searchable database on the Attorney General’s website at:
myfloridalegal.com
Persons who do not have access to the Internet and wish to obtain a
copy of a previously issued formal opinion should contact the Florida
Legal Resource Center of the Attorney General’s Office. Copies of
informal opinions can be obtained from the Opinions Division of the
Attorney General's Office.
As an alternative to requesting an opinion, officials may wish to
use the informational pamphlet prepared by this office on dual officeholding for public officials. Copies of the pamphlet can be obtained
by contacting the Opinions Division of the Attorney General's Office.
In addition, the Attorney General, in cooperation with the First
Amendment Foundation, has prepared and annually updates the
Government in the Sunshine Manual which explains the law under
which Florida ensures public access to the meetings and records of
state and local government. Copies of this manual can be obtained
through the First Amendment Foundation.
xiv
Pam Bondi
The Capitol
Tallahassee
xv
BIENNIAL REPORT
of the
ATTORNEY GENERAL
State of Florida
January 1, 2011, through December 31, 2012
AGO 11-01 – February 7, 2011
PUBLIC RECORDS LAW – GOVERNMENT IN THE SUNSHINE
LAW – MEETINGS – NON-PROFIT CORPORATIONS –
FOUNDATIONS – MUNICIPALITIES
WHETHER NOT-FOR-PROFIT FOUNDATION IS SUBJECT TO
SUNSHINE AND PUBLIC RECORDS LAWS
To: Mr. John J. Hearn, Village Attorney for the Village of Biscayne Park
QUESTIONS:
1. Is the Biscayne Park Foundation, Inc., a not-for-profit
foundation created by the Village of Biscayne Park, subject to
Florida’s Public Records Law, Chapter 119, Florida Statutes?
2. Is the Biscayne Park Foundation, Inc., a not-for-profit
foundation created by the Village of Biscayne Park, subject to
Florida’s Government in the Sunshine Law, section 286.011,
Florida Statutes?
SUMMARY:
1. The Biscayne Park Foundation, Inc., is an “agency” for
purposes of Chapter 119, Florida Statutes, and subject to the
inspection and copying requirements thereof.
2. The Biscayne Park Foundation, Inc., is subject to and
must comply with the requirements of section 286.011, Florida
Statutes.
The Biscayne Park Foundation, Inc. (“the foundation”), is a 501(c)(3)
charitable foundation and a not-for-profit organization that is described
on the village’s website and in village publications as “the Village’s
fundraising arm.”1 The foundation is intended to enhance the village’s
opportunities to raise monies through special events, sponsorships,
donations, and grants for the Village of Biscayne Park.
As provided in its Articles of Incorporation, the foundation is
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“organized exclusively for charitable and educational purposes.” The
articles describe the purposes for which the corporation was formed:
1. To raise the educational and social levels of the residents
of the Village of Biscayne Park, Florida, to foster and promote
community-wide interest and concern for the history and
preservation of the Village of Biscayne Park.
2. To aid, support, and assist by gifts, contributions, or
otherwise, other corporations, community chests, funds and
foundations organized and operated exclusively for charitable,
educational or scientific purposes, no part of the net earnings
of which inures to the benefit of any private shareholder or
individual, and no substantial part of the activities of which is
carrying on propaganda, or otherwise attempting to influence
legislation.
3. To do any and all lawful activities which may be necessary,
useful, or desirable for the furtherance, accomplishment,
fostering, or attaining of the foregoing purposes, either directly
or indirectly, and either alone or in conjunction or cooperation
with others, whether such others be persons or organizations
of any kind or nature, such as corporations, firms, association,
trusts, institution, foundations, or governmental bureaus,
departments or agencies.
4. All of the foregoing purposes shall be exercised exclusively
[sic] charitable and educational purposes in such a manner that
the Corporation will qualify as an exempt organization under
section 501(c)(3) of the Internal Revenue Code of 1986 or the
corresponding provision of any future United States Internal
Revenue law.2
According to information you have supplied, the foundation was
created by the village, the village manager was the foundation’s
incorporator, and the principal office of the foundation is located at the
village’s administrative offices. The sole member of the foundation is the
village commission.3 The village commission nominates and appoints
the foundation’s board of directors and has the power to remove any
member of the board.4 In addition, vacancies occurring on the board
during any term will be filled by the village commission.5 However, once
the board is appointed, the foundation’s board exercises full control over
the operations of the foundation.6 The board appoints its own officers
and ancillary boards and exercises removal power over those officers.7
You state that the foundation receives no public funding.
Question 1. – Public Records Law
Chapter 119, Florida Statutes, the Public Records Law, provides
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the public access to certain governmental documents.8 The law is to
be construed liberally in favor of openness.9 When there is any doubt,
Florida’s courts find in favor of disclosure.10 The Public Records Law
applies to all agencies, including any “business entity acting on behalf
of any public agency.”11 The only agency records that are exempt
from inspection and copying under the act are those that are provided
confidentiality by statute or those that are expressly exempted by a
statute or general or special law.12
Resolution of the question of whether a private entity is required to
disclose records under the Public Records Law depends on consideration
of a number of factors delineated by the Florida Supreme Court
in News and Sun-Sentinel Company v. Schwab, Twitty & Hanser
Architectural Group, Inc.13 Moreover, notwithstanding consideration
of these individual factors, it is the totality of factors that controls
the determination.14 A review of the factors described in the Schwab
case and application of the facts relating to creation and operation of
the Biscayne Park Foundation, Inc., support the conclusion that the
foundation is an “agency,” such that it must comply with Florida’s
Public Records Law.
In News and Sun-Sentinel Company v. Schwab, Twitty & Hanser
Architectural Group, Inc.,15 the Florida Supreme Court adopted a
totality of factors test, which had been utilized by several district courts
in determining whether a private entity was subject to Chapter 119,
Florida Statutes. The test developed by the Schwab Court involved
identifying links between the governmental agency and the private
entity which should be considered in making the determination;
however, no single factor is controlling on the question of whether an
entity is subject to the Public Records Law. Rather, all of these factors
must be reviewed and weighed in order to determine whether a private
organization is an agency for purposes of Chapter 119, Florida Statutes:
1. Creation – did the public agency play a part in the creation
of the private entity?
The Biscayne Park Foundation, Inc., was created by the Village
of Biscayne Park to act on behalf of the village in financing and
administering certain charitable, educational and scientific programs.
2. Funding – has the public agency provided substantial
funds, capital or credit to the private entity or is it merely
providing funds in consideration for goods or services rendered
by the public entity?
You have advised that the foundation receives no funding from the
village. Operation of the foundation appears to be conducted using
funds generated through the foundation’s fund-raising activities and
through the receipt of grants and gifts to the corporation.
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3. Commingling of Funds – whether there is a commingling of
funds.
The only funds available to the Biscayne Park Foundation, Inc., are
those received by the foundation from its own fundraising activities or
through grants and donations.
4. Public Property – whether the activity is conducted on
publicly-owned property.
While you have advised that the foundation “plans not to use Village
facilities, equipment, materials or supplies,” it appears that the
village manager (so identified in the articles of incorporation for the
foundation) is the incorporator and registered agent for the foundation;
the principal office of the corporation is located at the administrative
offices of the village and the foundation’s mailing address is the village
hall. Further, the email address for the foundation is that of the village
clerk of Biscayne Park.
5. Decision-making process – does the private entity play an
integral part in the public agency’s decision-making process?
The foundation plays no apparent role in the village’s decision-making
process.
6. Governmental Function – “whether the private entity is
performing a governmental function or a function which the
public agency otherwise would perform.”16
The foundation acts as the village’s “fundraising arm” in financing and
administering certain charitable, educational, and scientific programs
of the municipality – a municipal function.
7. Regulation – does the public agency regulate or otherwise
control the private entity’s professional activity or judgment?
The village is the sole member of the foundation and retains considerable
control, including the right to remove board members and fill vacancies
on the board. Changes to the foundation’s articles or bylaws must be
approved by the village.
8. Financial Interest – whether the governmental agency has
a substantial financial interest in the private entity.
The village has no financial interest in the foundation as an investor,
but has a substantial interest in the foundation and its activities in
accomplishing the purposes of the foundation.
9.
Goals – is the goal of the private entity to help the public
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agency and the citizens served by the agency?
The expressed goal of the foundation is the enhancement of opportunities
for village residents through fundraising on the village’s behalf.
A review of the Schwab factors as applied to the Biscayne Park
Foundation, Inc., would put the foundation squarely in line with a
number of Florida cases and Florida Attorney General Opinions17
concluding that nonprofit entities such as the foundation are subject
to the inspection and copying requirements of the Public Records Law.
Among the district court decisions relied on by the Schwab Court was
that of the Second District Court of Appeal in Sarasota Herald Tribune
Company v. Community Health Corporation, Inc.,18 in which the court
held that a nonprofit corporation created and funded by the public
hospital district to operate as a side-by-side corporation to enhance the
services provided by the public hospital was subject to the provisions
of Chapter 119, Florida Statutes. However, both Schwab and the
Sarasota Herald-Tribune cases considered private business concerns
with a governmental agency as one of their clients.
Your factual situation is more analagous to those court cases that
have considered the agency status of private entities providing services
that would otherwise be provided by the government such as Memorial
Hospital-West Volusia, Inc. v. News - Journal Corporation,19 Putnam
County Humane Society, Inc. v. Woodward,20 Prison Health Services,
Inc. v. Lakeland Ledger Publishing Company,21 and Stanfield v.
Salvation Army.22 These cases were not business entities with a broad
client base that were performing an isolated contract for a government
client. These cases illustrate the principle that when a private entity
undertakes to provide a service otherwise provided by the government,
the entity is bound by the Public Records Law to the same extent that
the government would be.23
Finally, the fact that a private entity is incorporated as a nonprofit
corporation is not dispositive on the issue of its status under Chapter
119, Florida Statutes. The relevant question is whether the entity is
“acting on behalf of” an agency. In the instant inquiry, the Biscayne
Park Foundation, Inc., was created by the Village of Biscayne Park
to act as an instrumentality on behalf of the village in financing and
administering certain charitable, educational, and scientific programs.
The village is the sole member of the foundation and retains considerable
control, including the right to remove board members and fill vacancies
on the board. The goals of the foundation are directed toward enhancing
the quality of life in the community through fundraising on behalf of
the Village of Biscayne Park which appears to constitute a municipal
governmental purpose.
In light of the above and applying the “totality of factors” analysis
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developed by the Florida Supreme Court, I am of the opinion that the
Biscayne Park Foundation, Inc., is an “agency” for purposes of Chapter
119, Florida Statutes, and subject to the inspection and copying
requirements thereof.
Question 2. – Government in the Sunshine Law
Section 286.011, Florida Statutes, the Government in the Sunshine
Law, provides in pertinent part:
All meetings of any board or commission of any state agency or
authority or of any agency or authority of any county, municipal
corporation, or political subdivision . . . at which official acts
are to be taken are declared to be public meetings open to the
public at all times . . . .
In determining which entities may be covered by the Sunshine Law,
the courts have stated that it was the Legislature’s intent to extend
application of the law so as to bind “every ‘board or commission’ of the
state, or of any county or political subdivision over which it has dominion
and control.”24 In addition, when interpreting the Sunshine Law, the
law should be liberally construed to give effect to its public purpose.25
Although private organizations are generally not subject to the
Sunshine Law, open meetings requirements can apply if a public entity
has delegated “the performance of its public purpose” to a private
entity.26 The Supreme Court of Florida recognized, in Memorial
Hospital-West Volusia, Inc. v. News-Journal Corporation,27 the “natural
tension between the privatization of traditionally public services and
this State’s constitutional commitment to public access to records and
meetings concerning public business”28and found, in that case, that the
delegation of the performance of its public purpose by a public hospital
to a private entity would result in the private actor being subject to
section 286.011, Florida Statutes, and Article I, section 24(b), Florida
Constitution.29
In a factual situation similar to the one you have presented, this office
considered whether the Pace Property Finance Authority, Inc., which
was created by a county and in which the county prescribed the duties
of the authority and appointed its initial board of directors, was subject
to the Government in the Sunshine Law. In Attorney General Opinion
94-34, the county retained control of the structure and organization of
the authority, including, among other things, the power to remove and
replace directors, amend the articles of incorporation, and approve any
changes in the by-laws. The opinion noted that the authority and its
board of directors were clearly subject to the dominion and control of the
county and concluded that “as an authority created by the county and
subject to its control, the Pace Property Finance Authority, Inc., and its
board of directors are subject to the Government in the Sunshine Law.”
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Like the Pace Property Finance Authority, Inc., the Biscayne Park
Foundation, Inc., was created as a nonprofit corporation to act as an
instrumentality on behalf of the Village of Biscayne Park and for its
benefit in financing and administering certain charitable, educational,
and scientific projects. The village commission created the authority,
approved its articles of incorporation, and must approve any changes
to the articles or the bylaws. The village appointed the members of the
board of directors of the authority and continues to control removal and
replacement of the board members. There is only one member of the
corporation and it is the village itself. The combination of these factors
leads me to conclude that the foundation is subject to the Government
in the Sunshine Law.30
Accordingly, I am of the opinion that the Biscayne Park Foundation,
Inc., is subject to and must comply with the requirements of section
286.011, Florida Statutes.
See http://www.biscayneparkfl.gov/index.asp, Biscayne Park
Foundation, and Village of Biscayne Park, Biscayne Park Foundation
Board Member Application.
1
“Corporate Purposes,” Articles of Incorporation of Biscayne Park
Foundation, Inc., executed April 10, 2007.
2
See Bylaw I: Membership, Amended Bylaws of Biscayne Park
Foundation, Inc., adopted September 14, 2010.
3
4
Id. ss. 1, 3, and 5, Bylaw II: Board of Directors.
5
See s. 4, Bylaw II, supra n.3.
6
Bylaw II: Board of Directors, supra n.3.
7
Bylaw III: Officers, supra n.3.
8
Sections 119.01 and 119.07, Fla. Stat.
Woolling v. Lamar, 764 So. 2d 765 (Fla. 5th DCA 2000), review denied,
786 So. 2d 1186 (Fla. 2001); Dade Aviation Consultants v. Knight Ridder,
Inc., 800 So. 2d 302 (Fla. 3d DCA 2001).
9
10
City of St. Petersburg v. Romine, 719 So. 2d 19 (Fla. 2d DCA 1998).
11
Section 119.011(2), Fla. Stat.
Section 119.071, Fla. Stat.; Wait v. Florida Power & Light Co., 372 So.
2d 420 (Fla. 1979); Miami Herald Publishing Co. v. City of North Miami,
452 So. 2d 572 (Fla. 3d DCA 1984).
12
13
596 So. 2d 1029 (Fla. 1992).
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Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So.
2d 373, 379 (Fla. 1999) (citing Schwab, id. at 1031-32).
14
15
596 So. 2d 1029 (Fla. 1992).
16
Schwab, id. at 1031.
See, e.g., Op. Att’y Gen. Fla. 94-34 (1994) (Pace Property Finance
Authority, Inc., created as a Florida nonprofit corporation by Santa Rosa
County as an instrumentality of the county to provide assistance in
funding and administration of certain governmental programs subject to
Ch. 119, Fla. Stat.); Inf. Op. to Ellis, dated March 4, 1994 (rural health
networks, established as nonprofit legal entities organized to plan and
deliver health care services on a cooperative basis pursuant to s. 381.0406,
Fla. Stat., subject to Ch. 119, Fla. Stat.); Op. Att’y Gen. Fla. 95-17 (1995)
(South Florida Fair and Palm Beach County Expositions, Inc., created
pursuant to Ch. 616, Fla. Stat., subject to Ch. 119, Fla. Stat.).
17
18
582 So. 2d 730 (Fla. 2d DCA 1991).
19
729 So. 2d 373 (Fla. 1999).
20
740 So. 2d 1238 (Fla. 5th DCA 1999).
21
718 So. 2d 204 (Fla. 2d DCA 1998).
22
695 So. 2d 501 (Fla. 5th DCA 1997).
See Dade Aviation Consultants v. Knight Ridder, Inc., 800 So. 2d 302
(Fla. 3d DCA 2001).
23
See, e.g., Times Publishing Company v. Williams, 222 So. 2d 470, 473
(Fla. 2d DCA 1969); City of Miami Beach v. Berns, 245 So. 2d 38 (Fla.
1971).
24
See Board of Public Instruction Of Broward County v. Doran, 224
So. 2d 693 (Fla. 1969); Wood v. Marston, 442 So. 2d 934 (Fla. 1983)
(statute should be broadly construed to effect its remedial and protective
purposes). Cf. Cape Coral Medical Center, Inc. v. News-Press Publishing
Company, Inc., 390 So. 2d 1216, 1218, n.5 (Fla. 2d DCA 1980) (inasmuch
as the policies behind Ch. 119, Fla. Stat., and s. 286.011, Fla. Stat., are
similar, they should be read together); Wood v. Marston, 442 So. 2d 934,
938 (Fla. 1983); Krause v. Reno, 366 So. 2d 1244, 1252 (Fla. 3d DCA 1979),
for the proposition that when attempting to apply the open government
laws to private organizations, the courts look to Ch. 119 to determine the
applicability of the Sunshine Law.
25
Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation,
729 So. 2d 373 (Fla. 1999). And see Mae Volen Senior Center, Inc. v. Area
Agency on Aging, 978 So. 2d 191 (Fla. 4th DCA 2008), review denied, 1
So. 3d 172 (Fla. 2009) (area agencies on aging which are public or private
nonprofit organizations designated by the Department of Elder Affairs
26
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to coordinate and administer department programs and to provide,
through contracting agencies, services for the elderly within a planning
and service area are subject to Ch. 119 and s. 286.011, Fla. Stat., when
considering any contracts requiring the expenditure of public funds).
27
729 So. 2d 373 (Fla. 1999).
28
Id. at 376.
29
Supra n.27 at 383.
And see Op. Att’y Gen. Fla. 04-44 (2004) (Sunshine Law applies to
Prison Rehabilitative Industries and Diversified Enterprises [PRIDE],
the nonprofit corporation established by state law to manage correctional
work programs of the Department of Corrections). Cf. Inf. Op. to Martelli,
dated July 20, 2009 (State Fair Authority created by statute as a public
corporation, is subject to s. 286.011, Fla. Stat.). See also Ops. Att’y Gen.
Fla. 98-55 (1998) (meetings of the board of directors of the Council on
Aging of St. Lucie, Inc., a nonprofit organization incorporated pursuant
to the “Community Care for the Elderly Act,” must comply with the
Sunshine Law); 98-42 (1998) (Florida High School Activities Association,
Inc., having been legislatively designated as the governing organization
of athletics in Florida public schools, is subject to the Sunshine Law);
and 98-01 (1998) (Sunshine Law applies to board of trustees of insurance
trust fund created pursuant to collective bargaining agreement between
city and employee union).
30
AGO 11-02 – February 25, 2011
SPECIAL DISTRICTS–WATER CONTROL DISTRICTS–
MOSQUITO CONTROL
AUTHORITY OF WATER CONTROL DISTRICT TO PROVIDE
ARTHROPOD CONTROL
To: Mr. William J. Nielander, Attorney to the Board of Supervisors of
the Spring Lake Improvement District
QUESTION:
Is the Board of Supervisors of the Spring Lake Improvement
District statutorily authorized under Chapter 2005-342, Laws of
Florida, or Chapter 298,1 Florida Statutes, to use district funds
for the control of arthropods?
SUMMARY:
The Board of Supervisors of the Spring Lake Improvement
District does not appear to be statutorily authorized under
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Chapter 2005-342, Laws of Florida, or Chapter 298, Florida
Statutes, to use district funds for the control of arthropods.
According to your letter, the Spring Lake Improvement District
initiated mosquito spraying in 1980 and has owned and operated
mosquito control equipment and supplies since that time. Recently,
however, outside counsel for the district advised the board of supervisors
for the district that in light of the district’s enabling legislation, the
district did not have the authority to assess and conduct mosquito
control. The board of supervisors, therefore, has requested this office’s
opinion on this issue.
You have not identified the types of expenditures in question; therefore,
any comments must be general in nature. Moreover, this office cannot
pass upon the validity of actions previously taken by a public body, nor
can this office validate any such action taken. Accordingly, this office
will not comment upon the past actions of the Spring Lake Improvement
District in utilizing district funds to provide for the control of arthropods,
but rather is expressly limited to a consideration of the requirements of,
and the authority granted by, the existing statutes which relate to the
special district.
The Spring Lake Improvement District (district) was created by
Chapter 71-669, Laws of Florida,2 and authorized to exercise the powers
conferred upon drainage and water control districts by Chapter 298,
Florida Statutes.3 In 2005, pursuant to a legislative mandate, all of the
special acts relating to the district were codified, in order to provide a
single, comprehensive special act charter for the district, which included
all current legislative authority granted to the district by its several
legislative enactments and any additional authority granted by the
act.4 Section 3 of Chapter 2005-342, Laws of Florida, in codifying the
special acts, authorizes the district to exercise any and all other powers
conferred upon drainage districts by Chapter 298, Florida Statutes.5
The special act authorizes the board of supervisors, as the governing
body for the district, to access and impose an ad valorem tax, an annual
drainage tax, and a maintenance tax as provided therein.6
As a statutorily created entity, the district may only exercise such
powers as have been expressly granted by statute or must necessarily
be exercised in order to carry out an express power.7 Moreover, any
reasonable doubt as to the lawful existence of a particular power sought
to be exercised must be resolved against the exercise thereof.8
A review of the enabling legislation for the district, as well as
Chapter 298, Florida Statutes, failed to reveal a provision authorizing
the expenditure of district funds for arthropod control. Section 298.22,
Florida Statutes, in setting forth the powers of the board of supervisors
of a water control district, provides that the board “has full power and
authority to construct, complete, operate, maintain, repair, and replace
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-02
any and all works and improvements necessary to execute the water
control plan[,]” which is defined as
the comprehensive operational document that describes the
activities and improvements to be conducted by a water control
district authorized under this chapter and includes any district
“plan of reclamation,” “water management plan,” or “plan of
improvement” that details the system of water management
improvements implemented by a water control district.9
Similarly, the charter for the district relates to the implementation
of a water control plan and the improvement and maintenance of water
and sewer systems.10 While the charter does authorize the district to
expend funds for other purposes such as roads, parks and recreational
facilities, and street lighting, there is no provision for the control of
arthropods.11
You refer to the minutes for a meeting of the board of supervisors for
April 15, 1980, which indicate that a motion was passed “to approve
Spring Lake as a Mosquito Control District.”12 You also refer to the
provisions of section 388.031, Florida Statutes (1979), as providing
a possible basis for such action. That statute provided for a petition
signed by not less than 15 percent of the registered electors of the
territory to be submitted to the board of county commissioners for the
creation of a mosquito control district.13 Pursuant to section 388.041,
Florida Statutes (1979), the board of county commissioners was required
to determine the feasibility of creating such a district, and pursuant
to section 388.051, Florida Statutes (1979), to submit the issue of
creating such a district to the electorate for approval.14 This office has
no information that such a procedure was utilized. In the absence of
statutory authorization, however, a special district would not possess
the authority to amend the terms of its enabling legislation.15
Moreover, the Legislature in 2010 enacted Chapter 10-266, Laws of
Florida, which sought to amend the district’s enabling legislation to
specifically authorize the district to provide arthropod control.16 The
act, however, was contingent upon approval by the electorate of the
district.17 It appears that the act failed to gain the approval of the
electorate at the general election in November 2010.18
Accordingly, in light of the above, the Board of Supervisors of the
Spring Lake Improvement District does not appear to be statutorily
authorized under Chapter 2005-342, Laws of Florida, or Chapter 298,
Florida Statutes, to use district funds for the control of arthropods.
While your letter referred to Ch. 289, Fla. Stat., it appears that you
intended to refer to Ch. 298, Fla. Stat.
1
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2
As this office noted in Attorney General Opinion 09-13 (2009), the
Spring Lake Drainage District was created pursuant to Ch. 298, Fla. Stat.
The name of the district was changed to the Spring Lake Improvement
District by Ch. 71-669, Laws of Fla., which broadened the scope of the
powers and duties of the district as they related to the construction of
roads and highways, drainage and water control systems, water and
sewage facilities, and recreational facilities. And see Chs. 77-563, 88-461,
and 90-434, Laws of Fla., which subsequently amended Ch. 71-669, Laws
of Fla.
3
See s. 9(24), Ch. 71-669, Laws of Fla.
4
Section 1, Ch. 2005-342, Laws of Fla.
See s. 10(27) of the district charter, as amended by s. 3, Ch. 2005-342,
Laws of Fla. But see s. 4, Ch. 2005-342, Laws of Fla., stating that while
the provisions of Ch. 298, Fla. Stat., are applicable to the district to the
extent not inconsistent with the special act with the exception of certain
enumerated sections of Ch. 298, Fla. Stat. Cf. s. 298.01, Fla. Stat.,
stating that it is the legislative intent that those water control districts
established prior to July 1, 1980, pursuant to the process formerly
continued in ss. 298.01, 298.02, and 298.03, may continue to operate as
outlined in Ch. 298, Fla. Stat.
5
See s. 10(10) of the district charter as provided in s. 3, Ch. 2005-342,
Laws of Fla. And see s. 17 of the charter providing for the assessment of
land for reclamation.
6
See Forbes Pioneer Boat Line v. Board of Commissioners of Everglades
Drainage District, 82 So. 346 (Fla. 1919); Halifax Drainage District of
Volusia County v. State, 185 So. 123, 129 (Fla. 1938); State ex rel. Davis v.
Jumper Creek Drainage District, 153 Fla. 451, 14 So. 2d 900, 901 (1943)
(because the districts are creatures of statute, each board of supervisors
must look entirely to the statute for its authority); Roach v. Loxahatchee
Groves Water Control District, 417 So. 2d 814 (Fla. 4th DCA 1982). And
see Ops. Att’y Gen. Fla. 89-34 (1989), 96-66 (1996), 98-20 (1998), and 0426 (2004).
7
Halifax Drainage District of Volusia County v. State, supra; State ex
rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st
DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974); City of Cape Coral
v. GAC Utilities, Inc., of Florida, 281 So. 2d 493 (Fla. 1973). And see, e.g.,
Ops. Att’y Gen. Fla. 02-30 (2002) and 04-48 (2004).
8
Section 298.005(3), Fla. Stat. And see Roach v. Loxahatchee Groves
Water Control District, supra, stating that the Legislature, in providing
for the organization of water control districts (then commonly known as
drainage districts) by the enactment of a general law, now codified as Ch.
298, Fla. Stat., conferred certain limited powers on these statutory entities
for the purpose of reclaiming and draining swamps and overflowed lands.
9
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11-02
10
See s. 3 of Ch. 2005-342, Laws of Fla., reenacting s. 10 of the Spring
Lake Improvement District’s charter. And see ss. 15 and 16 of the charter
providing for the adoption of a water control plan.
See, e.g., ss. 10(17) (maintenance of roads), 10(22) (operation and
maintenance of parks and facilities for indoor and outdoor recreation,
cultural, and educational uses), and 10(24) (streetlights) of the district’s
charter. And see s. 10(25) and (26) of the district charter, respectively
authorizing the district to require underground utilities and to require
landowners within the district to maintain their respective properties “in
a neat and attractive condition.”
11
Book 13, page 125, Minutes for a Meeting of the Board of Supervisors,
April 15, 1980. You have also enclosed a letter from the Clerk of Courts,
Highlands County, stating that no additional information regarding this
motion was located. See Letter to Joseph DeCerbo, District Manager,
from Pamela Nava, Deputy Clerk, dated January 10, 2011.
12
Section 388.031, Fla. Stat. (1979), was repealed by s. 12, Ch. 80-281,
Laws of Fla.
13
These procedures for creating a mosquito control district were also
repealed by Ch. 80-281, Laws of Fla.
14
As noted supra, special districts possess only such powers as are
expressly granted by statute or necessarily implied therefrom. See n.7,
supra. Cf. Ops. 97-57 (1997), 93-05 (1993), 90-27 (1990), 81-55 (1981),
81-7 (1981), and 74-121 (1974) (county has no authority to amend or alter
the provisions of a special act passed by the state Legislature). I note that
s. 2, Ch. 2005-342, Laws of Fla., in ratifying and approving the creation
of the district in 2005, provides in part that “[a]ll lawful debts, bonds,
obligations, contracts, franchises, promissory notes, audits, minutes,
resolutions, and other undertakings of the Spring Lake Drainage District
are hereby validated and shall continue to be valid and binding on the
Spring Lake Improvement District in accordance with their respective
terms, conditions, covenants, and tenor.” This language, which is
identical to that contained in the district’s original enabling legislation,
Ch. 71-669, Laws of Fla., appears to be a ratification of actions taken
when the district was the Spring Lake Drainage District.
15
See s. 1, Ch. 10-266, Laws of Fla., amending and renumbering s. 10 of
the charter as s. 8 and providing in paragraph (1)(o) that the district has
the power “[t]o construct and maintain facilities for and take measures to
control mosquitoes and other arthropods of public health importance.”
16
See s. 4, Ch. 10-266, supra, stating that the “act shall take effect
only upon its approval by a majority vote of those qualified electors of
the district voting in a referendum conducted in accordance with the
provisions of law relating to elections currently in force, except that this
section and section 3 shall take effect upon this act becoming a law.”
17
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See http://www.votehighlands.com/ for the results of the 2010 general
election, including the referendum on the proposed amendment to the
district charter.
18
AGO 11-03 – February 25, 2011
E911 – PUBLIC SAFETY TELECOMMUNICATORS –
AIRPORTS – EMERGENCIES – SAFETY – TRAINING –
DEPARTMENT OF HEALTH
COMMUNICATION SPECIALISTS AS PUBLIC SAFETY
TELECOMMUNICATORS SUBJECT TO TRAINING
REQUIREMENTS
To: Mr. Charles D. Bailey, Jr., general counsel to the Sarasota Manatee
Airport Authority
QUESTION:
Does section 401.465(2)(a), Florida Statutes, require
communication specialists within the Sarasota Bradenton
International Airport’s communications center to be trained
and certified as “911 public safety telecommunicators” when
they do not take E911 calls and they are not employed at a 911
“answering point?”
SUMMARY:
Section 401.465(2)(a), Florida Statutes, does not require
communication specialists within the Sarasota Bradenton
International Airport’s communications center to be trained
and certified as “911 public safety telecommunicators.”
The Sarasota-Manatee Airport Authority is a special district in
Manatee and Sarasota Counties created for the purpose of “acquiring,
constructing, improving, financing, operating, and maintaining airport
facilities.”1 The authority has been designated a public instrumentality
by the Legislature and is deemed to be exercising an essential
governmental function.2 You have advised this office that the authority
owns and operates the Sarasota Bradenton International Airport
(“SRQ”) which serves scheduled passenger air carriers in Sarasota
and Manatee Counties. The airport straddles the county line between
the two counties, and a portion of the airport is located in the City of
Sarasota. You question whether communication specialists working for
the Sarasota Bradenton International Airport’s communications center
are required by section 401.465(2)(a), Florida Statutes, to be trained
and certified as “911 public safety telecommunicators.”
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11-03
Amendments made during the 2010 legislative session to section
401.465(2)(a), Florida Statutes, the “Denise Amber Lee Act,” require
that, effective October 1, 2010, any person employed as a 911 public
safety telecommunicator at a public safety answering point, as that
term is defined in section 365.172(3)(a), Florida Statutes,3 must be
certified by the Florida Department of Health.4 Certification requires
the telecommunicator to receive training of no less than 232 hours and
to pass an exam.5 Every two years, the telecommunicator must receive
20 additional hours of training for certificate renewal.6 The law also
recognizes certain “grandfather” exceptions.7
Section 401.465, Florida Statutes, was amended by Chapter 2010188, Laws of Florida, and those changes became effective July 1, 2010.8
The bill described the situation regarding Florida’s E911 system prior
to enactment of Chapter 2010-188, Laws of Florida:
Emergency dispatchers are often the initial point of contact
for the public when emergency assistance is required.
Emergency dispatchers receive emergency calls from the
public requesting police, fire, medical or other emergency
services. These personnel determine the nature and location
of the emergency, determine the priority of the emergency, and
communicate the nature of the call to police, fire, ambulance,
or other emergency units as necessary and in accordance with
established procedures. Emergency dispatchers receive and
process 911 emergency calls, maintain contact with all units on
assignment, and maintain status and location of police, fire, and
other emergency units, as necessary. Emergency dispatchers
may be trained to enter, update, and retrieve information from
a variety of computer systems to assist callers.9
The bill also notes that a variety of training programs existed to train
and certify emergency dispatchers including in-house training and
certificate courses from private vendors.10
Chapter 2010-188, Laws of Florida, amended section 401.465, Florida
Statutes, to expand the definition of a “public safety telecommunicator,”
formerly designated an “emergency dispatcher,” to read as follows:
“911 public safety telecommunicator emergency dispatcher”
means a person employed by a state agency or local government
as a public safety dispatcher or 911 operator whose duties and
responsibilities include the answering, receiving, transferring,
and dispatching functions related to 911 calls; dispatching law
enforcement officers, fire rescue services, emergency medical
services, and other public safety services to the scene of an
emergency; providing real-time information from federal,
state, and local crime databases; or supervising or serving
as the command officer to a person or persons having such
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11-03
BIENNIAL REPORT OF THE ATTORNEY GENERAL
duties and responsibilities. However, the term does not include
administrative support personnel, including, but not limited
to, those whose primary duties and responsibilities are in
accounting, purchasing, legal, and personnel. (Underscored
text was added by the amendment; text stricken through was
deleted by the amendment.)
The intent of the Legislature in adopting Chapter 2010-188, Laws of
Florida, appears to have been the professionalization of E911 service by
creating a mandatory statewide system for the certification and training
of these personnel;11 expanding the duties and functions of public safety
telecommunicators;12 adopting penalties for violations of the act;13 and
extending funding options for implementing the provisions of the act.14
According to your letter, in Sarasota County, the central dispatch 911
answering point is the Public Safety Communications (“PSC”) Center.
The PSC is a joint venture between the Sarasota County Sheriff’s Office
and the Public Safety Communications Services section of the Sarasota
County Emergency Services Business Center. The PSC provides
full communications services for the police and fire departments in
the area. In Manatee County, the county operates the Emergency
Communications Center (“ECC”) which serves as the 911 answering and
dispatch center for Manatee County Emergency Medical Service and
eleven local fire agencies. The ECC is also the call processing center for
the Manatee County Sheriff’s Office and the City of Bradenton Beach
Police Department.
You advise that the SRQ has implemented, as required by federal
law,15 an airport emergency plan for responding to aircraft incidents and
accidents, bomb incidents, structural fires, and other emergencies solely
on the airport grounds. These functions are provided through SRQ’s
aircraft rescue and firefighting department. In addition, pursuant to
federal law,16 the airport employs its own police department, staffed
by 15 law enforcement officers. These officers are authorized to make
arrests for violations of state or federal law or applicable county or
municipal ordinance if the violation occurs on airport grounds.
The firefighting, rescue, and law enforcement functions at SRQ are
supported by an Airport Communications Center (“AIRCOM”) located
in the main airport terminal. Communication specialists within that
department dispatch only airport emergency calls to SRQ firefighters,
rescue, or law enforcement to various points of the airport where they
may be needed. You state that AIRCOM utilizes two internal emergency
telephone numbers: a “hotline” linking the air traffic control tower,
aircraft rescue and firefighting department, and the communications
center; and an internal emergency line that is only accessible to airport
tenants, staff, and holders of security badges. Neither of these lines
is capable of receiving calls placed to the telephone number “911” and
E911 calls coming into the Sarasota and Manatee call centers are never
16
BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-03
transferred to AIRCOM or to SRQ firefighters, rescue, or police units.
You state that when “911” is dialed from any pay phone, outgoing tenant
or airport phone, or cell phone, the call goes to either the Sarasota PSC
or Manatee ECC depending on the location of the caller. No “911” calls
are routed to or transferred to AIRCOM communication specialists
although Sarasota PSC and Manatee ECC do notify AIRCOM’s
communication specialists of any emergencies occurring on airport
grounds once they have dispatched county units to the scene. Thus, the
airport communications center would not appear to be an “answering
point” for purposes of section 365.172(3)(a), Florida Statutes, which
defines that term to mean “the public safety agency that receives
incoming 911 calls and dispatches appropriate public safety agencies to
respond to the calls.”
While SRQ’s communication specialists may be seen to be a type of
public safety dispatcher, these employees of the airport do not answer,
receive, transfer, or dispatch 911 calls. Nor does it appear that the
airport serves as a public safety answering point as that term is defined
in section 365.172(3)(a), Florida Statutes.
In sum, based upon the information you have provided and in view
of the Legislature’s intent that section 401.465, Florida Statutes, result
in the professionalization of the E911 service, it is my opinion that
section 401.465(2)(a), Florida Statutes, does not require communication
specialists within the Sarasota Bradenton International Airport’s
communications center to be trained and certified as “911 public safety
telecommunicators.”
1
Section 3(1), Ch. 2003-309, Laws of Fla.
2
Id.
3
Section 365.172(3)(a), Fla. Stat., defines a public safety “[a]nswering
point” as “the public safety agency that receives incoming 911 calls and
dispatches appropriate public safety agencies to respond to the calls.”
4
Section 401.465(2)(a), Fla. Stat.
5
See Rule 64J-3.002, Fla. Admin. C.
6
Rule 64J-3.003, Fla. Admin. C.
7
See s. 401.465(2), Fla. Stat.
8
See s. 5, Ch. 2010-188, Laws of Fla.
See The Florida Senate Bill Analysis and Fiscal Impact Statement on
CS/CS/CS/SB 742, dated April 8, 2010, by the Committee on Health and
Human Services Appropriations.
9
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10
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Id.
See Item III, s. 3, p. 7, The Florida Senate Bill Analysis and Fiscal
Impact Statement for CS/CS/CS/SB 742 prepared by the Health and
Human Services Appropriations Committee, dated April 8, 2010. And
see Op. Att’y Gen. Fla. 10-27 (2010).
11
12
Section 3, Ch. 2010-188, Laws of Fla.
13
Section 2, Ch. 2010-188, Laws of Fla.
Section 1, Ch. 2010-188, Laws of Fla., amends s. 365.172, Fla. Stat., to
add dispatching functions to uses of E911 fees.
14
15
14 C.F.R. s. 139.325.
16
Title 49 C.F.R. Parts 1542 and 1544.
AGO 11-04 – March 15, 2011
GOVERNMENT IN THE SUNSHINE – CRIMINAL JUSTICE
COMMISSIONS – COUNTIES – SHERIFFS – STATE
ATTORNEYS
EFFECT OF APPOINTMENT OF OTHER TO SERVE ON
COMMISSION INSTEAD OF SHERIFF OR STATE ATTORNEY ON
COMMUNICATION BETWEEN SHERIFF AND STATE ATTORNEY
To: The Honorable Michael F. McAuliffe, State Attorney, Fifteenth
Judicial Circuit
QUESTION:
Would section 286.011, Florida Statutes, apply to
communications between the state attorney and the sheriff
when, as authorized by ordinance, each elects to appoint an
individual in each officer’s place to serve as a member of the
Palm Beach County Criminal Justice Commission?
SUMMARY:
When the state attorney and the sheriff elect to appoint
individuals to serve on the Palm Beach County Criminal
Justice Commission in the place of each officer, as authorized
by county ordinance, neither the state attorney nor the sheriff
would appear to be a member of the commission such that
communications between the two officials would be subject to
section 286.011, Florida Statutes.
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-04
You state that the Palm Beach County Criminal Justice Commission
(commission) is an advisory board established by county ordinance.
The commission functions to make recommendations to the county
commission on policies and programs designed to: coordinate law
enforcement and crime prevention efforts; provide an efficient, cost
effective, and timely county criminal justice system; and permanently
reduce crime.1 The county ordinance creating the commission currently
provides that the sheriff and the state attorney are members of the
commission.2 There has been concern that in numerous instances when
the sheriff and the state attorney communicate regarding pending
criminal investigations and prosecutions that there may be discussion
involving matters which may foreseeably come before the commission for
official business. To address these concerns, the county is contemplating
amending the ordinance to enable constitutional officers to either serve
as members of the board or to appoint others to serve in their places.
The question arises, therefore, whether communications between two
such officers who have appointed individuals to serve on the commission
would be subject to section 286.011, Florida Statutes.
Section 286.011, Florida Statutes, commonly referred to as the
“Sunshine Law,” provides a right of access to governmental proceedings
of public boards and commissions. The law applies equally to elected or
appointed boards and covers any gathering, whether formal or casual,
of two or more members of the same board to discuss a matter upon
which foreseeable action will be taken by the board.3
There is no question that the Palm Beach County Criminal Justice
Commission, a collegial commission created by county ordinance to
advise the county commission on criminal justice matters, is a public
board or commission subject to the Sunshine Law.4 In Attorney General
Opinion 93-41, this office determined that communications between the
sheriff and state attorney, as members of the county’s criminal justice
commission, were subject to the Sunshine Law when such discussions
involved matters which foreseeably could come before the commission.
The opinion noted, however, that to the extent that the discussions
related to an ongoing criminal case or investigation or related to factual
inquiries or matters upon which the commission was not required to
act, the discussions would not fall within the scope of the Sunshine Law.
In the factual situation you have presented, the proposed county
ordinance states that the sheriff and the state attorney will have
the option of serving on the commission or each may designate an
individual to serve on the board in his or her stead. As you have
recognized, the Sunshine Law does not allow a board or commission to
delegate its business to an alter ego in order to escape application of the
law.5 This would apply equally to an individual who serves on a board
or commission. It does not appear, however, that in appointing an
individual to serve on the commission as provided by county ordinance,
the sheriff or state attorney would be delegating authority to an alter
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
ego; rather, to the extent the appointment of the individual removes the
sheriff or the state attorney from any connection with the commission,
the appointed individual becomes a member of the commission in his or
her own right subject to the restrictions of the Sunshine Law.
As you note, should the sheriff and state attorney appoint individuals
to serve on the commission, they (the sheriff and the state attorney)
should not serve as a liaison between the appointed commission
members on matters that may foreseeably come before the commission.6
Accordingly, it is my opinion that the sheriff or the state attorney who,
as authorized by county ordinance, appoints an individual to serve on
the Palm Beach County Criminal Justice Commission, is not a member
of the commission such that communications between the sheriff and
the state attorney would be subject to the Sunshine Law.
Section 2-217, Div. 5, Art. 5, Ch. 2, Palm Beach County Code of
Ordinances (Ord. No. 88-16, s. 2, 8-16-88), setting forth the objectives of
the Palm Beach County Criminal Justice Commission.
1
See Sec. 2-216, Div. 5, Art. 5, Ch. 2, Palm Beach County Code of
Ordinances.
2
See Hough v. Stembridge, 278 So. 2d 288 (Fla. 3d DCA 1973); City of
Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971); and Board of Public
Instruction of Broward County v. Doran, 224 So. 2d 693 (Fla. 1969).
3
See Op. Att’y Gen. Fla. 93-41 (1993) (Hillsborough County Criminal
Justice Commission created by county ordinance and serving a countywide agency developing and making recommendations on criminal
justice issues is subject to, and must comply with the requirements of,
the Government-in-the-Sunshine Law).
4
See IDS Properties, Inc. v. Town of Palm Beach, 279 so. 2d 353, 359
(Fla. 4th DCA 1973), certified question answered sub. nom., Town of
Palm Beach v. Gradison, 296 So. 2d 473 (Fla. 1974). See also News-Press
Publishing Company, Inc. v. Carlson, 410 So. 2d 546, 547-548 (Fla. 2d
DCA 1982) (when public officials delegate de facto authority to act on
their behalf in the formulation, preparation, and promulgation of plans on
which foreseeable action will be taken by those public officials, delegates
stand in the shoes of such public officials under the Sunshine Law).
5
See Op. Att’y Gen. Fla. 74-47 (1974) (city manager who is not member of
city commission may meet with individual council members, but may not
act as liaison for council members to circulate information and thoughts
of individual members).
6
20
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11-05
AGO 11-05 – March 15, 2011
OFFICERS – CLERK OF COURT – DUAL OFFICE-HOLDING –
INCOMPATIBILITY – DEPUTY CLERK
WHETHER DEPUTY CLERK OF COURT MAY
SIMULTANEOUSLY HOLD OFFICE OF COUNTY
COMMISSIONER WITHOUT VIOLATING DUAL OFFICEHOLDING PROHIBITION AND COMMON LAW RULE OF
INCOMPATIBILITY
To: The Honorable James B. Jett, Clay County Clerk of the Circuit
Court
QUESTION:
May a deputy clerk of court, employed in the recording
department within the Clerk of Court’s office, also hold an
elected position as a county commissioner without violating the
dual office-holding prohibition contained in Article II, section
5(a), Florida Constitution?
SUMMARY:
A deputy clerk of court, employed in the recording
department within the Clerk of Court’s office as the Director
of Special Projects, may also hold an elected position as a
county commissioner without violating the dual office-holding
prohibition contained in Article II, section 5(a), Florida
Constitution.
As the Clay County Clerk of the Circuit Court, responsible for the
operation of the Clerk of Court’s office, you have asked whether an
employee of that office who works in the recording department may
simultaneously hold the position of county commissioner without
violating the constitutional dual office-holding prohibition. You advise
that as a deputy clerk of court this employee is not vested with any
powers in his own right, but merely acts as an agent of the elected clerk
of courts in fulfilling his duties and responsibilities. These duties are
ministerial and he performs them as they are assigned to him by the
clerk of courts. As the head of the agency, you are concerned that the
acceptance of an office by a member of your staff may result in a vacancy
in the position of deputy clerk in light of the constitutional prohibition
against dual office-holding.1
Article II, section 5(a), Florida Constitution, provides in part:
No person shall hold at the same time more than one office
under the government of the state and the counties and
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municipalities therein, except . . . any officer may be a member
of a . . . statutory body having only advisory powers.
This constitutional provision prohibits a person from serving
simultaneously in more than one state, county, or municipal office.
The prohibition applies to both elected and appointed offices.2 It is not
necessary that the two offices be located within the same governmental
unit or local jurisdiction. Thus, for example, a municipal officer is
precluded from holding not only another municipal office within his
or her municipality, but also a municipal office in another jurisdiction.
Likewise, a municipal officer is precluded from simultaneously holding
a state or county office within or outside his home county.
While the term “office” is not defined by the Constitution, the Supreme
Court of Florida has stated that the term “implies a delegation of a
portion of the sovereign power to, and the possession of it by, the person
filling the office . . . .”3 In the absence of any definition of the term “office”
or “officer” for purposes of interpreting the constitutional dual officeholding prohibition, the issue becomes whether a particular undertaking
constitutes an “office” or is instead an “employment.” Employment does
not subject the holder of the position to dual office-holding considerations
since the courts have determined that employment does not involve the
delegation of any of the sovereign power of the state.4
The Florida Supreme Court has stated that a person in government
service, who derives his position from a duly and legally authorized
election or appointment, whose duties are continuous in their nature
and defined by rules prescribed by government and not by contract,
consisting of the exercise of important public powers, trusts, or duties,
as part of the regular administration of the government is a public
officer.5 Every “office,” as that term is used in the constitution, implies
an authority to exercise some portion of the sovereign power, either in
making, executing, or administering the laws.6 Thus, it is the delegation
of any part of the authority of the sovereign that distinguishes an officer
from an employee.
Service on the governing body of a governmental entity, such as a
city or county, clearly constitutes an office.7 Thus, as an elected county
commissioner your employee is or will be an officer for purposes of the
constitutional provision. The issue, then, is whether service as a deputy
clerk of court is an office.
This office has stated previously that the constitutional prohibition
against dual office-holding does not generally apply to those persons
who are not vested with official powers in their own right, but merely
exercise certain powers as agents of governmental officers. Thus, in
Attorney General Opinion 88-56, this office focused on the nature of the
duties performed by a deputy clerk in determining whether he was an
officer or an employee. Finding that the deputy clerk performed largely
22
BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-05
ministerial duties as an assistant to the clerk rather than the substitute
duties of a true deputy, this office concluded that the position of deputy
clerk under those circumstances evinced an employment rather than
an office.8
You have stated in your letter that this position is not vested with any
powers in its own right. Rather, the deputy clerk performs ministerial
duties and responsibilities as those are assigned by the clerk of courts.
A copy of the job description provided by your office indicates that
the Director of Special Projects works within the Clerk’s recording
department to supervise the office’s move to a paperless court work
environment:
He/she serves as a supervisor for the special projects team with
primary responsibilities of developing procedures, evaluate
methods, organize and implement the scanning, linking, and
subsequent destruction of court cases paper files to create a
total electronic court case environment.
The purpose of this special projects team is to achieve the goal
of the Clerk of Court’s office in providing a total paperless court
system and eliminate all paper files by converting them to
electronic case files.9
While the Director of Special Projects is obviously a significant part
of the Clerk of Court’s team, I cannot say from this description that
this position constitutes an office subject to the dual office-holding
prohibition.
Therefore, it is my opinion that a deputy clerk of court, employed
in the recording department within the Clerk of Court’s office as the
Director of Special Projects, may also hold an elected position as a county
commissioner without violating the dual office-holding prohibition
contained in Article II, section 5(a), Florida Constitution.
Finally, I would note that while the viability of a common law rule
of incompatibility is questionable in this state following the Florida
Supreme Court’s holding in State ex rel. Clayton v. Board of Regents,10
for many years Florida courts and this office recognized such a rule.
The purpose of the common law rule of incompatibility was to assure
not only the actuality of undivided loyalty, but also the appearance of
undivided loyalty.11 As one court stated:
Incompatibility exists “where in the established governmental
scheme one office is subordinate to another, or subject to
its supervision or control, or the duties clash, inviting the
incumbent to prefer one obligation to another.” . . . If the duties
of the two offices are such that when “placed in one person they
might disserve the public interests, or if the respective offices
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
might or will conflict even on rare occasions it is sufficient to
declare them legally incompatible.”12
Thus, this office stated that a conflict between the duties and functions
of the two offices exists where one was subordinate to the other and
subject in some degree to the supervisory power of its incumbent, or
where the incumbent of one had the power to appoint or remove or set
the salary or the other, or where the duties clash, inviting the incumbent
to prefer one obligation over the other.13 The common law rule was also
applicable to an officer seeking employment that was incompatible with
the duties and functions of his or her office.14
With regard to any incompatibility in the two positions involved in
your request, you have advised this office that the Clay County Clerk of
Courts has been eliminated from the county budgetary process through
changes to the Florida Constitution requiring clerks’ offices to be funded
through fees and service charges collected by that office and handled by
the State of Florida and the Clerks of Court Operations Corporation.15
The deputy clerk about whom you inquire is paid from fees generated
from within the recording department of your office. His position as a
deputy clerk of court does not appear to be subordinate or subject in
any way to the office of county commissioner to which he seeks election.
Thus, while the common law rule of incompatibility no longer appears
to be a concern for governmental officers in Florida, in the situation
you have presented, application of that rule would not preclude the
accomplishment of these two positions by one individual.
See In re Advisory Opinion to the Governor, 79 So. 874 (Fla. 1918)
(when a person holding one office is appointed to and accepts another
office, such appointment and acceptance vacates the person’s right and
status to the first office); and Ops. Att’y Gen. Fla. 06-27 (2006), 06-13
(2006), 94-40 (1994), and 77-63 (1977). Cf. Holley v. Adams, 238 So. 2d
401, 407 (Fla. 1970) (acceptance of an incompatible office by one already
holding office operates as a resignation of the first).
1
2
See Ops. Att’y Gen. Fla. 69-2 (1969) and 80-97 (1980).
3
See State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919).
See State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919) (“An
employment does not authorize the exercise in one’s own right of any
sovereign power or any prescribed independent authority of a governmental
nature; and this constitutes perhaps the most decisive difference between
an employment and an office, and between an employee and an officer”).
And see, e.g., Ops. Att’y Gen. Fla. 96-91 (1996) (special master of county
value adjustment board an officer); 84-93 (1984) (legal counsel to local
government code enforcement board an employee); and 73-332 (1973)
(attorney for county commission an employee).
4
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-06
State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897).
5
See State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919)
(“An employment does not authorize the exercise in one’s own right
of any sovereign power or any prescribed independent authority of a
governmental nature; and this constitutes, perhaps, the most decisive
difference between an employment and an office, and between an
employe[e] and an officer.”). And see Ops. Att’y Gen. Fla. 10-19 (2010),
96-91 (1996), and 84-93 (1984) (legal counsel to local government code
enforcement board an employee).
6
See Ops. Att’y Gen. Fla. 08-15 (2008), 05-59 (2005), 72-348 (1972), and
74-73 (1974).
7
And see Op. Att’y Gen. Fla. 96-48 (1996).
8
See Clay County Clerk of Court Job Description for Director of Special
Projects.
9
10
635 So. 2d 937 (Fla. 1994).
11
See Ops. Att’y Gen. Fla. 93-42 (1993) and 88-56 (1988).
Gryzik v. State, 380 So. 2d 1102, 1104 (Fla. 1st DCA 1980), petition for
review denied, 388 So. 2d 1113 (Fla. 1980).
12
See, e.g., Ops. Att’y Gen. Fla. 72-348 (1972) (city council may not
appoint one of its own members as chief of police); 72-102 (1972) (board
of trustees of hospital district should not appoint one of its members to
the position of consulting pharmacist at a nominal fee); 73-359 (1973)
and 80-17 (1980) (board of county commissioners may not appoint one of
its own members to serve on governing board of special district); and 7560 (1975) (county commission should not appoint one of its members to
county industrial authority).
13
14
See Op. Att’y Gen. Fla. 70-46 (1970).
15
See ss. 28.35 - 28.37, Fla. Stat.
AGO 11-06 – March 15, 2011
MOSQUITO CONTROL DISTRICTS – OFFICES – VACANCIES
APPOINTMENT TO FILL VACANCY ON FLORIDA KEYS
MOSQUITO CONTROL DISTRICT BOARD OF COMMISSIONERS
TO BE MADE BY THE GOVERNOR
To: Ms. Lorena Holley, General Counsel, Florida Department of
Agriculture and Consumer Services
25
11-06
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QUESTION:
Does section 388.111, Florida Statutes, or section 3(3),
Chapter 2002-346, Laws of Florida, control the manner in which
a vacancy is filled on the board of commissioners for the Florida
Keys Mosquito Control District?
SUMMARY:
Section 3(3), Chapter 2002-346, Laws of Florida, as the more
recent and specific legislative directive, controls the manner in
which a vacancy is filled and calls for the Governor to appoint
an individual to fill a vacancy on the board of commissioners for
the Florida Keys Mosquito District.
You state that the recent death of a commissioner for the Florida
Keys Mosquito Control District, creating a vacancy on the board, has
highlighted an apparent conflict between section 388.111, Florida
Statutes, under which the Commissioner of Agriculture fills a vacancy
on the board of a mosquito control district, and section 3(3), Chapter
2002-346, Laws of Florida, providing that the Governor appoints an
individual to fill a vacancy on the board of the Florida Keys Mosquito
Control District.1
Chapter 388, Florida Statutes, generally addresses the creation and
operation of mosquito control districts in this state.2 Section 388.111,
Florida Statutes, states that “[i]n the event of a vacancy due to any cause
in any board of commissioners, the same shall be filled by appointment
by the Commissioner of Agriculture for the unexpired term.” Thus,
for those mosquito control districts created and operating under the
provisions of Chapter 388, Florida Statutes, the controlling statute
directs that the Commissioner of Agriculture fills by appointment any
vacancy on the board of commissioners of the district.
The Florida Keys Mosquito District was created by special act.3 A
board of five elected commissioners governs the district.4 Upon election
to the board, a commissioner is required to make and execute to the
Governor a surety bond, conditioned on the faithful execution of his or
her office.5 Relative to vacancies on the board, the special act provides
that “[v]acancies created by the resignation, death, or removal from
said board of commissioners shall also be filled by appointment by the
Governor.”6
It is a general rule of statutory construction that a specific statute
governing a certain subject will control over a general statute relating
to the same subject matter.7 Moreover, the last expression of the
Legislature takes precedence over earlier enactments on the same
subject.8 As the more specific and later in time, the provisions in section
3(3), Chapter 2002-346, Laws of Florida, would apply to the appointment
26
BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-06
of individuals to fill vacancies on the Florida Keys Mosquito Control
District.9
Accordingly, it is my opinion that the Governor has the authority to
appoint individuals to fill vacancies which may occur on the board of
commissioners for the Florida Keys Mosquito Control District, under
section 3(3), Chapter 2002-346, Laws of Florida.
A response to your inquiry necessarily requires comment upon the
authority of the Governor. The Governor’s Office has advised that it has
no objection to this office commenting on the issue.
1
2
See ss. 388.021-388.4111, Fla. Stat.
See Ch. 2002-346, Laws of Fla., codifying all previous special acts
relating to the Monroe County Mosquito Control District and stating
the Legislature’s intent to “provide a single, comprehensive special act
charter for the district, including all current legislative authority granted
to the district by its several legislative enactments and any additional
authority granted by this act.”
3
4
Section 3(1), Ch. 2002-346, Laws of Fla.
See s. 3(3), Ch. 2002-346, Laws of Fla. Use of the term “also” relates
to the previous sentence in subsection (3) directing that should a newly
elected commissioner fail to make and file the required surety bond with
60 days of his or her election or appointment, a vacancy occurs which
shall be filled by the Governor.
5
6
Id.
See McKendry v. State, 641 So. 2d 45 (Fla. 1994) (specific statute
covering a particular subject area will control over a statute covering the
same and other subjects in more general terms); Rowe v. Pinellas Sports
Authority, 461 So. 2d 72 (Fla. 1984) (when a special act and a general law
conflict, the special act will prevail).
7
See Florida Association of Counties, Inc. v. Department of
Administration, Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA
1991), approved, 595 So. 2d 42 (Fla. 1992) (general rule is that in cases
of conflicting statutory provisions, latter expression will prevail over
former).
8
Section 388.111, Florida Statutes, was created by s. 2, Ch. 59-195,
Laws of Fla. (1959), and provided that “[i]n the event of a vacancy due
to any cause in any board of commissioners, the same shall be filled by
appointment by the governor for the unexpired term.” Section 388.111,
Fla. Stat., was amended by s. 3, Ch. 92-203, Laws of Fla., to direct the
Commissioner of Agriculture to make the appointment to fill vacancies on
the boards of mosquito control districts.
9
27
11-07
BIENNIAL REPORT OF THE ATTORNEY GENERAL
AGO 11-07 – April 20, 2011
TAX DEEDS – TAX CERTIFICATES – TAXATION
REDEMPTION OF TAX CERTIFICATES ISSUED AFTER
APPLICATION FOR TAX DEED, BUT PRIOR TO TAX DEED SALE
To: Mr. Daniel S. McIntyre, St. Lucie County Attorney
QUESTIONS:
1. Is a tax certificate sold to a non-governmental party
following a tax deed application, but prior to the subsequent
tax deed sale, a lien of record for purposes of disbursing overbid
monies resulting from the tax deed sale pursuant to section
197.582, Florida Statutes?
2. Should the amount necessary to redeem a tax certificate
sold under the conditions in Question One be included in the
minimum opening bid for the tax deed sale?
3. If the answer to Question Two is negative, should the Clerk
of Court use tax deed overbid monies to reimburse the purchaser
of a tax deed who subsequently redeems the tax certificate sold
after the tax deed application date but prior to the tax deed
sale?
SUMMARY:
1. A tax certificate sold to a non-governmental party following
a tax deed application, but prior to the subsequent tax deed sale,
constitutes a first lien on the property subject to disbursement
under the terms of Chapter 197, Florida Statutes. In light of the
lack of clear direction regarding such a lien, however, it may be
advisable to seek legislative clarification on the matter.
2. The amount necessary to redeem a tax certificate issued
after application for a tax deed has been made may not be
included in the minimum opening bid pursuant to section
197.502(6), Florida Statutes.
3. In light of the discussion in Question One, no response is
necessary.
The questions you pose are based upon a situation where a tax
certificate is sold after an application for a tax deed has been filed with
the tax collector. The subsequently issued tax certificate apparently
is not included in the sums that were paid by the person applying
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for the tax deed and the governing statutes do not clearly specify
how the lien created by such a certificate is to be extinguished. The
following discussion is presented in the progression from application
and purchase of a tax certificate to application for a tax deed and the
subsequent sale and distribution of the proceeds in order to address the
three interrelated questions.
Section 197.122, Florida Statutes, states that “[a]ll taxes imposed
pursuant to the State Constitution and laws of this state shall be a
first lien, superior to all other liens, on any property against which the
taxes have been assessed and shall continue in full force from January
1 of the year the taxes were levied until discharged by payment or until
barred under chapter 95.”1 Should a property owner fail to pay the tax
due on real property and such tax becomes delinquent, “on or before
June 1 or the 60th day after the date of delinquency, whichever is later,
the tax collector shall advertise once each week for 3 weeks and shall
sell tax certificates on all real property with delinquent taxes.”2
A tax certificate is and represents:
a legal document, representing unpaid delinquent real
property taxes, non ad valorem assessments, including special
assessments, interest, and related costs and charges, issued in
accordance with this chapter against a specific parcel of real
property and becoming a first lien thereon, superior to all other
liens, except as provided by s. 197.573(2). (e.s.)
Section 197.432(1), Florida Statutes, provides the framework to be
followed for the sale of tax certificates for unpaid taxes:
On the day and approximately at the time designated in the
notice of the sale, the tax collector shall commence the sale of
tax certificates on those lands on which taxes have not been
paid, and he or she shall continue the sale from day to day until
each certificate is sold to pay the taxes, interest, costs, and
charges on the parcel described in the certificate. In case there
are no bidders, the certificate shall be issued to the county. The
tax collector shall offer all certificates on the lands as they are
assessed.3
The statute further states that the lien created through the sale of a
tax certificate may not be enforced in any manner except as prescribed
in Chapter 197, Florida Statutes.4 The tax collector is directed to make
a “list of tax certificates sold” indicating the date of the sale, the number
of each certificate, the name of the owner as returned, a description of
the land within each certificate, the name of the purchaser, the interest
rate bid, and the amount for which the sale was made.5
Thus, the plain language of the statute makes a tax certificate superior
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
to all other liens, with a stated exception in section 197.573(2), Florida
Statutes, not applicable to the instant situation.6 Section 197.432(2),
Florida Statutes, however, states that “[a] lien created through the
sale of a tax certificate may not be enforced in any manner except as
prescribed in this chapter.”
Section 197.502, Florida Statutes, sets forth the requirements of
applying for a tax deed by the holder of a tax certificate:
(1) The holder of any tax certificate, other than the county, at
any time after 2 years have elapsed since April 1 of the year
of issuance of the tax certificate and before the expiration of 7
years from the date of issuance, may file the certificate and an
application for a tax deed with the tax collector of the county
where the lands described in the certificate are located. The
application may be made on the entire parcel of property or
any part thereof which is capable of being readily separated
from the whole. The tax collector shall be allowed a tax deed
application fee of $75.
(2) Any certificateholder, other than the county, who makes
application for a tax deed shall pay the tax collector at the time
of application all amounts required for redemption or purchase
of all other outstanding tax certificates, plus interest, any
omitted taxes, plus interest, any delinquent taxes, plus interest,
and current taxes, if due, covering the land.7 (e.s.)
The tax collector must then deliver to the clerk of the circuit court a
statement that payment has been made for all outstanding certificates.8
When a tax certificate holder applies for a tax deed, the statute
contemplates that all outstanding tax certificates will be redeemed
or purchased and omitted taxes, delinquent taxes, and current taxes
which are due will be paid. At such time, there would be no taxes due
and no unpaid taxes for which a tax certificate could be issued. During
the period between the application for the tax deed and the execution
of the tax deed sale, however, it is feasible that taxes may become due
and delinquent. For instance, an application for a tax deed might be
made prior to the November 1 due date of a taxable year. The taxes
become delinquent on April 1 of the following year. If the tax deed sale
for the particular piece of property does not occur before April 1 of the
subsequent year in which the taxes became due, a tax certificate could
be sold for the delinquent taxes.
Section 197.502(6), Florida Statutes, sets forth the opening bids for
a particular property subject to a tax deed sale and pertinent to your
questions, subsections (b) and (c) provide:
(b) The opening bid on an individual certificate on nonhomestead
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11-07
property shall include, in addition to the amount of money
paid to the tax collector by the certificateholder at the time of
application, the amount required to redeem the applicant’s tax
certificate and all other costs and fees paid by the applicant.
(c) The opening bid on property assessed on the latest tax roll as
homestead property shall include, in addition to the amount of
money required for an opening bid on nonhomestead property,
an amount equal to one-half of the latest assessed value of the
homestead. Payment of one-half of the assessed value of the
homestead property shall not be required if the tax certificate
to which the application relates was sold prior to January 1,
1982.9 (e.s.)
Thus, there is a statutory scheme directing the clerk of the circuit
court to include certain amounts in the opening bid for a tax deed sale.
There is no mention of taxes that have become due after the application
for the tax deed sale or of tax certificates that may have been sold after
the application for the tax deed sale being included in the opening bid
for the property. Where the Legislature has prescribed the manner in
which something is to be done, it effectively operates as a prohibition
against its being done in any other way.10 Thus, I cannot conclude that
the opening bid for a tax deed sale may contain any amounts other than
those set forth in section 197.502(6), Florida Statutes. Accordingly, the
amount of a tax certificate issued after an application for a tax deed has
been made may not be included in the minimum opening bid pursuant
to section 197.502(6), Florida Statutes.
Section 197.582, Florida Statutes, prescribes the manner in which
proceeds from a sale of a tax deed will be disbursed:
(1) If the property is purchased by any person other than
the certificateholder, the clerk shall forthwith pay to the
certificateholder all of the sums he or she has paid, including
the amount required for the redemption of the certificate or
certificates together with any and all subsequent unpaid taxes
plus the costs and expenses of the application for deed, with
interest on the total of such sums for the period running from
the month after the date of application for the deed through the
month of sale at the rate of 1.5 percent per month. The clerk
shall distribute the amount required to redeem the certificate
or certificates and the amount required for the redemption of
other tax certificates on the same land with omitted taxes and
with all costs, plus interest thereon at the rate of 1.5 percent
per month for the period running from the month after the date
of application for the deed through the month of sale, in the
same manner as he or she distributes money received for the
redemption of tax certificates owned by the county.
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(2) If the property is purchased for an amount in excess of
the statutory bid of the certificateholder, the excess shall be
paid over and disbursed by the clerk. If the property purchased
is homestead property and the statutory bid includes an
amount equal to at least one-half of the assessed value of
the homestead, that amount shall be treated as excess and
distributed in the same manner. The clerk shall distribute the
excess to the governmental units for the payment of any lien
of record held by a governmental unit against the property. In
the event the excess is not sufficient to pay all of such liens in
full, the excess shall then be paid to each governmental unit
pro rata. If, after all liens of record of the governmental units
upon the property are paid in full, there remains a balance of
undistributed funds, the balance of the purchase price shall be
retained by the clerk for the benefit of the persons described in
s. 197.522(1)(a), except those persons described in s. 197.502(4)
(h), as their interests may appear. The clerk shall mail notices
to such persons notifying them of the funds held for their
benefit. Any service charges, at the same rate as prescribed in
s. 28.24(10), and costs of mailing notices shall be paid out of the
excess balance held by the clerk. Excess proceeds shall be held
and disbursed in the same manner as unclaimed redemption
moneys in s. 197.473. In the event excess proceeds are not
sufficient to cover the service charges and mailing costs, the
clerk shall receive the total amount of excess proceeds as a
service charge. (e.s.)
This statutory language recognizes the existence of “other tax
certificates” in addition to the ones purchased by the certificateholder
and directs the clerk to distribute such amounts in the same manner
as he or she would for county owned tax certificates. The “other tax
certificates,” however, are “other certificates on the same land with
omitted taxes” which would appear to apply to tax certificates held by
the county. When there are no bidders on the sale of a tax certificate,
the certificate is issued to the county which is not required, as private
individuals, to pay the taxes in order to receive the certificate.11 Such
taxes become “omitted taxes” which must be added to the required
minimum bid.12 Thus, while there is mention of “other tax certificates”
in the disbursement of tax deed sale proceeds, it is not clear that the
term would apply to a tax certificate issued after the application for the
tax deed has been made.
This office has recognized under a predecessor statute to section
197.582, Florida Statutes (section 194.22, Florida Statutes), that
outstanding tax certificates held by persons other than a county or
municipality should be treated in the same manner as tax liens held
by a county or municipality.13 The opinion observed that the purchaser
of a tax lien or certificate obtains the tax lien of the county and “holds
the same in that capacity.” In Attorney General Opinion 62-59, it was
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-07
posited that such a tax certificate or lien is on parity with that of other
like certificates held by the county and that privately held certificates
may be redeemed “through the clerk of the circuit court of the respective
counties wherein such lands are situated.”14 It was concluded that the
distribution of the proceeds of a tax deed sale is, in effect, a redemption
of the tax liens as the proceeds will allow.
While the statutes have been amended and renumbered, there would
appear to be no change which would preclude the application of the
same rationale set forth in the 1962 opinion. I would note that Rule
12D-13.065, Florida Administrative Code, governing the disbursement
of proceeds from a tax deed sale, states:
(2) If the property is purchased for an amount in excess of the
minimum bid of the tax deed applicant, the excess shall be
distributed to governmental units for the payment of any lien
of record held by a governmental unit against the property. If
the excess is not sufficient to pay all of such liens in full, then
the governmental units shall be paid the excess on a pro rata
basis. Liens of governmental units not satisfied in full shall
survive the issuance of the tax deed.15
(3) Any remaining funds held by the clerk shall be distributed
to those persons described in Section 197.502(4), F.S., except
persons listed in Section 197.502(4)(h), F.S., as their interests
may appear. Therefore, the distribution scheme must observe
the priorities of recordation of the liens or interests in the
public records of the County. The excess funds must be used
to satisfy in full to the extent possible each senior mortgage
or lien in the property before distribution of any funds to any
junior mortgage or lien. Any valid lien in the property is entitled
to payment before any payment is made to the titleholder of
record. (e.s.)
The rule further provides for the clerk to send notices to the persons
listed in section 197.502(4), Florida Statutes, which, in pertinent part,
alerts lienholders that funds derived from the sale will be used to
satisfy in full, to the extent possible, each senior mortgage or lien on the
property before distribution of any funds to any junior mortgage or lien.
While the statutory scheme today recognizes that any person may
redeem a tax certificate after the certificate is issued, but before a tax
deed sale, in the situation you have posed, the tax deed sale would not
appear to cover the tax certificate which is issued after the application
for the tax deed has been made. There is no provision in the statutes or
attendant administrative rules which specifically addresses the inclusion
of such a tax certificate in the minimum bid required for the sale of a tax
deed or the redemption of a subsequently issued tax certificate from the
proceeds of such a sale. The existence of an outstanding tax certificate
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which was not included in the sale, however, is not extinguished by the
tax deed sale and apparently operates as a first lien after the proceeds
of the tax deed sale have been disbursed pursuant to the statute.
As such, it would appear that any excess or overbid funds derived
from the sale of the tax deed may be used to initially extinguish any
governmental held liens, then as a priority lienholder, any privately
held tax certificates of record.16 It may be advisable for the purchaser of
a tax deed to determine whether there are outstanding tax certificates
on the purchased property and to redeem such certificates in order to
obtain clear ownership of the property.17
As noted above, however, it does not appear that the Legislature
contemplated that the situation you have posed would occur. It may
be advisable, therefore, to seek legislative clarification of this matter.
See also Rule 12D-13.011, Fla. Admin. C., reiterating that on January
1 of each year, all taxes levied pursuant to the constitution and laws
of this state become a first lien on the taxable property, superior to all
other liens on the property and continuing in full force and effect until
discharged by payment or until barred by Ch. 95 or 197, Fla. Stat.
1
2
Section 197.402(3), Fla. Stat.
See also Rule 12D-13.045, Fla. Admin. C., providing direction for the
sale of tax certificates for unpaid taxes.
3
4
Section 197.432(2), Fla. Stat.
5
See s. 197.432(8), Fla. Stat.
6
Section 197.573(2), Fla. Stat., provides:
This section shall apply to the usual restrictions and covenants
limiting the use of property; the type, character and location of
buildings; covenants against nuisances and what the former
parties deemed to be undesirable conditions, in, upon, and about
the property; and other similar restrictions and covenants; but
this section shall not protect covenants creating any debt or
lien against or upon the property, except one providing for
satisfaction or survival of a lien of record held by a municipal or
county governmental unit, or requiring the grantee to expend
money for any purpose, except one that may require that the
premises be kept in a sanitary or slightly condition or one to
abate nuisances or undesirable conditions.
Section 197.102(2), Fla. Stat., defines “Omitted taxes” as “those taxes
which have not been extended on the tax roll against a parcel of property
after the property has been placed upon the list of lands available for
taxes pursuant to s. 197.502.” These are parcels of property on which the
county holds the tax certificate and for which there were no bidders at the
7
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11-07
tax deed sale.
8
Section 197.502(4), Fla. Stat.
Section 197.502(8), Fla. Stat., provides that taxes are not to be extended
against property listed as “lands available for taxes,” but in each year the
taxes that would have been due are treated as omitted taxes and added to
the required minimum bid for a tax deed sale. See also s. 197.542(1), Fla.
Stat., stating:
9
The amount required to redeem the tax certificate, plus the
amounts paid by the holder to the clerk of the circuit court in
charges for costs of sale, redemption of other tax certificates on
the same lands, and all other costs to the applicant for tax deed,
plus interest thereon at the rate of 1.5 percent per month for
the period running from the month after the date of application
for the deed through the month of sale and costs incurred for
the service of notice provided for in s. 197.522(2), shall be
considered the bid of the certificateholder for the property.
10
See Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle
Hotel, 56 So. 2d 341, 342 (Fla. 1952); and Thayer v. State, 335 So. 2d 815,
817 (Fla. 1976).
11
See s. 197.432, Fla. Stat.
12
See s. 197.502(8), Fla. Stat.
13
See Op Att’y Gen. Fla. 62-59 (1962).
14
Section 194.01, Fla. Stat. (1961).
See s. 197.552, Fla. Stat., stating in pertinent part that “a lien of record
held by a municipal or county governmental unit, special district, or
community development district, when such lien is not satisfied as of the
disbursement of proceeds of sale under the provisions of s. 197.582, shall
survive the issuance of a tax deed.”
15
See Rule 12D-13.065, Fla. Admin. C., regarding disbursement of
proceeds of a tax deed sale and providing that if the property is purchased
for an amount in excess of the minimum bid of the tax deed applicant, the
excess is to be distributed first to pay governmental held liens of record
and then to those persons described in s. 197.502(4), Fla. Stat., as their
interests may appear; the distribution scheme must observe the priorities
of recordation of the liens or interests in the public records of the county,
with excess funds used to satisfy in full to the extent possible each senior
mortgage or lien on the property before distribution of any funds to any
junior mortgage or lien. Any valid lien on the property is entitled to
payment before any payment is made to the titleholder of record.
16
See Rule 12D-13.051, Fla. Admin. C., setting forth the rules governing
redemption, purchase, or transfer of tax certificates; the term “redemption”
17
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refers to the procedure by which the legal titleholder of property, or
someone acting on behalf of the legal titleholder, pays to the tax collector
the amount required to cancel and invalidate a tax certificate or portion
thereof (as allowed by these rules) which is otherwise valid.
AGO 11-08 – April 20, 2011
SEARCH AND SEIZURE – TRUANTS – MINORS –
RUNAWAYS – LAW ENFORCEMENT OFFICERS –
PAT-DOWN – REASONABLE SUSPICION –
TRANSPORTATION
AUTHORITY OF LAW ENFORCEMENT OFFICER TO CONDUCT
PAT-DOWN OF TRUANT IN ABSENCE OF REASONABLE
SUSPICION OF PRESENCE OF WEAPON PRIOR TO
TRANSPORTING
To: Mr. Donald P. Gibson, Legal Advisor, St. Petersburg Police
Department
QUESTION:
Is it lawful for a law enforcement officer to conduct a
pat-down for weapons for officer safety purposes, without
reasonable suspicion said person is armed, prior to transporting
a child who is not arrested, but is otherwise lawfully detained
and involuntarily being transported pursuant to section 984.13,
Florida Statutes?1
SUMMARY:
Based on the increased threat to officer safety involved in
transporting offenders in a patrol vehicle, a law enforcement
officer who has taken a minor into custody pursuant to section
984.13, Florida Statutes, and is transporting that minor may
perform a limited frisk or pat-down for weapons before placing
the minor in a law enforcement vehicle in order to ensure
that the minor possesses no weapons or other dangerous
instrumentalities.
According to your letter, there are occasions when it is incumbent upon
an officer to transport an individual, usually a juvenile, in the officer’s
vehicle, for reasons unrelated to a crime or a criminal investigation.
Your examples include individuals “going involuntarily” such as
truants or runaways. You ask whether a law enforcement officer, who
must transport a truant or run-away minor pursuant to Florida law, is
authorized to conduct a pat-down for weapons for officer safety reasons
before placing the minor in the patrol car.
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11-08
The Fourth Amendment to the United States Constitution, made
applicable to the states through the due process clause of the Fourteenth
Amendment,2 guarantees to all persons the right to be secure from
unreasonable searches and seizures. Further, the Florida Constitution
provides protection from unreasonable searches and seizures in Article I,
section 12, which parallels those protections in the federal constitution:
The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and
seizures, and against the unreasonable interception of private
communications by any means, shall not be violated. No
warrant shall be issued except upon probable cause, supported
by affidavit, particularly describing the place or places to be
searched, the person or persons, thing or things to be seized, the
communication to be intercepted, and the nature of evidence
to be obtained. This right shall be construed in conformity
with the 4th Amendment to the United States Constitution,
as interpreted by the United States Supreme Court. Articles
or information obtained in violation of this right shall not be
admissible in evidence if such articles or information would
be inadmissible under decisions of the United States Supreme
Court construing the 4th Amendment to the United States
Constitution.3
The basis for the proscriptions in the Fourth Amendment and, by
extension, in Article I, section 12 of the Florida Constitution, is to
impose a reasonableness standard upon the exercise of discretion by
government officials, including law enforcement officers, “to safeguard
the privacy and security of individuals against arbitrary invasions[.]”4
Thus, the courts, in judging the permissibility of a particular law
enforcement practice, will balance its intrusion on the individual’s
Fourth Amendment interests against its promotion of legitimate
governmental interests.5
Florida’s statute on truancy, which provides generally for children in
need of services, is section 984.13, Florida Statutes. Under the statute,
a law enforcement officer is directed to take into custody and transport a
child believed to be truant or who has run away or voluntarily requests
certain services. As provided in this statute, a child may be taken into
custody:
(a) By a law enforcement officer when the officer has reasonable
grounds to believe that the child has run away from his or her
parents, guardian, or other legal custodian.
(b) By a law enforcement officer when the officer has
reasonable grounds to believe that the child is absent from
school without authorization or is suspended or expelled and
is not in the presence of his or her parent or legal guardian, for
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the purpose of delivering the child without unreasonable delay
to the appropriate school system site. . . .
*
*
*
(d) By a law enforcement officer when the child voluntarily
agrees to or requests services pursuant to this chapter or
placement in a shelter.
An officer taking a child into custody pursuant to this provision is
charged by statute with transporting the minor and releasing the child
to a parent, guardian, legal custodian, or responsible adult relative or to
a services provider if there are reasonable grounds to believe the child
has run away, is truant, or is beyond the control of his or her parents,
guardian, or legal custodian.6 While truancy is not a crime in this state
and Florida courts have recognized that “[c]ircumstances that allow a
juvenile to be taken into custody under section 984.13 are not crimes[,]”7
the statute does empower a law enforcement officer to take a truant into
custody.
You have asked whether an officer, transporting a child pursuant to
section 984.13, Florida Statutes, is authorized to pat-down that minor
prior to placing him or her in the officer’s patrol car in the absence of
any suspicion that the child is armed. The appellate courts of this state
have addressed the authority of law enforcement officers to pat-down a
juvenile offender suspected of committing a crime prior to transporting
him or her in a patrol car.8 However, I am aware of only one recent
appellate decision in this state analyzing the validity of the search or
pat-down of a truant and that case did not directly address the validity
of the pat-down under these circumstances, but speaks to a search done
under these circumstances in the absence of a pat-down.
In L.C. v. State,9 police officers stopped L.C. believing she was truant,
confirmed that fact, and determined to transport her back to school.
Before placing her in the police car, the officers searched her pockets
and discovered drugs. At trial, the officer who conducted the search
testified that he saw nothing to indicate the presence of a weapon, but
that the search of L.C. prior to placing her in the police car was standard
police procedure.
The court reviewed the terms of section 984.13(1)(b), Florida Statutes,
noting that truancy is not a criminal offense. Because there was no
possibility of arrest in this case, the court rejected the “search incident
to arrest” exception to the requirement of a warrant for a search and
determined that the search was not valid.10 The court stated that “we
are aware of no case that stands for the proposition officers can search
an individual without having performed a pat-down simply because the
individual is being placed in a police vehicle.”11 The court recognized
that “case law consistently indicates the officer must have a reasonable
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belief his safety is in danger and must first perform a pat-down.”12
(emphasis in original)
In rejecting the validity of the full search of L.C., the court “save[d]
for another day the not inconsequential question whether [the officer]
would have had the authority to perform a pat-down of L.C.”13 Although
the L.C. court did not directly address the issue central to your inquiry,
the court referenced United States v. McCargo,14 a 2006 federal second
circuit court case, cited with approval by the court in L.C., that may
provide direction.
In McCargo, the defendant had been stopped by police officers
who intended to return him to the scene of a crime for identification
purposes. Because the officers planned to transport him in the back
of their patrol car, they frisked McCargo for weapons pursuant to a
departmental policy requiring officers “to pat down all persons before
placing them in the back of a police car to protect the officers’ safety.”15
At trial, McCargo moved to suppress the handgun discovered during
the pat-down arguing that the frisk of his person, without a reasonable
suspicion that he was armed, violated his Fourth Amendment rights.
As the federal court in McCargo noted, Terry v. Ohio16 specifically
authorized a pat-down where, following a stop, the officers believed that
the person detained was armed.17 However, the pat-down in McCargo
was performed pursuant to a policy of the police department that
required pat-downs before transporting any person in a police car to
ensure officer safety. Thus, “the question we must answer is whether a
suspect may be frisked in certain circumstances as part of a Terry stop
without officers’ relying on a reasonable suspicion that he is armed.”18
Based upon the rationale of the Terry decision, the court held that
the pat-down of McCargo did not violate his Fourth Amendment rights.
The court reiterated that Terry held that police may frisk a person if
they have a reasonable belief that the person is armed and dangerous.
As the Second Circuit continued in its analysis of Terry:
Paramount in the Court’s reasoning was that the Fourth
Amendment should not require the police to investigate
crime with their safety unduly at risk. “Certainly it would be
unreasonable to require that police officers take unnecessary
risks in the performance of their duties. . . . We cannot
blind ourselves to the need for law enforcement officers to
protect themselves and other prospective victims of violence
in situations where they may lack probable cause for an
arrest.” (citation omitted) Weighing this important interest
in police and public safety against the “brief, though far from
inconsiderable,” intrusion on an individual’s privacy (citation
omitted), the Court concluded that a frisk for weapons was
permissible.19
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The court noted that “[an] [sic] interest in officer safety has been the
justification for Terry stops from their inception”20 and that transporting
a suspect in the back of a police car as part of a Terry stop was markedly
different from a typical Terry stop involving the detention of a suspect
on the street:
The officers are less able to protect themselves from the
possibility of violence. The officers cannot depart or remove
themselves temporarily from the situation and call in additional
officers as backup. The suspect and the officers are in close
proximity to each other for the duration of the transportation;
the suspect sits behind them, a few feet away in the rear of
the car, frequently separated by only a wire grate. And the
suspect is not subject to the officers’ immediate physical control
or restraint: if the suspect turns out to be armed, the police are
at his mercy.21
The court concluded that the dangers posed to police officers in situations
where a suspect, who may be armed, is placed in the rear of a police car
are substantially different and greater than those posed in the typical
Terry stop. “The increased threat to police safety informs the balance
to be struck between the safety interests of the police and the privacy
interests of individuals.”22 The court held that permitting a limited
frisk for weapons prior to placing a suspect in a police car, pursuant
to an established policy, represented an appropriate balancing of the
interests at stake. However, the McCargo court emphasized the limited
nature of its ruling:
Our holding in this case is a narrow one. We are not holding that
the police are entitled to pat down a person, absent reasonable
suspicion that he is armed, simply because they have stopped
that person pursuant to a lawful Terry stop. However, in cases
where the police may lawfully transport a suspect to the scene
of the crime in the rear of a police car, the police may carry
out a departmental policy, imposed for reasons of officer safety,
by patting down that person. Because the police must have
a legitimate law-enforcement reason to transport a suspect, we
see little danger that policies such as these might be used as a
pretext for a suspicionless frisk.23 (e.s.)
Thus, based largely on the language in Terry concerning officer safety,
the McCargo court approved the limited frisk of the suspect prior to
placing him in the back of the police car pursuant to a departmental
policy.
The reasoning of McCargo and its application of the Fourth
Amendment principles is highly instructive in answering your inquiry.
Though truancy and the other custodial offenses identified in section
984.13, Florida Statutes, are not crimes in Florida, these are offenses
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11-08
for which the Legislature authorizes a law enforcement officer to take
the offender into custody and transport and deliver that individual to
designated persons or sites.24 Because section 984.13, Florida Statutes,
authorizes the officer to transport the child after the officer’s inquiry
has established that section 984.13, Florida Statutes, is implicated,
there would appear to be justification for a protective frisk or pat-down
prior to placing the child in the police car, in order to ensure that the
child possesses no weapons or other dangerous instrumentalities.25
It is my opinion that a law enforcement officer, who has taken a
truant or other minor into custody pursuant to section 984.13, Florida
Statutes, and is transporting that minor as required by the statute, is
authorized to perform a limited frisk for weapons before placing the
minor in a police car. As was the case in McCargo, police departments
may wish to consider implementing standardized policies on limited
pat-down searches for weapons to be performed on anyone being
transported in a police vehicle including truants and other minors in
custody pursuant to section 984.13, Florida Statutes. The McCargo
court found the existence of a departmental policy important in at
least two respects: the policy both bolstered the officer safety rationale
for the pat-downs and, by requiring universal application, eliminated
selective-use concerns.
I would also note that Louisiana’s statutory truancy scheme, which
is substantially similar to Florida’s, has been judicially construed to
support pat-down searches of truant minors who must be transported. In
terms similar to those of section 984.13, Florida Statutes, the Louisiana
Children’s Code authorizes a law enforcement officer to “briefly detain”
any child whom the officer reasonably believes to be absent from school
during normal school hours and the officer may question the child about
his or her reasons for being absent. The code then requires that, based
on the officer’s inquiry and reasonable belief that the child is absent
without justification, “the officer may release the child to his parents
or transport the child to the appropriate administrator of the child’s
assigned school or to a receiving center designated by the parish school
board for acceptance of such children.” As is the case in Florida, the
officer, after determining that the juvenile is truant, may either release
the juvenile to his or her parents or transport him or her to school or to
a receiving center.26
In State of Louisiana In the Interest of R.D.,27 a police officer, who
knew R.D. to be a student at a local junior high school, stopped R.D. to
verify that he was truant and then determined to transport him back to
school or to his parents. The officer executed a pat-down search prior
to placing R.D. in his patrol car and discovered drugs. The appellate
court considered the validity of the pat-down in light of Louisiana’s
characterization of truancy as a non-criminal offense. The court observed
that truancy in Louisiana is not a crime, but that it is an offense that
authorizes a law enforcement officer to take a minor into custody and
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transport him. The court reasoned that at this point the juvenile “was
in full custodial detention” and was not free to go. Further, because
Louisiana’s statute authorized the officer to transport the child after
his inquiry established reasonable cause to believe the child truant, the
court found justification for a protective frisk prior to placing the child
in the police car, in order to ensure that the child had no weapons or
other dangerous instrumentalities.
Like Florida’s statute, the Louisiana Children’s Code provision does
not make the offense of truancy a crime subjecting the minor to arrest.
However, in both states’ statutes, once the officer has determined
that the minor is violating the compulsory school attendance laws, an
officer may take the minor into custody. Further, because each state’s
statutory scheme authorizes the transportation of a truant minor by the
officer after his inquiry establishes a probable violation, it would appear
reasonable to assume that Florida courts, like Louisiana’s, would
recognize the validity of a protective frisk, undertaken by the officer
prior to placing a minor in a police car for the purpose of transporting
him or her, to ensure that the minor possesses no weapons or other
dangerous instrumentalities.
In sum, it is my opinion that based on the increased threat to officer
safety involved in transporting offenders in a patrol vehicle, a law
enforcement officer who has taken a minor into custody pursuant to
section 984.13, Florida Statutes, and is transporting that minor may
perform a limited frisk or pat-down for weapons before placing the minor
in a law enforcement vehicle in order to ensure that the minor possesses
no weapons or other dangerous instrumentalities. In addition, as was
the case in McCargo, a law enforcement agency may wish to consider
adopting a departmental policy requiring the pat-down of anyone being
transported in a police vehicle to ensure officer safety, including minors
taken into custody pursuant to section 984.13, Florida Statutes.
While your question is phrased more broadly, your examples and
discussion involve juveniles suspected of being truant, runaway, or
generally in need of assistance and transportation pursuant to s. 984.13,
Fla. Stat., and my consideration and response will be limited to the
factual premise of minors taken into custody pursuant to s. 984.13, Fla.
Stat., who must be transported pursuant to that section.
1
Mapp v. Ohio, 367 U.S. 643 (1961), rehearing denied, 368 U.S. 871
(1961).
2
Article I, s. 12, Fla. Const., was amended in 1982 by H.J.R. No. 31H, adopted by the electorate at the November 1982 general election,
which provides that the right to be free from unreasonable searches and
seizures shall be construed in conformity with the 4th Amendment to the
United States Constitution and provides that illegally seized articles or
3
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
11-08
information are inadmissible if decisions of the United States Supreme
Court make such evidence inadmissible.
Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979),
citing Marshall v. Barlow’s, Inc., 436 U.S. 307, 312, 98 S.Ct. 1816, 1829
(1978), quoting Camara v. Municipal Court, 387, U.S. 523, 528, 87 S.Ct.
1727, 1730, 18 L. Ed. 2d 930 (1967).
4
Id. at 654. See Hiibel v. Sixth Judicial Dist. Court of Nevada,
542 U.S. 177, 187- 188, 124 S.Ct. 2451, 159 L. Ed. 2d 292 (2004); see
also United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151
L. Ed. 2d 497(2001) (“The touchstone of the Fourth Amendment is
reasonableness. . . .”).
5
6
Section 984.13(2)(a), Fla. Stat.
See A.B.S. v. State, — So. 3d —, 2010 WL 5381757 (Fla. 2d DCA
2010); L.C. v. State, 23 So. 3d 1215 (Fla. 3d DCA 2009); C.G. v. State,
689 So. 2d 1246, 1247 (Fla. 4th DCA 1997); see also Kazanjian v. School
Board of Palm Beach County, 967 So. 2d 259, 263 (Fla. 4th DCA 2007)
(stating that the primary purpose of Florida’s truancy laws is to promote
academic success); J.M.J. v. State, 389 So. 2d 1208, 1210 (Fla. 1st DCA
1980) (“It is apparent that the legislature, in deliberate wisdom, chose to
classify . . . habitual truants only as dependent children, providing the
court with a flexible range of placement options to meet the child’s need
for supervision.”); 78A C.J.S. Schools and Districts s. 1028 (2009) (“An
‘arrest’ by an officer under a truancy statute is a severely limited type of
arrest, the sole purpose of which is to quickly place the minor in a school
setting, and the arresting officer may not use the truancy arrest as a
pretext for investigating criminal matters.”).
7
Compare A.J.M. v. State, 746 So. 2d 1222 (Fla. 3d DCA 1999) and
T.L.M. v. State, 371 So. 2d 688 (Fla. 1st DCA 1979), involving criminal
juvenile defendants who were subjected to searches or pat-downs incident
to arrest and concluding that a police officer may validly pat-down a
juvenile criminal offender prior to transporting him or her.
8
9
23 So. 3d 1215 (Fla. 3d DCA 2009).
Cf. State v. Mejia, 579 So. 2d 766 (Fla. 3d DCA 1991) (finding a search
of a person incident to arrest as a recognized exception to the search
warrant requirement). Compare E.P. v. State, 997 So. 2d 1240 (Fla. 3d
DCA 2008), which was cited by the court in L.C. and in which the court
found that “no error has been demonstrated in the denial of a motion to
suppress drug paraphernalia found on the juvenile’s person after a pat
down which followed a Terry stop justified under section 984.13, Florida
Statutes (2007) . . . and justifiably preceded placing him in the police car
for the purpose of taking him to school as the statute requires.”
10
Citing Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 142 L. Ed.
2d 492 (1998) (recognizing the concern for officer safety as a justification
11
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
for additional “minimal” intrusion of ordering driver and passengers out
of the car where officer stopped motorist for speeding and issued him a
citation rather than arrest him, but stating greater intrusion of full fieldtype search not justified).
See Ybarra v. Illinois, 444 U.S. 85, 93, 100 S.Ct. 338, 62 L.Ed.2d 238
(1979) stating that a law enforcement officer “for his own protection
and safety, may conduct a patdown to find weapons that he reasonably
believes or suspects are then in the possession of the person he has
accosted.” And see A.B.S. v. State, — So. 3d —, 2010 WL 5381757 (Fla. 2d
DCA 2010) (involving a runaway pursuant to section 984.13, Fla. Stat.,
and responding to the officer’s admission that he searched A.B.S. solely
because it was his policy to search people before transporting them in
his cruiser with a statement from L.C. that “we are aware of no case
that stands for the proposition officers can search an individual without
having performed a pat-down simply because the individual is being
placed in a police vehicle”).
12
But see E.P. v. State, 997 So. 2d 1240 (Fla. 3d DCA 2008), an earlier
Third District case that was cited by the court in L.C., but that the court
apparently did not consider dispositive of the question. In E.P., the court
found that “no error has been demonstrated in the denial of a motion to
suppress drug paraphernalia found on the juvenile’s person after a pat
down which followed a Terry stop justified under section 984.13, Florida
Statutes (2007) . . . and justifiably preceded placing him in the police car
for the purpose of taking him to school as the statute requires.”
13
14
464 F.3d 192 (N.Y. 2d Cir. 2006).
15
Id. at 196.
16
392 U.S. 1, 20, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968).
17
Id. at 27.
18
Supra n.19 at 199.
19
Id. at 200.
20
Id.
21
Id.
22
Supra n.23 at 201.
23
Id. at 202.
And see ss. 1002.20(2)(a) and 1003.21, Fla. Stat., which provide for
compulsory school attendance.
24
Cf. E.P. v. State, 997 So. 2d 1240 (Fla. 3d DCA 2008) (involving denial
of a motion to suppress drug paraphernalia found on the juvenile’s person
25
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11-09
“after a pat down which followed a Terry stop justified under section
984.13, Florida Statutes (2007) . . . and justifiably preceded placing him
in the police car for the purpose of taking him to school as the statute
requires”).
26
LSA-Ch.C. Art 733.1 (Louisiana Children’s Code Article 733.1).
27
749 So. 2d 802 (La. 5th Cir. 1999).
AGO 11-09 – June 16, 2011
PROPERTY APPRAISER – TAXATION – AD VALOREM
TAXATION – REAL PROPERTY – TRUSTS – DEEDS –
“COMMON LAW PURE TRUST” – “LAND PATENT”
WHETHER PROPERTY APPRAISER MUST REMOVE PRIVATE
REAL PROPERTY FROM AD VALOREM TAX ROLLS IF IT HAS
BEEN TRANSFERRED INTO A “COMMON LAW PURE TRUST”
OR IS SUBJECT OF A “LAND PATENT”
To: Mr. Loren E. Levy, Attorney for Mr. C. Raymond McIntyre,
Highlands County Property Appraiser
QUESTIONS:
1. Whether privately-owned property should be removed from
the tax rolls and no longer subjected to ad valorem taxation
because the owner has recorded a Declaration of Land Patent?
2. Whether privately-owned property should be removed from
the tax rolls and no longer subjected to ad valorem taxation
because the owner has transferred such property into a Common
Law Pure Trust?
SUMMARY:
1. Florida law does not provide an exemption from ad valorem
taxation for privately-owned property which is the subject of a
recorded Declaration of Land Patent.
2. No provision of Florida law provides an exemption from
ad valorem taxation for privately-owned property transferred
by the owner of such property into a Common Law Pure Trust.
According to your letter, the Highlands County Property Appraiser
has received several assertions from different property owners claiming
that his office lacks the legal authority to assess certain parcels of real
property located in Highlands County. A number of property owners
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have recorded “Declaration of Land Patent” notices in the public records.
Another property owner has placed its property into a “Common Law
Pure Trust.” In each of these circumstances, the property owners
assert that their action requires the property appraiser to remove the
parcels from the assessment roll because they are no longer subject to
ad valorem taxation. You have requested assistance from this office
regarding the property appraiser’s duties and responsibility in this
regard. While this office has no authority to resolve mixed questions
of law and fact and cannot, therefore, comment specifically on the facts
of these cases, I offer the following general legal analysis to assist you.
All property in Florida is subject to taxation unless expressly
exempted.1 The specification of permissible exemptions to ad valorem
taxation in the Florida Constitution excludes any other exemptions.2
Implementing these constitutional directives is section 196.001, Florida
Statutes, entitled “Property subject to taxation,” which provides:
Unless expressly exempted from taxation, the following
property shall be subject to taxation in the manner provided
by law:
(1) All real and personal property in this state and all personal
property belonging to persons residing in this state; and
(2) All leasehold interests in property of the United States, of
the state, or any political subdivision, municipality, agency,
authority, or other public body corporate of the state.
In claiming an exemption from taxation, the burden is on the claimant
to show clearly any entitlement to tax exemption.3 The rule is that all
property is subject to taxation unless expressly exempted and such
exemptions are strictly construed against the party claiming them.4
Neither the Declaration of Land Patent nor the Common Law
Pure Trust documents included with your letter contain any citation
to a Florida statutory or constitutional exemption upon which these
claimants base an exemption of their property from ad valorem taxation.
QUESTION 1.
The term “land patent” is defined as “[a]n instrument by which the
government conveys a grant of public land to a private person.” 5 A patent
is a government conveyance transferring title to portions of the public
domain. A “patent” is the conveyance by which the federal government
passes its title to portions of the public domain.6 It is generally the case
that a federal land patent conveys fee simple ownership to the patentee7
and serves in the same capacity as a deed.8
You advise that the parcel referenced in the declaration attached to
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11-09
the purported “land patent” is located in a residential subdivision in
Highlands County known as Placid Lakes. The property was purchased
from a private construction company in 2004 by the current owners
and the lot is improved with a residential home built in 2004. The
residential subdivision in which the property is located was first platted
in Highlands County in 1958 and the final plat was recorded in 1970.
Information you have supplied indicates that this property has been
held in private hands for nearly 100 years. The transfer of this land
into private hands occurred nearly a century ago and at that time these
lands ceased to be public and became private lands subject to taxation
by the state, adverse possession, or assignment of interest.9
Self-prepared land patent documents do not affect title to property10
and would not render the property described therein exempt from state
ad valorem taxes. I find no authority for an individual to “patent”
land to himself or herself. Further, a patent is not an exemption. The
mere statement by a private owner that real property is subject to a
“Declaration of Land Patent” and the recording of such a statement is
not enough to invest that property with any of the indicia of federal land
patent.11
A 1969 Florida title dispute case addressed the nature of federal land
patents and advised that the issuance of a land patent by the United
States is in the nature of a quitclaim deed. In Whaley v. Wotring,12 a
patentee’s heirs were precluded from asserting any claim they might
have had under an 1897 land patent, since it appeared that the property
had been the subject of private transactions based on a 1908 deed in the
plaintiffs’ chain of title. As the court stated:
Public lands cease to be public and become private lands after
they have been entered at a land office and a certificate of entry
or patent certificate is issued. At that point such lands are
subject to taxation by the state, subject to adverse possession,
or assignment of interest. . . . The patent is in the nature of
a quitclaim, passing whatever interest the United States
possessed in the premises.13
Thus, a federal land patent issued to a private party by the federal
government acts as a quitclaim by the government of its interest in that
property and passes that property into private hands where it is subject
to taxation and alienation.
Recent out-of-state cases have considered the tax consequences of a
“Declaration of Land Patent” in light of concerns that this is a method
of tax avoidance and a possible foreclosure fraud scheme. In Taylor
v. Davis,14 the State Tax Commission of Missouri was presented with
an appeal to determine whether the subject property was exempt from
taxation under the Missouri statutes and constitution. The property
owner presented a number of documents upon which he based his claim
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of exemption from taxation based upon his property being in “Patent
at Law Status,” including a quitclaim deed and a declaration of land
patent. The declaration of land patent documents filed in the Missouri
case contained citations to six early legal cases which are also cited in
the Florida documents which have been presented to Mr. McIntyre. The
Missouri tax commission stated:
[A] review of those cases failed to provide any basis upon which
the exemption claim can be established. It is unnecessary to
provide a recitation of the facts of each case. None of the cases
involve a claim by a citizen to exemption from state ad valorem
taxation as is the present case. Therefore, the holdings of the
various courts in these cases are not applicable to and provide
no support for the claim advanced by Complainant.15
The court noted that no state or federal case could be found “which
stands for the proposition advanced by Mr. Taylor that his actions in
recording a Quitclaim Deed and a Declaration of Land Patent created
an exemption from ad valorem taxation under the laws of the United
States or of Missouri.” The court noted that “all land now held by
private individuals or entities, at some point in the legal history of
the land, received a Patent or a Military Warrant from the United
States government whereby the federal government divested itself of
title and granted title to some private person or entity.” Further, after
noting that a patent for land is nothing more than a quit claim deed of
the federal government conveying such interest as the United States
possessed in the land, the court stated that “[t]he recording of Mr.
Taylor’s Declaration of Land Patent and Quitclaim Deed was an act of
no consequence.” In the absence of any state constitutional or statutory
authority to grant an exemption as claimed by the taxpayer, the court
found that the claim had “no foundation in law” and it was denied.
An Illinois appellate court in Britt v. Federal Land Bank Association
of St. Louis,16 considered “land patents” signed and recorded by the
property owners which were alleged to convey or vest title superior to
that acquired by a bank in foreclosure proceedings against the property.
The court dismissed the Britt’s claims as a “compilation of disjointed
and nonsensical claims and legal conclusions totally unsupported
by citations to the record or relevant legal authority.” However, the
court considered the legal significance of “land patents” on land titles
as a potentially recurring issue. Neither party presented any state
authority on whether the filing of what was alleged to be a “land patent”
by the former mortgagors of property had any legal effect. However, the
legal sufficiency of “land patents” has been addressed by courts of other
states and federal courts and the Britt court found these instructive.17
The court noted the absence of state case law “on what appears to be
a procedure without legal foundation in Illinois” and turned to the
analysis of a land patent in a federal tax case:
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11-09
The “patent” involved here is not a grant by the United States;
it is a grant by the plaintiffs. The “patent” here is not a grant to
some other holder so as to pass title on to another party; it is a
self-serving document whereby the plaintiffs grant the patent
to themselves. This “patent” does not involve or concern “public
land;” it relates to plaintiffs’ private property. The court cannot
conceive how these federal provisions are implicated here,
and thus federal question jurisdiction is absent. Of course, the
purported ‘land patent’ in this case fails for reasons independent
of jurisdiction. As was noted before, the “land patent” attached
to plaintiffs’ various filings is a grant of a land patent from
the plaintiffs to the plaintiffs. It is, quite simply, an attempt to
improve title by saying it is better. The court cannot conceive
of a potentially more disruptive force in the world of property
law than the ability of a person to get “superior” title to land by
simply filling out a document granting himself a “land patent”
and then filing it with the recorder of deeds. Such self-serving,
gratuitous activity does not, cannot and will not be sufficient by
itself to create good title.18 (emphasis in original)
The court determined that the documents upon which the Britts relied
were legal nullities.
In this state, the assessment of property is mandated by the
Florida Constitution.19 The authority for counties, school districts,
and municipalities to levy ad valorem taxes, and the authority for
the Legislature to authorize special districts to levy ad valorem taxes,
likewise emanates from the Florida Constitution.20 The Florida
Supreme Court has stated that “[e]xemptions from taxation must be
authorized by the Constitution[.]”21 Article VII, section 3 of the Florida
Constitution delegates authority to the Florida Legislature to provide
for exemptions of property used for specific purposes. The Florida
Constitution makes no provision to exempt private property subject to
a self-prepared “Declaration of Land Patent” for ad valorem taxation.22
Such a declaration does not appear to present any constitutional or
statutory exemption from state taxes such that the Property Appraiser
may remove such property from the tax rolls.
In sum, it is my opinion that privately-owned property may not be
removed from the tax rolls for ad valorem taxation purposes based on an
owner prepared and recorded Declaration of Land Patent.
QUESTION 2.
Your second question involves real property subject to a “Common-Law
Pure Trust.” The trust claims that its property is not taxable because it
was transferred into the “Common Law Pure Trust.” According to your
letter, the Highlands County Property Appraiser has not been provided
the instruments of the trust. This office is not authorized to review
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the terms of trust documents to determine their validity and none have
been provided for our review. However, the following general comments
are offered to assist the Property Appraiser in determining whether to
remove real property subject to a “Common Law Pure Trust” from the
tax rolls.
As discussed in Question One above, the Florida Constitution and
state statutes provide that all property in Florida is subject to taxation
unless it has been expressly exempted.23 Further, under Florida law,
property taxes are levied against the realty itself and not against the
property owner.24
It appears that the basis upon which the exemption from taxation for
Common Law Pure Trust property is asserted is Article I, section 10 of
the United States Constitution.25 This provision states that “No State
shall . . . pass any . . . Law impairing the Obligation of Contracts[.]” I
understand the premise of the “Common Law Pure Trust” to be that
this federal constitutional provision should be read to provide that any
contract is absolutely unassailable and that these contracts (trusts)
cannot be challenged in any state or federal court or regulated by
the laws of any state because the trust is guaranteed by the United
States Constitution. No contract contrary to public policy, however, is
protected by Article I, section 10 of the United States Constitution.26
These arrangements, variously described as “family trusts,” “ABC
trusts,” “constitutional trusts”, “contract trusts”, “family estate trusts,”
“sovereign trusts,” and, as discussed above “pure trusts,” have been
determined to be “a time-worn tool of tax avoidance, the legitimacy
of which has been repeatedly and overwhelmingly rejected in every
context that the courts have considered these arrangements.”27 While
I am aware of no Florida court cases discussing the ad valorem tax
consequences of property held in a “Common Law Pure Trust,” a United
States Tax Court reviewed several “Common Law Pure Trusts” and
determined that they were shams lacking economic or legal substance
and were to be disregarded for Federal income tax purposes.28 The court
then concluded that the net income of the business interests purportedly
made the subject of the trust were properly taxable to the taxpayers.29
In light of the absence of any exemption for “Common Law Pure
Trusts” contained in the Florida Constitution or Florida Statutes, it
is my opinion that the Highlands County Property Appraiser may not
remove privately-owned property from the tax rolls and exempt that
property from ad valorem taxation based on the owner of such property
transferring it into a “Common Law Pure Trust.”
See Art. VII, ss. 3 and 4, Fla. Const.; s. 196.001, Fla. Stat.; Colding v.
Herzog, 467 So. 2d 980 (Fla. 1985).
1
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11-09
See Art. VII, s. 3, Fla. Const.; Sebring Airport Authority v. McIntyre,
718 So. 2d 296 (Fla. 2d DCA 1998), affirmed, 783 So. 2d 238 (Fla. 2001).
2
Volusia County v. Daytona Beach Racing and Recreational Facilities
District, 341 So. 2d 498 at 501(Fla. 1976), appeal dismissed, 98 S.Ct. 32,
434 U.S. 804, 54 L. Ed. 2d 61 (1977).
3
See State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So. 2d 381
(Fla. 1958), Volusia County v. Daytona Beach Racing and Recreational
Facilities District, 341 So. 2d 498 (1976), appeal dismissed 98 S.Ct. 32,
434 U.S. 804, 54 L. Ed. 2d 61 (1977); Williams v. Jones, 326 So. 2d 425
(1975), appeal dismissed, 97 S.Ct 34, 429 U.S. 803, 50 L. Ed. 2d 63 (1976).
4
5
“Land Patent,” Black’s Law Dictionary (8th ed. 2004), p. 1156.
U.S. v. Shumway, 199 F.3d 1093 (9th Cir. 1999). 73B C.J.S. Public
Lands s. 199.
6
In re Johnson, 61 B.R. 858 (Bankr. D. S.D. 1986), Murphy v. Burch, 46
Cal. 4th 157, 92 Cal. Rptr. 3d 381, 205 P.3d 289 (2009).
7
8
In re Mauk, 56 B.R. 445 (Bankr. N.D. Ohio 1985).
And see Robberts v. Northville Township, 22 Fed. Appx. 527, 528, 2001
WL 1450817 (C.A.6 (Mich.) 2001) (once federal land is sold to a private
person the land is subject to ad valorem property taxation as part of the
general mass of property in the state), citing Oklahoma Tax Comm’n v.
Texas Co., 336 U.S. 342, 353, 69 S.Ct. 561, 93 L.Ed. 721 (1949); Oneida
Indian Nation v. County of Oneida, 414 U.S. 661, 676-77, 94 S.Ct. 772, 39
L. Ed. 2d 73 (1974); Irwin v. Wright, 258 U.S. 219, 228-29, 42 S.Ct. 293, 66
L.Ed. 573 (1922); Lummi Indian Tribe v. Whatcom County, Washington, 5
F.3d 1355, 1357 (9th Cir. 1993).
9
10
Hilgeford v. Peoples Bank, 607 F. Supp. 536 (N.D. Ind. 1985).
It appears that the federal statute authorizing land patents was
repealed in 1976. See Act of Oct. 21, 1976, Pub. L. No 94-579, Title VII, s.
702.
11
12
225 So. 2d 177 (Fla 1st DCA 1969).
13
Whaley at p. 180-181.
14
http://stc.mo.gov/2008/Taylor07-62532.htm (March 4, 2008).
The cases cited and discussed in the Taylor case and which are also
cited in the letter to Mr. McIntyre are: Wilcox v. Jackson, 38 U.S. 498,
1839 WL 4329 (U.S. Ill. 1839), Litchfield v. The Register and Receiver,
76 U.S. 575, 1869 WL 11460 (U.S. Iowa1869), Wineman v. Fastrell, 54
F. 819, 4 C.C.A. 596 (C.A. 5th 1893), Cage v. Danks, 13 La. Ann. 128,
1858 WL 5069 (La. 1858), United States v. Steenerson, 50 F. 504 (C.A. 8th
1892); Jenkins v. Gibson, 3 La. Ann. 203, 1848 WL 3756 (La. 1848).
15
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505 N.E. 2d 387 (Ill. App. 2d Dist. 1987).
See Hilgeford v. Peoples Bank, 776 F.2d 176 (C.A. 7th Ind.1985);
Hilgeford v. Peoples Bank, 607 F.Supp. 536 (N.D. Ind. 1985); Nixon
v. Phillipoff, 615 F.Supp. 890 (N.D. Ind. 1985); Federal Land Bank v.
Gefroh, 390 N.W. 2d 46 (N.D. 1986); Timm v. State Bank, 374 N.W. 2d
588 (Minn. App. 1985); Wisconsin v. Glick 782, F.2d 670 (C.A. 7th Wis.
1986).
17
18
Hilgeford v. Peoples Bank, 607 F.Supp. 536 (N.D. Ind. 1985).
19
See Art. VII, s. 4, Fla. Const., and s. 192.011, Fla. Stat.
20
See Art. VII, s. 9, Fla. Const.
Dade County v. Pan American World Airways, Inc., 275 So. 2d 505, 516
(Fla. 1973).
21
See “taxpayer advisement” from John Felton, Florida Department of
Revenue, to William Rudge, dated Jan. 9, 1997, stating that privately
owned property which is the subject of a declaration of land patent is
subject to ad valorem taxation.
22
See Art. VII, ss. 3(a) and 10(c), Fla. Const.; Volusia County v. Daytona
Beach Racing and Recreational Facilities Dist., 341 So. 2d 498 (Fla. 1976),
Colding v. Herzog, 467 So. 2d 980 (Fla. 1985), and s. 196.001, Fla. Stat.
23
See ss. 192.011 and 192.032, Fla. Stat. (property assessed according to
its situs).
24
See Letter from Louis E. Vient’ 3rd, for the American Constitutional
Law Society, to Mr. C. Raymond McIntyre, dated October 11, 2010.
25
See Clay v. Sun Insurance Office, Ltd., 377 U.S. 179, 84 S.Ct. 1197, 12
L. Ed. 2d 229.
26
See Itz v. U.S., 1985 WL 1310 (W.D. Tex. 1985) (“family trust”) citing
Holman v. United States, 728 F.2d 462 (10th Cir. 1984); O’Donnell v.
Commissioner, 726 F.2d 679 (11th Cir. 1984); Hanson v. Commissioner,
696 F.2d 1232 (9th Cir. 1983); Schulz v. Commissioner, 686 F.2d 490
(7th Cir. 1982); Vnuk v. Commissioner, 621 F.2d 1318 (8th Cir. 1980);
Markosian v. Commissioner, 73 T.C. 1235 (1980).
27
28
Itz, supra n.28.
29
Id.
AGO 11-10 – June 16, 2011
STATE AGENCIES—MUNICIPALITIES—FALSE CLAIMS ACT
52
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11-10
APPLICABILITY OF FLORIDA FALSE CLAIMS ACT TO
MUNICIPALITIES
To: Mr. Paul J. Nicoletti, Stuart City Attorney
QUESTION:
Does the Florida False Claims Act encompass false or
fraudulent claims presented to a municipality?1
SUMMARY:
The Florida False Claims Act does not encompass false or
fraudulent claims presented to a municipality.
The Florida False Claims Act, sections 68.081-68.09, Florida
Statutes, authorizes civil actions to be brought by individuals and
the state against persons who file or conspire to file false claims for
payment or approval with a state agency.2 The purpose of the act is
to “deter persons from knowingly causing or assisting in causing state
government to pay claims that are false or fraudulent, and to provide
remedies for obtaining treble damages and civil penalties for state
government when money is obtained from state government by reason
of a false or fraudulent claim.” 3
The Florida False Claims Act was enacted in 1994 and was patterned
after the federal False Claims Act, 31 U.S.C. 3729, et seq.4 While I am
not aware of any appellate decision addressing the applicability of the
Florida act to municipalities, I would note that this office has taken
the position in litigation that local governments are not included within
the definition of state government as defined in section 68.082, Florida
Statutes.5
Section 68.082(1)(a), Florida Statutes, defines “Agency” for purposes of
the act to mean “any official, officer, commission, board, authority, council,
committee, or department of the executive branch of state government.”
(e.s.) “State government” is defined to mean “the government of the state
or any department, division, bureau, commission, regional planning
agency, board, district, authority, agency, or other instrumentality of
the state.”6 (e.s.) You inquire whether a municipality constitutes an
instrumentality of the state within the contemplation of section 68.082,
Florida Statutes, and its definition of “state government.”
The term “instrumentality” is not defined in the act, nor is the term
defined elsewhere in the Florida Statutes.7 The operative provisions
of the act, however, refer to claims presented to an agency.8 Thus,
in determining the applicability of the act, the definition of “State
government” may not be read in isolation, but must be considered
together with the definition of “Agency.”9 That term refers to the
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“executive branch of state government,” a phrase that does not commonly
encompass local governments.10 In addition, the act itself appears to
recognize a distinction between state and local government.11
A review of the legislative history surrounding the adoption of the
Florida False Claims Act provides some insight into the legislative
intent.12 A bill to create a state false claims act was introduced during
the 1993 legislative session, but failed to pass.13 At that time, the bill
defined “Agency” to mean “any state, regional, county, local, or municipal
government entity, whether executive, judicial, or legislative, and
any department, division, bureau, commission, authority, or political
subdivision thereof or any public school, community college, or state
university.”14 Thus, the 1993 proposed legislation clearly included local
governments.15 The 1994 legislation was drafted to be more limited in
scope. As stated during one committee hearing, the 1994 bill, unlike
the 1993 bill, is limited to state agencies.16 The staff analysis for
a bill seeking to create a false claims act which contained the same
definition of “State government” as is contained in section 68.082,
Florida Statutes, only referred to actions involving executive branch
state agencies among the types of false claims actions that might be
brought under the legislation.17
This office is aware that several local governments have adopted local
false claims acts.18 Moreover, an examination of other states that have
adopted their own false claims act indicates that when local governments
are included within its terms, the statute clearly so provides.19
In light of the above, it appears that the term “instrumentality”
as used in section 68.082(1)(d), Florida Statutes, does not include a
municipality. Rather, the term would appear to refer to those entities
created by statute which are designated as instrumentalities of the
state, such as the Florida Housing Finance Corporation.20 Nor would
the term “agency” appear to include a municipality.
Accordingly, I am of the opinion that municipalities are not covered
under the definition of “agency” or “state government” in section
68.082(1), Florida Statutes, for purposes of the Florida False Claims
Act, section 68.081, et seq., Florida Statutes.
You also ask whether counties are included within the definition of
“state government” in s. 68.082(1)(d), Fla. Stat. This office, however, is
authorized to issue opinions to public officials on questions relating to
their own official duties under state law. See s. 16.01(3), Fla. Stat. In the
absence of a request from a county on this issue, this office’s comments
are directed to municipalities only.
1
2
See s. 68.082(2), Fla. Stat., which provides that any person who:
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11-10
(a) Knowingly presents or causes to be presented to an
officer or employee of an agency a false or fraudulent claim for
payment or approval;
(b) Knowingly makes, uses, or causes to be made or used a
false record or statement to get a false or fraudulent claim paid
or approved by an agency;
(c) Conspires to submit a false or fraudulent claim to an
agency or to deceive an agency for the purpose of getting a false
or fraudulent claim allowed or paid;
(d) Has possession, custody, or control of property or money
used or to be used by an agency and, intending to deceive the
agency or knowingly conceal the property, delivers or causes
to be delivered less property than the amount for which the
person receives a certificate or receipt;
(e) Is authorized to make or deliver a document certifying
receipt of property used or to be used by an agency and,
intending to deceive the agency, makes or delivers the receipt
without knowing that the information on the receipt is true;
(f) Knowingly buys or receives, as a pledge of an obligation or
a debt, public property from an officer or employee of an agency
who may not sell or pledge the property lawfully; or
(g) Knowingly makes, uses, or causes to be made or used a
false record or statement to conceal, avoid, or decrease an
obligation to pay or transmit money or property to an agency,
is liable to the state for a civil penalty of not less than $5,500
and not more than $11,000 and for treble the amount of
damages the agency sustains because of the act or omission of
that person.
And see s. 68.083(2), Fla. Stat., authorizing a person to bring a civil action
for a violation of s. 68.082, Fla. Stat., for the person and for the affected
agency. See also s. 68.082(3), Fla. Stat., authorizing treble damages
under certain circumstances.
3
Section 68.081, Fla. Stat.
See CS/HB 551, 1994 Regular Session, enacted as Ch. 94-316, Laws
of Fla. And see United States ex rel. Heater v. Holy Cross Hospital, Inc.,
510 F.Supp.2d 1027, 1033 (S.D. Fla. 2007), quoting United States ex rel.
Mueller v. Eckerd Corporation, 1998 U.S. Dist. LEXIS 23500 at *3 (M.D.
Fla. Oct. 2, 1998) (Order of United States Magistrate Judge affirmed
by 35 F.Supp.2d 896 [M.D. Fla. 1999]), stating that “[t]he Florida FCA,
is modeled after and tracks the language of, the federal False Claims
4
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Act. “See also United States v. Aggarwal, 2005 WL 6011259 at *4 (M.D.
Fla. 2005) (Plaintiff brought claims under both the federal and state
false claims acts; “[t]hese statutes are similar, with the Florida version
modeled on the Federal statute”).
The federal act has been subsequently amended in 2009; 31 U.S.C. 3732
was amended by adding subsection (c). See PL 111-21 (2009), s. 4, 123
Stat. 1625. Subsections (b) and (c) provide:
(b) Claims under state law.--The district courts shall have
jurisdiction over any action brought under the laws of any State
for the recovery of funds paid by a State or local government if
the action arises from the same transaction or occurrence as an
action brought under section 3730.
(c) Service on State or local authorities.--With respect to any
State or local government that is named as a co-plaintiff with
the United States in an action brought under subsection (b), a
seal on the action ordered by the court under section 3730(b)
shall not preclude the Government or the person bringing the
action from serving the complaint, any other pleadings, or the
written disclosure of substantially all material evidence and
information possessed by the person bringing the action on the
law enforcement authorities that are authorized under the law
of that State or local government to investigate and prosecute
such actions on behalf of such governments, except that such
seal applies to the law enforcement authorities so served to the
same extent as the seal applies to other parties in the action.
(e.s.)
The amendment, which was enacted after the adoption of the Florida act,
would not appear to affect resolution of the issue under consideration, i.e.,
whether the Florida False Claims Act encompass municipalities.
See, e.g., Notice of Voluntary Dismissal with Prejudice, State ex rel.
Sherwin v. Office Depot, Inc., Case No. 2008-CA-002309 (Fla. 2d Jud.
Cir. Leon Co. June 4, 2010) (overcharging allegations involving local
governmental entities are not within the scope and provisions of the
Florida False Claims Act).
5
6
Section 68.082(1)(d), Fla. Stat.
This office is aware that some courts have referred to municipalities as
instrumentalities of the state for purposes of the administration of local
government. See Turk v. Richard, 47 So. 2d 543 (Fla. 1950) (municipal
corporation is instrumentality of state established for more convenient
administration of local government); State v. City of Auburndale, 85 So. 2d
611 (Fla. 1956). The current Florida Statutes, however, appear to utilize
the term in a manner separate and distinct from that of “municipality”
or “political subdivision,” a term that generally includes a municipality.
See, e.g., s. 116.34(2)(a), Fla. Stat. (referring to state or by any of its
7
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11-10
departments, agencies, public bodies, or other instrumentalities or by any
of its political subdivisions) ; s. 812.035(7), Fla. Stat. (“state, including
its agencies, instrumentalities, subdivisions, or municipalities”); s.
443.036(35), Fla. Stat. (definition of “Public employer” for purposes of
unemployment compensation); s. 380.031(6), Fla. Stat. (“Governmental
agency” for purposes of the Florida Environmental Land and Water
Management Act of 1972); s. 163.3164(10), Fla. Stat. (“Governmental
agency” for purposes of the Local Government Comprehensive Planning
and Land Development Regulation Act); s. 215.58(12), Fla. Stat. (State
Bond Act); and s. 961.06(5) and (6), Fla. Stat. (claims for unlawful
incarceration).
See s. 68.082(2), Fla. Stat., set forth in n.2, supra. See also s. 68.083(2),
Fla. Stat., also cited in n.2, authorizing a person to bring a civil action
for a violation of s. 68.082, Fla. Stat., for the person and for the affected
agency. And see s. 68.082(1)(b), Fla. Stat., defining “Claim.”
8
Alonso v. State, 17 So. 3d 806, 808 (Fla. 3d DCA 2009); Acosta v. Richter,
671 So. 2d 149, 153-154 (Fla. 1996), quoting Jackson v. State, 634 So. 2d
1103, 1105 (Fla. 4th DCA 1994).
9
See, e.g., Art. IV, s. 6, Fla. Const.; s. 20.04, Fla. Stat., setting forth the
structure of the “executive branch of state government.”
10
For example, s. 68.087, Fla. Stat., in setting forth exemptions to civil
actions, provides that no court has jurisdiction over an action brought
under the act against a senior executive branch official, defined as “any
person employed in the executive branch of government holding a position
in the Senior Management Service as defined in s. 110.402[,]” or against a
local government, defined for the purposes of the subsection to mean any
county or municipality. See s. 68.087(1) and (6), Fla. Stat., respectively.
11
See generally Alexdex Corporation v. Nachon Enterprises, Inc., 641 So.
2d 858 (Fla. 1994) (legislative history of a statute may be used to clarify
ambiguity and illuminate legislative intent).
12
13
See SB 1598, 1993 Regular Session of the Florida Legislature.
14
Section 2(1)(a), SB 1598, supra.
See s. 1.01(8), Fla. Stat., generally defining the term “public body” or
“political subdivision” to include “counties, cities, towns, villages, special
tax school districts, special road and bridge districts, bridge districts, and
all other districts in this state.”
15
See Tape, House Judiciary Committee, March 8, 1994, in which
Representative Warner, stated that while he had had concerns with the
breadth of the previous year’s bill, the 1994 bill “narrowly limited it [the
False Claims Act] to state agencies. “ Representative Warner had offered
the amendment to HB 551 which created the False Claims Act. See 1994
Journal of the Florida House of Representatives, April 8, 1994, pp. 151716
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1520. Cf. Ellis v. N.G.N. of Tampa, 561 So. 2d 1209 (Fla. 2d DCA 1990),
quashed on other grounds, 586 So. 2d 1042 (Fla. 1991) (legislative intent
may be illuminated by consideration of comments made by proponents of
bill or amendment).
See House of Representatives Committee on Judiciary Bill Analysis
and Economic Impact Statement for HB 1185, dated February 22,
1994, which lists fraud against the Department of the Lottery and the
Department of Transportation as well as Medicaid fraud as the types of
cases that might be addressed by the false claims act. The bill, sponsored
by Representative Warner, contains the identical definition of “State
government” as is contained in HB 551, as amended by Representative
Warner and subsequently enacted as Ch. 94-316, Laws of Fla.
17
See, e.g., Ch. 21, Art. XV, Miami-Dade County Code of Ordinances; and
Ch. 1, Art. XIV, of the Broward County Code of Ordinances.
18
For example, Delaware defines “Government” for purposes of the
Delaware False Claims and Reporting Act to include all departments,
boards or commissions of the executive branch of the State and all political
subdivisions of the State. See Title 6, s. 1202(2), Del. Code. And see 740
Ill. Comp. Stat. 175/2; s. 17-8-402, Mont. Code. Ann.; and s. 9-1.1-2, R.I.
Gen. Laws. California, in defining claims for purposes of the California
act, refers to the state and to political subdivisions. Section 12650, Cal.
Gov. Code. And see Ch. 12, s. 5A, Mass. Ann. Laws; s. 15C.01 Subd. 2.,
Minn. Stat.; N.Y. St. Fin., Title XIII, s. 188, subsec. 1, Laws of N.Y.; s.
357.020, Nev. Rev. Stat.; s. 4-18-102, Tenn. Code; and Title 8.01, Ch. 3,
s. 8.01-216.2, Va. Code. Several states, by restricting application of their
acts to health care or Medicaid claims, are limited to the state. See, e.g.,
s. 25.5-5-304 et seq., Colo. Rev. Stat.; ss. 400.601 et. seq., Mich. Comp.
Laws; s. 63-5053 et seq., Okla. Stat.; s. 36.001 et seq., Tex. Hum. Res.
Code. Indiana expressly excludes political subdivisions. See 5-11-5.5-1,
s. 1(7), Ind. Code. Hawaii and North Carolina do not define “state” within
their acts. See s. 661-21 et seq., Haw. Rev. Stat.; and Ch. 1, Art. 51, s.
1-605 et seq., N.C. Gen. Stat., respectively.
19
New Mexico defines “state” for purposes of its Fraud Against
Taxpayers Act to mean the state of New Mexico “or any of its branches,
agencies, departments, boards, commissions, officers, institutions or
instrumentalities . . . . “ Section 44-9-2.E. N.M. Rev. Stat. This office
has been informed by the New Mexico Attorney General’s Office that it
is unaware of any interpretation that would apply the above definition to
the political subdivisions of the state.
See, e.g., s. 420.504(2), Fla. Stat., designating the Florida Housing
Finance Corporation as an instrumentality of state. And see s. 348.0002(2),
Fla. Stat., providing that an expressway authority established pursuant
to the Florida Expressway Authority Act is an instrumentality of the
state; and s. 616.251, Fla. Stat., designating the State Fair Authority as
an instrumentality of the state.
20
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AGO 11-11 – June 24, 2011
AIRPORTS – COUNTIES – SALE OF
PROPERTY – REVERTER CLAUSES – COMPETITIVE
BIDDING
ABILITY OF COUNTY TO SELL COUNTY-OWNED AIRPORT TO
PRIVATE PARTY FOR AIRPORT PURPOSES
To: Mr. Mark F. Lapp, Hendry County Attorney
QUESTIONS:
1. May Hendry County sell its county-owned airport to a
private party?
2. If so, must it sell the property using the competitive process
prescribed in Chapter 125, Florida Statutes?
SUMMARY:
1. Hendry County is authorized to sell the county-owned
airport to a private party if the county commission makes a
determination that the county no longer needs the property for
aeronautic purposes. While such a determination apparently
would trigger the reverter clause applicable to the property, it
has been represented to this office that the federal government
will consent to the transfer of the property and not enforce the
reverter clause.
2. In light of the federal government’s consent to the transfer
of the airport property and waiver of the reverter clause, the
county must follow the competitive process prescribed in section
125.35, Florida Statutes, in selling the county airport.
You state that Hendry County owns and operates Airglades Airport,
a parcel of 2,560 acres formerly owned and used by the United States
government as a military base. Pursuant to the Federal Aviation
Administration’s Airport Privatization Pilot Program, authorized under
49 United States Code section 4713, the county wishes to sell or lease
the property to a private entity for development of the airport as an
“air cargo trans-shipment center.” The program allows governmentowned airports to be sold or leased to the private sector. You indicate
that the county obtained the property from the State of Florida, which
had received it from the United States government in 1948. The deed
transferring the property to the state reflects that the land was being
conveyed for public airport purposes and contains a reverter clause
should the property cease to be used for anything other than airport
purposes without the consent of the United States government. In
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further communications with this office you have indicated that the
federal government will consent to the transfer of the airport property
to a private entity and, therefore, waive enforcement of the reverter
clause.
No comment is expressed herein regarding the terms of the original
deed to the State of Florida or the implications of federal law on the
transfer of the property.
QUESTION 1.
Pursuant to section 332.08, Florida Statutes, a county1 may lease
airport property to private parties for operation and lease or assign
to private parties a space, area, improvement, or equipment on such
airport for a limited period and for use consistent with the act.2 The
statute further authorizes a county to sell any part of such airport to
any municipal or state government or the United States for aeronautical
purposes.3 Section 332.08(4), Florida Statutes, however, speaks
specifically to the authority of a county to sell or lease airport property
“which, in the judgment of its governing body, may not be required for
aeronautic purposes[.]”
Thus, it would appear that the provisions in section 332.08, Florida
Statute, limit a county’s authority to sell part of its airport property for
aeronautical purposes only to another municipality (county), the state
government, or the United States, but imposes the requirement that the
sale of the entire airport, without regard to whether the buyer is public
or private, be conditioned upon a finding by the county’s governing body
that the airport property is no longer required for aeronautical purposes.
You have cited two previous opinions of this office to assert that the
provisions in Chapter 125, Florida Statutes, governing the disposition
of property by a county would control the sale of airport property by the
county, since pertinent provisions in Chapter 1254 were enacted later
in time than section 332.08, Florida Statutes. Both opinions, however,
consider the ability of a county to enter into a lease for the non-aviation
portion of an airport to a private developer.
In Attorney General Opinion 94-96, this office was asked whether
a county commission was authorized to grant a lease in excess of 30
years to a private party for the purpose of operating and developing the
non-airfield portion of a county airport. The opinion contrasted section
332.08(3), Florida Statutes, limiting the lease of airport property to a
period not exceeding 30 years, with section 125.35, Florida Statutes,
authorizing the lease of airport property for any period a county
commission deems appropriate when such action is in the best interest
of the county and the improved leasehold has an appraised value in
excess of $20 million. As the later in time and more specific to the lease
of airport property and facilities under specified conditions, section
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125.35, Florida Statutes, was found to authorize the county to lease
county airport property for a term determined by the commission to
be in the best interest of the county. It was concluded that pursuant
to section 125.35, Florida Statutes, the county was authorized to grant
a lease in excess of 30 years to a private party for the operation and
development of the non-airport portion of the county airport. The
opinion stressed, however, that the factors set forth in the statute must
be met, that is, the county commission must determine that such a lease
is in the best interest of the county, it must be an airport operation or
facility lease, and the improved leasehold must have an appraised value
in excess of $20 million.
Subsequently, this office was presented with the question of whether a
county could lease the non-aviation portion of an airport site to a private
developer without competitive bid. In Attorney General Opinion 99-35,
it was noted that the provisions in section 125.35, Florida Statutes, were
amended in 1999 to clarify that counties are authorized to negotiate
the lease of airport and seaport facilities.5 As the later in time and
more specific to the leasing of airport property, the provision in section
125.35, Florida Statutes, was found to control. The opinion concluded,
therefore, that counties are not required to use a competitive bidding
procedure for the lease of the county’s airport facility and that pursuant
to section 125.35, Florida Statutes, such a lease may be granted for a
term in excess of 30 years.
There is a distinction, however, between the leasing of airport
property and the sale of such property. When the Legislature in 1999
clarified local governments’ authority relating to the lease of airport
property under Chapter 125, Florida Statutes, and exempted such
leasing from the competitive bid requirements of the act, it could easily
have addressed the sale of airport property also.6 The Legislature
did not do so. This office cannot add language where the Legislature
has chosen to remain silent, nor may it extend the reach of Chapter
125, Florida Statutes, to the sale of airport property when there are
specific provisions in section 332.08, Florida Statutes, governing such
transactions.7 The conclusions in Attorney General Opinions 94-96 and
99-35 are based upon application of the rule of statutory construction
that legislation later in time controls. Such rationale may not be
applied to the sale of airport property, since the more specific provisions
relating to the sale of airport property are located in section 332.08,
Florida Statutes.8
Section 332.08, Florida Statutes, speaks specifically to the sale of
airport property and constitutes the Legislature’s direction as to the
manner in which such a sale will be accomplished.9 As noted above,
subsection (3) of the statute, authorizes the sale of airport property for
aeronautical purposes to public entities. Subsection (4) authorizes the
sale of such property when the county no longer needs the property for
aeronautical purposes, without restriction as to whether the purchaser
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is a public or private entity.
Section 332.08, Florida Statutes, was enacted prior to sections
125.35 and 125.39, Florida Statutes.10 There is no indication that the
more specific provisions in section 332.08 relating to the sale of airport
property by a county, however, were amended or repealed by the
enactment of the later statutes governing the general purchase or sale
of county property.11 The more specific terms of section 332.08, Florida
Statutes, would control over the general grant of authority to purchase
and dispose of real property in Chapter 125, Florida Statutes.
Accordingly, it is my opinion that section 332.08(4), Florida Statutes,
authorizes the county to sell its county-owned airport to a private
party when the governing body of the county has determined that
the county no longer needs the property for airport purposes. Such a
determination in this instance, however, would according to your letter
trigger the reverter clause in the original deed transferring ownership
of the property from the United States government. You have advised
this office, however, that the federal government consents to the sale
of the property to a private entity, thereby waiving operation of the
reverter clause.
QUESTION 2.
Generally, a board of county commissioners is authorized to sell or
convey any real or personal property and to lease real property to the
highest and best bidder when the board determines that it would be in
the county’s best interest.12 The statutes governing such disposition,
however, specifically exempt the lease of an airport from the competitive
bidding and best interest requirements.13
Section 125.39, Florida Statutes, further creates an exception from
the general competitive bidding provisions in Chapter 125, Florida
Statutes, governing the disposition of real and personal property as
follows:
The provisions of this law shall not be construed to cover the
sale or disposition of any land conveyed to any county for a
specific purpose and containing a reversionary clause whereby
said land shall revert to the grantor or grantors upon failure to
use said real property for such purpose.
This section originated during the 1947 Legislative Session in the
same act as the general provisions governing the sale or disposition of
property by competitive bid in section 125.35, Florida Statutes.14 The
section originally included an exemption for the sale or disposition of
lands acquired by the county for delinquent taxes.15 The portion relating
to the disposition of lands acquired for delinquent taxes was deleted in
1973, at the same time that section 197.302, Florida Statutes,16 was
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amended to cover such lands.17
The only Florida court considering the effect of section 125.39,
Florida Statutes, on the transfer of county-owned property subject to a
reversion clause found the exemption “clear on its face, and intended to
apply only in limited circumstances.”18 (e.s.) The court stated that “[a]s
long as a conveyance to the county includes a valid special purpose and
reverter clause, the competitive bidding requirements do not apply to
county dispositions.” 19
While there is no available legislative history explaining the
exemptions created in 1947 by section 125.39, Florida Statutes, the title
to the act states that it is:
AN ACT Relating to the Disposition of Real and Personal
Property Belonging to Any County in the State of Florida
Not Needed for County Purposes by the Board of County
Commissioners and Providing for the Procedure in Making
Any Sale or Lease Thereof and Limiting the Application of This
Act.20 (e.s.)
This clear intent in the title premises the exercise of the county’s
authority to dispose of real and personal property upon the fact that the
property is no longer needed for county purposes. A logical interpretation
of section 125.39, Florida Statutes, therefore, is that disposition of
property subject to a reverter clause is controlled by the reverter
clause since the property is no longer needed for county purposes, i.e.,
the particular use under which the county assumed ownership of the
property. There would be no need for competitive bidding when by
the terms of the deed the property is returned to the grantor when the
county no longer needs the property for such use. In this instance, as
discussed in Question One, the disposition of the airport property by the
county is dependent upon the county’s determination that the property
is no longer needed by the county.
You assert that since the airport property is subject to a reverter
clause, the competitive bidding requirements in section 125.35, Florida
Statutes, do not apply and the county is allowed to sell the airport
property pursuant to the general expression of a county’s authority to
sell or exchange real or personal property recognized in section 125.01(3),
Florida Statutes. In light of the discussion in Question One, this would
presume that the reverter clause is not triggered by the disposition of
the property. This office does not interpret contracts and deeds, nor
may it make a factual determination of whether the sale of the property
to a private entity constitutes the continued use of the property for a
public airport. Nevertheless, the mere presence of a reverter clause
would not appear to be sufficient to exempt the sale or disposition of
property from competitive bidding requirements in section 125.35,
Florida Statutes. The exemption in section 125.39, Florida Statutes,
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simply recognizes that property subject to a reverter clause which is
determined to be no longer needed for county purposes would revert to
the grantor. No competitive bidding would be needed or required under
such circumstances.
The courts of this state have recognized that competitive bidding
protects the public’s interest. As stated in Wester v. Belote,21 competitive
bidding laws
serve the object of protecting the public against collusive
contracts and prevent favoritism toward contractors by public
officials and tend to secure fair competition upon equal terms
to all bidders, they remove temptation on the part of public
officers to seek private gain at the taxpayers’ expense, are of
highly remedial character, and should receive a construction
always which will fully effectuate and advance their true intent
and purpose and which will avoid the likelihood of same being
circumvented, evaded, or defeated.22
The competitive bid requirements in Chapter 125, Florida Statues,
ensure that the public’s interest is protected when a county disposes of
its property. As a statute enacted to protect the public’s interest, section
125.35, Florida Statutes, should be broadly construed to effectuate the
purpose of the law and any exemption narrowly applied.23 In light of
the protections afforded by the competitive bid statutes, I am unable to
read the exemption in section 125.39, Florida Statutes, so broadly that
it would apply to an inoperative reverter clause.
Accordingly, where the federal government consents to the sale of
the county airport and waives the operation of the reverter clause, it
is my opinion that the county must comply with the competitive bid
requirements in section 125.35, Florida Statutes, in the sale of such
property.
Section 332.01(1), Fla. Stat., defines “[m]unicipality” to include “any
county, city, village, or town of this state” for purposes of Ch. 332, Fla.
Stat.; clearly, therefore, the provisions in section 332.08, Fla. Stat., would
apply to an airport owned by a county.
1
2
See s. 332.08(3), Fla. Stat.
3
Id.
Section 125.01(3), Fla. Stat., recognizes the general authority of a
county to purchase, lease, sell, or exchange real or personal property; s.
125.35, Fla. Stat., sets forth a more detailed procedure for counties to
sell and convey property by competitive bid; and s. 125.39, Fla. Stat.,
recognizes that the provisions in Ch. 125, Fla. Stat., do not cover the
sale or disposition of land conveyed to a county for a specific purpose
4
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and containing a reversionary clause whereby such land reverts to the
grantor upon failure to use the land for such purpose.
See Title to SB 1534, Ch. 99-190, Laws of Fla., stating that it is an act
relating to local government “clarifying that counties are authorized to
negotiate leases with airport and seaport facilities.”
5
See SB 1534, 1999 Regular Session, enacted as Ch. 99-190, Laws of
Fla.
6
See, e.g., Ops. Att’y Gen. Fla. 82-80 (1982) (Attorney General is not free
to add words to a statute to support a conclusion that the plain wording of
the statute does not supply); 94-09 (1994); 87-43 (1987); 86-32 (1986); and
82-20 (1982). And see Chaffee v. Miami Transfer Company, Inc., 288 So.
2d 209 (Fla. 1974) (Attorney General’s Office has no authority to supply
additional words to or modify the meaning of a duly enacted statute).
7
See McKendry v. State, 641 So. 2d 45 (Fla. 1994) (specific statute
covering a particular subject area will control over a statute covering the
same and other subjects in more general terms); Rowe v. Pinellas Sports
Authority, 461 So. 2d 72 (Fla. 1984) (when a special act and a general law
conflict, the special act will prevail).
8
See Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea
Isle Hotel, 56 So. 2d 341, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815,
817 (Fla. 1976) (legislative direction constitutes an implicit prohibition
against its being done in any other manner).
9
See s. 8, Ch. 22846, General Laws of Fla. (1945), creating s. 332.08, Fla.
Stat., and ss. 1 and 5, Ch. 23829, General Laws of Fla. (1947), respectively
creating ss. 125.35 and 125.39, Fla. Stat. See also n.4, supra.
10
See State ex rel. Quigley v. Quigley, 463 So. 2d 224 (Fla. 1985); State
v. J.R.M., 388 So. 2d 1227 (Fla. 1980). Cf. Kligfeld v. Office of Financial
Regulation, 876 So. 2d 36, 38 (Fla. 4th DCA 2004); Flo-Sun, Inc. v. Kirk,
783 So. 2d 1029 (Fla. 2001); State v. Digman, 294 So. 2d 325 (Fla. 1974),
providing that implied repeals are disfavored and will not be upheld in
cases of doubt.
11
12
See s. 125.35, Fla. Stat.
13
Section 125.35(1)(b), Fla. Stat.
See ss. 1 and 5, Ch. 23829, Gen. Laws of Fla. (1947), respectively
creating ss. 125.35 and 125.39, Fla. Stat.
14
15
Section 5, Ch. 23829, Gen. Laws of Fla. (1947), states:
The provisions of the Act shall not be construed to cover the
sale or disposition of those lands acquired by any County
for delinquent taxes and which are described in the book
designated “County Lands Acquired for Delinquent Taxes”, on
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file in the office of the Clerk of the Circuit Court of any County,
or any land conveyed to any County for a specific purpose
and containing a reversionary clause whereby said land shall
revert to the grantor or grantors upon failure to use said real
property for such purpose.
Subsequently renumbered as s. 197.592, Fla. Stat., by s. 197, Ch. 85342, Laws of Fla.
16
Section 29, Ch. 73-332, Laws of Fla., deletes the provisions relating to
lands acquired by any county for delinquent taxes from section 125.39;
s. 23, Ch. 73-332, Laws of Fla., was amended to address the method and
procedure to be used for the sale of lands acquired by any county for
delinquent taxes.
17
Rolling Oaks Homeowner’s Association, Inc. v. Dade County, 492 So. 2d
686 (Fla. 3d DCA 1986).
18
19
Id. at 690.
20
Chapter 23829, Gen. Laws of Fla. (1947).
21
138 So. 721, (Fla. 1931).
Id. at 724. See also Department of Transportation v. Groves-Watkins
Constructors, 530 So. 2d 912, 913 (Fla. 1988), stating:
22
Although not required by common law, competitive bidding
has been statutorily mandated for the protection of the public.
In addition to providing a means by which goods or services
required by public authorities may be acquired at the lowest
possible cost, Hotel China & Glassware Co. v. Board of Public
Instruction, 130 So. 2d 78, 81 (Fla. 1st DCA 1961), the system
of competitive bidding protects against collusion, favoritism,
and fraud in the award of public contracts. Liberty County [v.
Baxter’s Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982)];
Wester v. Belote, 103 Fla. 976, 981-82, 138 So. 721, 723-24
(1931).
Cf. Sarasota Citizens for Responsible Government, et al., v. City
of Sarasota, 48 So. 3d 755, 762 (Fla. 2010) (Sunshine Law, enacted in
the public interest to protect public from “closed door” politics, must be
broadly construed to effect its remedial and protective purpose); and
Florida Farm Bureau Casualty Insurance Co. v. Cox, 943 So. 2d 823,
835 (Fla. 1st DCA 2006) (statutes governing insurance contracts to be
construed to protect the public, citing Praetorians v. Fisher, 89 So. 2d 329,
333 (Fla. 1956), stating that statutes governing insurance contracts be
liberally construed to protect the public).
23
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AGO 11-12 – July 19, 2011
SPECIAL DISTRICTS – HOSPITALS – MALFEASANCE –
CHARTERS – OVERSIGHT
CHARTER OVERSIGHT DUTIES OF HOSPITAL DISTRICT’S
BOARD OF COMMISSIONERS; NON-INTERFERENCE CLAUSE
To: Mr. Samuel S. Goren, Attorney, North Broward Hospital District
QUESTIONS:
1. How are the members of the North Broward Hospital
District’s Board of Commissioners able to exercise their “charter
oversight duties,” if at all, given the “explicit segregation of
duties between the functions of operational management of the
district and oversight by the board,” as stated in the district
charter, as amended?
2. Are the board members of the North Broward Hospital
District permitted to utilize their prerogative to give direction
to or interfere with employees, officers, or agents under the
direct or indirect supervision of the district’s President/CEO for
the limited purpose of “inquiry or information” as individuals,
or must they exercise such option as a whole collegial body?
3. Since violations of the non-interference provision of
the 2007 act specifically constitute “malfeasance within the
meaning of Article IV, s. 7(a) of the Florida Constitution,” how
is this section to be enforced and what are the penalties for
violations thereof?
SUMMARY:
1. The Legislature has expressed its intent that members
of the board of commissioners refrain from operating in a
management role while also performing charter oversight
duties in what appears to be policy language in section 5(2),
Chapter 2007-299, Laws of Florida. In the directory language of
the amendment, members of the board are required to refrain
from giving direction to or interfering with employees or others
under the supervision of the President/CEO, with the exception
of inquiry and information gathering.
2. An individual member of the board of commissioners of the
North Broward Hospital District may ask questions or request
information of district employees, agents, and officers who are
supervised, directly or indirectly, by the President/CEO of the
district, but may not otherwise give direction to or interfere
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with any such employee.
3. The provisions of section 5(2) of the charter specifically
make a violation of the “non-interference” clause an occasion
of malfeasance within the meaning of Article IV, section 7(a) of
the Florida Constitution. The constitutional provision must be
read together with the statutory implementation language set
forth in Part V, Chapter 112, Florida Statutes, which sets forth
the procedure for disposition of an order of suspension by the
Governor.
The North Broward Hospital District (the “district”) is an independent
special taxing district created in 1951 by chapter 27438, Laws of Florida,
to meet the health care needs of the people of the district.1 The district
is governed by a seven member board of commissioners (the “board”)
appointed by the Governor.2 The enabling legislation for the district
and subsequent amendments were recently recodified in Chapter 2006347, Laws of Florida, which is the district’s charter. In 2007, the charter
was amended to include a “non-interference” provision and to require
that the board adopt a code of conduct and ethics.3 As provided in the
district’s bylaws:
The Board shall guide the North Broward Hospital District
and all of its facilities, common divisions and wholly owned
entities toward the efficient and effective provision of quality
health care, education and research. The powers of the Board
of Commissioners shall be employed so as to ensure that the
welfare and health of the patients and the best interests of the
hospitals and facilities of the District are at all times served.4
You have requested this office’s assistance in determining how the
board of commissioners of the North Broward Hospital District may
comply with the legislative directive expressed in section 5(2), Chapter
2007-299, Laws of Florida, which provides:
It is the finding of the Legislature that it is not in the public
interest for any member of the board of commissioners to operate
in the perceived role of management while simultaneously
exercising the charter oversight duties contemplated by creation
of this special act. It is therefore the intent of the Legislature that
the board of commissioners only exercise its oversight function
as a whole body and not through the actions of any individual
commissioner. It is also the intent of the Legislature that there
be an explicit segregation of duties between the functions of
operational management of the district and oversight by the
board of commissioners. Except for the purposes of inquiry
or information, a member of the board of commissioners shall
not give direction to or interfere with any employee, officer, or
agent under the direct or indirect supervision of the President/
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CEO. Such action shall be malfeasance within the meaning of
Art. IV, s. 7(a) of the Florida Constitution. Nothing contained
herein shall prevent a commissioner from referring a citizen
complaint to the President/CEO or to the board of commissioners
or providing information about any issue to the President/CEO
or to the board of commissioners. (e.s.)
QUESTION 1.
This office is authorized to provide legal opinions on questions of state
law; we have no authority to provide district boards or commissions
with detailed suggestions as to how they may accomplish the work of
the district for which they were appointed. As such, I must advise you
that this office cannot direct how members of the board of the North
Broward Hospital District should accomplish their duties.
Your first question relates to the scope of the oversight duties of the
North Broward Hospital District’s board of commissioners as limited
by Chapter 2007-299, Laws of Florida. The language of section 5(2),
Chapter 2007-299, Laws of Florida, which has prompted your question
appears to be language reflecting the intent of the Legislature rather
than language directing the board to perform some action:
It is the finding of the Legislature that it is not in the public
interest for any member of the board of commissioners to operate
in the perceived role of management while simultaneously
exercising the charter oversight duties contemplated by creation
of this special act. It is therefore the intent of the Legislature that
the board of commissioners only exercise its oversight function
as a whole body and not through the actions of any individual
commissioner. It is also the intent of the Legislature that there
be an explicit segregation of duties between the functions of
operational management of the district and oversight by the
board of commissioners. (e.s.)
As demonstrated above, these sentences are phrased in terms of
legislative findings and intent, but these statements do not require any
particular action by the board or provide any direction as to how such
action should be accomplished.5 The operative provision is the sentence
stating that “[e]xcept for the purposes of inquiry or information, a
member of the board of commissioners shall not give direction to or
interfere with any employee . . . .” It is through this provision that
the Legislature chose to accomplish its stated intent of separating the
management and oversight of the district.6
QUESTION 2.
Your second question requires consideration of the language of the
2007 amendment of the charter/special act which provides:
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It is . . . the intent of the Legislature that the board of
commissioners only exercise its oversight function as a
whole body and not through the actions of any individual
commissioner. . . . Except for the purposes of inquiry or
information, a member of the board of commissioners shall
not give direction to or interfere with any employee, officer, or
agent under the direct or indirect supervision of the President/
CEO.7
Concerns have been expressed that this language would restrict the
ability of individual board members to directly engage district staff
working under the supervision of the President/CEO for purposes of
inquiry or for informational purposes.
While this office recognizes that section 5(2), Chapter 2007-299,
Laws of Florida, provides that “the board of commissioners [should]
only exercise its oversight function as a whole body and not through
the actions of any individual commissioner[;]” the act also specifically
authorizes individual members of the board to give direction to district
employees within the supervision of the President/CEO for purposes of
inquiry and information seeking. As discussed more fully in my response
to Question One, the legislative intent/policy language suggesting
that the oversight function of the board should only be exercised “as
a whole body” is not expressed in terms requiring particular action by
the board. Rather, this language appears to constitute a statement
of intent by the Legislature as to the purpose and construction of the
operative provisions of the 2007 legislation that an individual member
may not direct or interfere with these employees except for inquiry and
information purposes.
The charter clearly gives individual members of the board the
authority to ask questions or request information from staff of the
district or others who may come within the supervisory authority of
the President/CEO. Members of the board may not otherwise, without
committing malfeasance, give directions to or interfere with these
employees of the district. This legislative prohibition would appear to be
directed toward the “functions of operational management” mentioned
elsewhere in section 5, Chapter 2007-299, Laws of Florida. Thus, in
order to accomplish the legislatively declared object of segregating the
oversight function from the operational management of the district,
these provisions should be read together and harmonized.8 Further,
courts are bound to ascribe reasonableness to the intention of the
Legislature and a reasoned construction to its enactments.9 Staff
analysis for the 2007 legislation appears to support this reading of the
act and states that “[a] board member that gives direction or interferes
with any employee under the supervision of the President/CEO, except
for inquiry, will have conducted malfeasance . . . .”10
Therefore, it is my opinion that an individual member of the board
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of commissioners of the North Broward Hospital District may directly
ask questions or request information of district employees, agents, and
officers who are supervised, directly or indirectly, by the President/CEO
of the district. In asking questions or seeking information, the board
members need not act as a collegial body. However, section 5, Chapter
2007-299, Laws of Florida, makes clear the Legislature’s intent that no
individual member of the board may give direction to or interfere with
any such employee outside the scope of inquiry and information seeking
without violating the charter.
QUESTION 3.
Finally, you have asked for direction in determining enforcement
options and penalties for violations of section 5(2) of the charter. The
language of the special act specifically provides that violations of this
section “shall be malfeasance within the meaning of Art. IV, s. 7(a) of
the Florida Constitution.”
Article IV, section 7 of the Florida Constitution provides for
suspensions by the Governor and filling of any vacancy created by such
a suspension:
(a) By executive order stating the grounds and filed with the
custodian of state records, the governor may suspend from office
any state officer not subject to impeachment, any officer of the
militia not in the active service of the United States, or any
county officer, for malfeasance, misfeasance, neglect of duty,
drunkenness, incompetence, permanent inability to perform
official duties, or commission of a felony, and may fill the office
by appointment for the period of suspension. The suspended
officer may at any time before removal be reinstated by the
governor.
If the officer is not reinstated by the Governor, the Senate may remove
him or her from office or reinstate the suspended official.11 The provisions
of Part V, Chapter 112, Florida Statutes, set forth procedures for the
disposition of the order of suspension by the Governor implementing the
constitutional provision12 and specifying such matters as the contents of
such a suspension order13 and the prosecution of the suspension before
the Senate.14
Moreover, Article I, section 18, Florida Constitution, provides
that “[n]o administrative agency . . . shall impose a sentence of
imprisonment, nor shall it impose any other penalty except as provided
by law.” As the court recognized in Broward County v. La Rosa,15 the
phrase “by law” contemplates an enactment of the Legislature.16 Thus,
the district, as an administrative agency,17 has no authority to prescribe
penalties for violations of its charter except those the Legislature has
adopted. Section 5, Chapter 2007-299, Laws of Florida, contains no
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other provision for penalties or enforcement for violations of the “noninterference” provision.18
In sum, it is my opinion that the provisions of section 5(2) of the
charter specifically make violation of the “non-interference” clause an
occasion of malfeasance within the meaning of Article IV, section 7(a)
of the Florida Constitution. The constitutional provision must be read
together with the statutory implementation language set forth in Part
V, Chapter 112, Florida Statutes, which provides the procedure for
disposition of an order of suspension by the Governor.
1
See s. 3, Ch. 2006-347 and s. 1, Ch. 2007-299, Laws of Fla.
See s. 3, Ch. 2006-347, Laws of Fla.; Art. I, s. 1-2, Bylaws of the North
Broward Hospital District and Broward General Medical Center, North
Broward Medical Center, Imperial Point Medical Center, Coral Springs
Medical Center.
2
This office is aware that the district’s bylaws were last revised in 1991.
See Bylaws of the North Broward Hospital District, Editor’s note, p. 37.
The board may wish to update the district’s bylaws to reflect the more
recent legislative directives considered herein and more fully delineate
the operational management duties and charter oversight duties of the
President/CEO and the board. This office has no information regarding
the situation existing in the district which gave rise to the adoption of Ch.
2007-299, Laws of Fla., which could provide guidance, but would suggest
that some investigation into the situation surrounding the amendments
could be helpful in effectuating the legislative intent expressed in the act.
See, e.g., Singleton v. Larson, 46 So. 2d 186 (Fla. 1950) (in construing a
statute, court will consider its history, evil to be corrected, intention of
Legislature, subject to be regulated, objects to be obtained and will be
guided by legislative intent); State v. Webb, 398 So. 2d 820 (Fla. 1981);
State v. Anderson, 764 So. 2d 848 (Fla. 3d DCA 2000).
3
4
Art. I, s. I-4, Bylaws supra.
See Bledsoe v. Palm Beach Soil and Water Conservation Dist., 942
F.Supp. 1439, reversed 133 F.3d 816, rehearing and suggestion for
rehearing denied, 140 F.3d 1044, certiorari denied, 119 S.Ct. 72, 525 U.S.
826, 142 L. Ed. 2d 57 (in ascertaining plain meaning of statute, court
should look not only to discrete portion of statute at issue, but to design
of statute as whole and to its object and policy).
5
Cassoutt v. Cessna Aircraft Co., 742 So. 2d 493 (Fla. 1st DCA 1999)
(When construing a statutory provision, court is guided by the rule that
the intent of the Legislature is the overriding consideration.); State, Dept.
of Revenue v. Kemper Investors Life Ins. Co., 660 So. 2d 1124 (Fla. 1st DCA
1995) (When construing statutes, primary purpose designated should
determine force and effect of words used, and no literal interpretation
6
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should be given that leads to unreasonable ridiculous conclusion or
purpose not intended by Legislature).
7
Section 5, Ch. 2007-299, Laws of Fla.
See Ideal Farms Drainage District v. Certain Lands, 19 So. 2d 234 (Fla.
1944); Forsythe v. Longboat Key Beach Erosion Control District, 604 So.
2d 452 (Fla. 1992) (all parts of a statute must be read together in order
to achieve a consistent whole); State v. Haddock, 140 So. 2d 631 (Fla. 1st
DCA 1962).
8
City of Boca Raton v. Gidman, 440 So. 2d 1277 (Fla. 1983); Wakulla
County v. Davis, 395 So. 2d 540 (Fla. 1981); City of Dania v. Hertz
Corporation; 518 So. 2d 1387 (Fla. 4th DCA 1988).
9
See House of Representatives Local Bill Staff Analysis, CS/HB 1391,
p.2, dated April 11, 2007.
10
11
Section 7(b), Art. IV, Fla. Const.
12
Section 112.40, Fla. Stat.
13
Section 112.41, Fla. Stat.
14
Section 112.43, Fla. Stat.
484 So. 2d 1374 (Fla. 4th DCA 1986). And see Broward County v.
Plantation Imports, Inc., infra, in which the court struck down a provision
of the Broward County Consumer Protection Code which authorized the
county Consumer Protection Board to determine if there were violations
of the Code and impose civil penalties for violation of any cease and desist
orders. The court held the provision authorizing an administrative agency
to impose a penalty, without such authority being provided by legislative
act, was unconstitutional.
15
See Grapeland Heights Civic Association v. City of Miami, 267 So. 2d
321, 324 (Fla. 1972); Broward County v. Plantation Imports, Inc., 419 So.
2d 1145 (Fla. 4th DCA 1982); Ison v. Zimmerman, 372 So. 2d 431 (Fla.
1979); Op. Att’y Gen. Fla. 79-109 (1979).
16
See, e.g., Ops. Att’y Gen. Fla. 09-53 (2009) (mosquito control district
is administrative agency for purposes of Art. I, s. 18, Fla. Const.); 09-29
(2009) (county precluded from adopting ordinance imposing civil penalty);
01-77 (2001) (city code enforcement board may not alter statutory
provisions to authorized imposition of fine).
17
18
Section 5(3)(a), Ch. 2007-299, Laws of Fla., also makes failure to
comply with the provisions of the district’s code of conduct “malfeasance
within the meaning of Art. IV, s. 7(a) of the Florida Constitution.”
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AGO 11-13 – July 19, 2011
HOUSING FINANCE AUTHORITIES – CONFLICT – SPOUSE
WHETHER LEGAL REPRESENTATION OF “QUALIFIED
HOUSING DEVELOPMENT” BY SPOUSE MAY CONSTITUTE
DIRECT OR INDIRECT INTEREST OF MEMBER OF HOUSING
FINANCE AUTHORITY
To: Mr. Morris G. (Skip) Miller, General Counsel to the Housing
Finance Authority of Palm Beach County, Florida
QUESTION:
Does section 159.606, Florida Statutes, prohibit a person
from being a member of a housing finance authority if the
member’s spouse is a partner in a law firm that provides legal
services to the developers of one or more “qualifying housing
developments” requesting financing from the authority?
SUMMARY:
Section 159.606, Florida Statutes, does not prohibit a person
from being a member of a housing finance authority if the
member’s spouse is a partner in a law firm that provides legal
services to the developers of one or more “qualifying housing
developments” requesting financing from the authority.
You state that the Housing Finance Authority of Palm Beach County
was created by the Board of County Commissioners of Palm Beach
County in 1979 pursuant to Part IV of Chapter 159, Florida Statutes. A
primary function of the authority is to issue bonds to finance “qualifying
housing developments” as defined in section 159.603(6), Florida
Statutes. Such bonds are repayable solely from the revenues or receipts
of the qualifying housing development.1
Your letter indicates that a person has recently been appointed to the
housing finance authority whose spouse is a partner in a law firm that
represents a number of affordable housing developers with respect to
all legal needs including, but not limited to, acquisition and financing
of qualifying housing developments. Several developers represented
by the spouse’s law firm currently have applications pending before
the authority requesting the authority to issue bonds on their behalf.
You have further informed us that the new authority member has
acknowledged that her spouse’s position as a partner in this law firm
will present a voting conflict of interest under section 112.3143, Florida
Statutes, if the law firm’s clients are seeking action from the authority
and she has indicated that she intends to declare a voting conflict when
those situations arise.
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I understand your question to be whether a contractual relationship
for legal services between the board member’s spouse and the developers
of housing developments requesting financing from the housing finance
authority could produce a conflict of interest for the board member by
producing a “direct or indirect” interest in violation of section 159.606,
Florida Statutes, and if such an interest exists, whether the board
member is then disqualified from holding office.
Section 159.606, Florida Statutes, describes conflicts of interest for
members or employees of a housing finance authority and sets forth
disclosure requirements:
No member or employee of a housing finance authority shall
acquire any interest, direct or indirect, in any qualifying
housing development or in any property included or planned
to be included in such a development, nor shall a member or
employee have any interest, direct or indirect, in any contract
or proposed contract for materials or services to be furnished or
used in connection with any qualifying housing development. If
any member or employee of a housing finance authority owns or
controls an interest, direct or indirect, in any property included
or planned to be included in any qualifying housing project, the
member or employee shall immediately disclose the same in
writing to the housing finance authority. Such disclosure shall
be entered upon the minutes of the housing finance authority.
Failure so to disclose such interest shall constitute misconduct
in office.
Nothing in Part IV, Chapter 159, Florida Statutes, defines or otherwise
describes what may be meant by “direct or indirect” interests.
I am aware of no court cases construing the provisions of section
159.606, Florida Statutes, and the lone Attorney General Opinion
construing the statute sheds no light on the question presented
here. However, the Florida Commission on Ethics has, on multiple
occasions, addressed potential conflicts of interest arising from a
spouse’s employment or contractual relationships. In those cases,
the Commission determined that it is the business relationships of
the public officer – not those of the spouse – that are controlled by the
relevant ethics laws.2
Additionally, as the Florida Supreme Court stated in City of Miami
Beach v. Galbut, a 1993 nepotism case,3 provisions of Florida’s ethics
code, like the conflict of interest provisions in section 159.606, Florida
Statutes, are penal in nature and any doubts relating to the meaning of
such a statute must be resolved in favor of a narrow construction.4 The
court determined that this narrow construction was consistent with the
conflict of interest provisions of the Ethics Code providing that it is
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essential that government attract those citizens best qualified
to serve. Thus, the law against conflict of interest must be
so designed as not to impede unreasonably or unnecessarily
the recruitment and retention by government of those best
qualified to serve.5
This reasoning would appear to be equally applicable to conflict of
interest provisions elsewhere in the Florida Statutes.
Based on the failure of section 159.606, Florida Statutes, to extend
application of the conflicts of interest provision to specifically cover
or include the spouse of a public officer, this office will not read such
an extension into the statute. In addition, a strict construction of
this statute is appropriate due to its penal nature.6 Those covered by
a penal statute must have clear notice of what the statute proscribes
and I cannot say that this language would have put a member of a
housing finance authority on notice that his or her spouse’s economic/
professional pursuits would be limited by the member’s service on a
housing finance authority.7 The plain language of section 159.606,
Florida Statutes, indicates that only members or employees of a housing
finance authority are prohibited from acquiring “any interest, direct or
indirect” in any qualifying housing development or having any interest
in a contractual relationship to be used in connection with a qualifying
housing development.8 I believe that this result is consistent with
the Ethics Commission’s handling of comparable issues arising under
Florida’s Code of Ethics.
In sum and in response to your question, it is my opinion that section
159.606, Florida Statutes, does not prohibit a person from being a
member of a housing finance authority if the member’s spouse is a
partner in a law firm that provides legal services to the developers of
one or more “qualifying housing developments” requesting financing
from the authority.
1
See s. 159.62, Fla. Stat.
See, e.g., CEO’s 92-19 (1992), 91-06 (1991), 89-28 (1989), 88-43 (1988),
and 85-52 (1985) (no prohibited conflict of interest exists where the spouse
of a county commissioner is a member of a law firm which represents
clients before the board of county commissioners).
2
3
Section 112.3135(2)(a), Fla. Stat. (1993).
4
City of Miami Beach v. Galbut, 626 So. 2d 192, 193 (Fla. 1993).
5
Id. at 194, citing s. 112.311(2), Fla. Stat. (1991).
6
City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993).
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Id. at 194.
8
A statute’s plain and ordinary meaning must be given effect unless to
do so would lead to an unreasonable or ridiculous result. In re McCollam,
612 So. 2d 572, 573 (Fla. 1993); Holly v. Auld, 450 So. 2d 217, 219 (Fla.
1984); City of Miami Beach v. Galbut, supra.
AGO 11-14 – July 19, 2011
GAMBLING—SLOT MACHINES—VETERANS’
ORGANIZATIONS
APPLICABILITY OF PROHIBITION OF SLOT MACHINES TO
MACHINES OPERATED BY VETERANS’ ORGANIZATION
To: The Honorable Glenn Hess, State Attorney , 14th Judicial Circuit
of Florida
QUESTION:
Does the electronic game operated by a veterans’ organization
as described in your letter constitute an illegal slot machine or
device?
SUMMARY:
Based upon the information you have provided regarding the
electronic machine in question, such a machine would appear to
constitute an illegal slot machine or device.
You state that a local veterans’ organization has acquired electronic
games which appear to be slot-type machines. This office has been
advised that the veterans’ organization considers these games to involve
an element of skill and thus be permitted under section 849.161, Florida
Statutes, which provides an exception to the state’s gambling laws for
arcade amusement centers and truck stops. The Parker Chief of Police
has directed the organization to turn the games off and your office has
met with the organization and the games’ distributor regarding the use
of such games.
According to your letter, the games operate as follows:
1. A player inserts a card containing purchased credits into
the machine and is assigned points.
2. The player then wagers a number of points against the
game.
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3. When a button is pushed, images on the screen mimic the
rotation of drums on a mechanical slot machine.
4. When the images come to rest, the order of their appearance
on the machine shows whether the player has won (gained
points) or lost.
5. At the conclusion of play, accumulated (or remaining)
points are converted to a monetary amount and placed on a
Visa card; the card cannot be cashed out by the machine or
at the VFW (Veterans of Foreign Wars) Post establishment.
However, players can use the card to purchase merchandise at
retail stores, much like a gift card.
From the information you have provided, it appears that the machines
in question are operated by the insertion of an object into the machine,
i.e., a card containing purchased credits, which permits the player to
place a wager and play a game on the machine involving an element of
chance. Points are gained or lost based upon the outcome of the game. At
the conclusion of play, the points are converted into a monetary amount
and placed on a card which may be used to purchase merchandise at
retail stores. Based upon such a description, the machines in question
would appear to constitute slot machines as defined in section 849.16(1),
Florida Statutes.
Pursuant to section 849.15, Florida Statutes, it is unlawful to possess
or permit the operation of any machine or device that satisfies the
description provided in section 849.16, Florida Statutes. Section 849.16
describes the prohibited machines or devices in the following terms:
(1) Any machine or device is a slot machine or device within
the provisions of this chapter if it is one that is adapted for use
in such a way that, as a result of the insertion of any piece of
money, coin, or other object, such machine or device is caused
to operate or may be operated and if the user, by reason of any
element of chance or of any other outcome of such operation
unpredictable by him or her, may:
(a) Receive or become entitled to receive any piece of money,
credit, allowance, or thing of value, or any check, slug, token,
or memorandum, whether of value or otherwise, which may be
exchanged for any money, credit, allowance, or thing of value or
which may be given in trade; or
(b) Secure additional chances or rights to use such machine,
apparatus, or device, even though it may, in addition to any
element of chance or unpredictable outcome of such operation,
also sell, deliver, or present some merchandise, indication of
weight, entertainment, or other thing of value. 1 (e.s.)
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Thus, if the receipt of a prize is dependent on any element of chance,
the machine would fall within the above definition of a slot machine
proscribed by section 849.15, Florida Statutes.2 As stated by the
Supreme Court of Florida in Deeb v. Stoutamire3 in considering the
statutory definition of a slot machine:
The law denouncing slot machines defines them as devices
so adapted that “as a result of the insertion” of a coin they
are “caused to operate or may be operated, and by reason of
any element of chance or of other outcome of such operation
unpredictable by him, the user may receive or become
entitled to receive any * * * thing of value” or anything which
may be exchanged for something of value, such as money or
merchandise, “or the user may secure additional * * * rights” to
play, “even though [the machine] may, in addition to any element
of chance or unpredictable outcome” deliver merchandise or
entertainment. (emphasis supplied by Court)
The Court defined slot machines by referring to the chance or
unpredictability of the mechanism, not of the player.
While the statutory definition of slot machines has been subsequently
amended, such amendments do not appear to have affected the
operative language of the Court’s holding in Deeb relating to chance.
More recently, the district court in State, Department of Business and
Professional Regulation, Division of Alcoholic Beverages v. Broward
Vending, Inc.,4 relied on Deeb in reversing the lower court’s ruling that
a game machine in which skill was a significant factor in operating and
winning did not violate the statute. Instead, the district court held
that where chance is an element of the game, section 849.15, Florida
Statutes, is violated.
An exception to the proscription against slot machines is contained in
section 849.161, Florida Statutes, for arcade amusement centers which
have certain coin-operated amusement games or machines in which
skill is present. The statute provides:
Nothing contained in this chapter shall be taken or construed as
applicable to an arcade amusement center having amusement
games or machines which operate by means of the insertion
of a coin and which by application of skill may entitle the
person playing or operating the game or machine to receive
points or coupons which may be exchanged for merchandise
only, excluding cash and alcoholic beverages, provided the cost
value of the merchandise or prize awarded in exchange for such
points or coupons does not exceed 75 cents on any game played.
*
*
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Nothing in this subsection shall be taken or construed as
applicable to a coin-operated game or device designed and
manufactured only for bona fide amusement purposes which
game or device may by application of skill entitle the player
to replay the game or device at no additional cost, if the game
or device: can accumulate and react to no more than 15 free
replays; can be discharged of accumulated free replays only
by reactivating the game or device for one additional play for
such accumulated free replay; can make no permanent record,
directly or indirectly, of free replays; and is not classified by
the United States as a gambling device in 24 U.S.C. s. 1171,
which requires identification of each device by permanently
affixing seriatim numbering and name, trade name, and date
of manufacture under s. 1173, and registration with the United
States Attorney General, unless excluded from applicability
of the chapter under s. 1178. This subsection shall not be
construed to authorize video poker games, or any other game
or machine that may be construed as a gambling device under
Florida law.5
The term “arcade amusement center” as used in section 849.161 means
“a place of business having at least 50 coin-operated amusement games
or machines on premises which are operated for the entertainment of
the general public and tourists as a bona fide amusement facility.”6
Subsection (1)(a)2. of the statute creates a similar exemption for
amusement games or machines located in a truck stop as defined
therein.7 Thus, section 849.161, Florida Statutes, provides an exemption
for machines that would otherwise be prohibited by Chapter 849,
Florida Statutes, if those machines are located in an arcade amusement
center or truck stop, as those terms of defined by statute, and if, by the
application of skill, the player receives a prize as prescribed therein.8
This office, however, has no information that would indicate that the
veterans’ organization qualifies for either exception. In fact, you have
advised this office in a subsequent letter that the veterans’ organization
does not have 50 machines on its premises and that it is open only to
its members and their guests. Accordingly, it would not fall within the
exception afforded arcade amusement center as that term is defined by
statute.
Nor do the machines in question constitute games that charitable or
nonprofit organizations would be authorized to conduct as an exemption
to the general prohibition against gambling under Chapter 849, Florida
Statutes. Such machines do not fall within the terms of section 849.0931,
Florida Statutes, which authorizes certain nonprofit organizations to
conduct bingo games or instant bingo,9 or section 849.0935, Florida
Statutes, which authorizes specified nonprofit organizations to conduct
drawings by chance.10
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Accordingly, I am of the opinion that the electronic games operated
by a veterans’ organization as described in your letter constitute illegal
slot machines or devices.
Cf. s. 551.102(8), Fla. Stat., defining “Slot machine” for purposes of
Ch. 551, Fla. Stat., which authorizes slot machine gaming under certain
conditions in Miami-Dade County or Broward County.
1
2
And see Op. Att’y Gen. Fla. 89-05 (1989), in which this office determined
that a coin operated “crane game” having an unpredictable outcome or
chance which is inherent in the machine qualifies as a slot machine or
device within the meaning of Ch. 849, Fla. Stat.
3
53 So. 2d 873, 874 (Fla. 1951).
4
696 So. 2d 851 (Fla. 4th DCA 1997).
5
Section 849.161(1)(a)1. and (b), Fla. Stat. It should be noted that in
order to qualify for the exemption afforded by s. 849.161(1)(a), Fla. Stat.,
the machine must be able to accept coins, not merely currency. See Rowe
v. County of Duval, 975 So. 2d 526 (Fla. 1st DCA 2008).
6
Section 849.161(2), Fla. Stat.
The statute refers to a truck stop, as defined in Ch. 336, Fla. Stat., and
which operates a minimum of 6 functional diesel fuel pumps.
7
8
Cf. Op. Att’y Gen. Fla. 95-27 (1995) (mere pushing of a button marked
“skill” does not appear to constitute the application of skill for purposes
of the exemption in s. 849.161, Fla. Stat.; rather, skill must be a factor
with the player’s superior knowledge and attention or superior strength,
agility and practice as an element in the player’s ability to win); Inf. Op.
to Sen. James King, Jr., dated April 1, 2003 (while s. 849.161, Fla. Stat.,
requires that skill be a factor in determining whether the player is entitled
to receive a prize, the outcome of the game be dependent solely on skill).
Ultimately, however, the determination as to whether an amusement
game involves the application of skill is a question of fact that cannot be
resolved by this office. See, e.g., Op. Att’y Gen. Fla. 95-27 (1995); Inf. Op.
to Gregory L. Coler, dated June 12, 2003, and Inf. Op. to Rep. Sandra L.
Murman, dated October 6, 2003.
9
See s. 849.0931, Fla. Stat., authorizing a charitable, nonprofit, or
veterans’ organization, as defined therein, to conduct bingo games in
which participants pay a sum of money for the use of one or more bingo
cards and the numbers are drawn and announced, or instant bingo using
tickets by which a player wins a prize by opening and removing a cover
from the ticket to reveal a set of numbers, letters, objects, or patterns,
some of which have been designated in advance as prize winners. But see
Op. Att’y Gen. Fla. 08-35 (2008), stating that a machine or device comes
within the scope of s. 849.16, Fla. Stat., if that machine dispenses an
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instant bingo game ticket that may, dependent on the element of chance,
entitle the recipient to a prize.
See s. 849.0935(1)(a), Fla. Stat., defining a drawing by chance as “an
enterprise in which, from the entries submitted by the public to the
organization conducting the drawing, one or more entries are selected by
chance to win a prize.”
10
AGO 11-15 – July 21, 2011
SMOKING – SPECIAL DISTRICTS – WORKPLACES WITHOUT
TOBACCO SMOKE – TOBACCO – WATER MANAGEMENT
DISTRICTS
AUTHORITY OF SPECIAL DISTRICT TO ADOPT SMOKING
POLICIES
To: Mr. Kirby B. Green III, Executive Director, St. Johns River Water
Management District
QUESTIONS:
1. May the St. Johns River Water Management District
adopt a policy prohibiting smoking by all persons, including
district employees, who may be present at any location on its
headquarters and service centers property pursuant to its
proprietary right as a landowner to manage its property, or does
the Clean Indoor Air Act preempt such authority?
2. May the district adopt a policy prohibiting tobacco use by
its employees while they are being paid by the district for their
time regardless of physical location, including outdoor locations
and property not owned by the district?
SUMMARY:
The regulation of smoking is preempted to the state pursuant
to section 386.209, Florida Statutes, and the St. Johns River
Water Management District may not adopt a policy prohibiting
smoking or tobacco use that is broader than the terms of the
“Florida Clean Indoor Air Act.” Thus:
1. The St. Johns River Water Management District may not
adopt a regulation prohibiting outdoor smoking by all persons
on district property.
2. However, the St. Johns River Water Management District
may adopt a personnel policy prohibiting tobacco use by its
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11-15
employees while they are being paid by the District for their
time regardless of physical location, including outdoor locations
and property not owned by the district.
According to information supplied with your letter, the St. Johns
River Water Management District is considering approving a policy that
would prohibit tobacco use by all persons present at its headquarters
and service centers, which would include the outdoor areas, such
as sidewalks and parking lots. In addition, in an effort to promote
wellness, the district is considering approving a personnel policy that
would prohibit tobacco use by its employees during working hours
regardless of physical location. This prohibition would extend outdoors
while in the district’s employ, but it would not prohibit smoking when
an employee is not being paid for his or her time by the district. 1
QUESTION 1.
You have asked whether section 386.209, Florida Statutes, precludes
the district from adopting a policy that would prohibit smoking in
outdoor areas that are district property, e.g., parking lots and walkways.
Specifically, you have asked whether the district’s proprietary authority
to manage its property would support such a policy, notwithstanding
section 386.209, Florida Statutes.
Prior to the most recent legislative session, section 386.209, Florida
Statutes, provided:
Regulation of smoking preempted to state.—This part
expressly preempts regulation of smoking to the state and
supersedes any municipal or county ordinance on the subject.2
Effective July 1, 2011, section 386.209, Florida Statutes, as amended
by Chapter 2011-108, Laws of Florida, has been amended to read as
follows:
Regulation of smoking preempted to state.—This part expressly
preempts regulation of smoking to the state and supersedes any
municipal or county ordinance on the subject; however, school
districts may further restrict smoking by persons on school
district property. (underlined text represents amendment).
This amendment and others proposed during the 2011 legislative
session were introduced to clearly express the Legislature’s intent that
the preemption contained in section 386.209, Florida Statutes, extends
to indoor and outdoor smoking.3 Further, proprietary authority, such as
the authority school districts undoubtedly possess to manage their own
property, does not counter the broad preemption embodied in section
386.209, Florida Statutes.4 To conclude otherwise would make the 2011
amendment to section 386.209, Florida Statutes, by Chapter 2011-108,
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Laws of Florida, pointless.5
In short, a legislative amendment to section 386.209, Florida
Statutes, was necessary to authorize school districts to restrict outdoor
smoking on school district property. In light of the Legislature’s implicit
recognition that a special district’s proprietary powers would not
overcome the preemption language of section 386.209, Florida Statutes,
it is my opinion that a similar legislative change would be necessary to
allow the district to adopt its proposed outdoor smoking policy. Thus,
the St. Johns River Water Management District is not authorized to
adopt a policy prohibiting outdoor smoking by all persons on district
property.
QUESTION 2.
You have also asked whether the St. Johns River Water Management
District may adopt a policy prohibiting tobacco use by its employees
while they are being paid by the district for their time, regardless of
physical location, including outdoor locations and property not owned
by the district. Your letter suggests that the general employment power
granted to the district by section 373.083, Florida Statutes, and implied
powers attendant to that statute may provide the authority necessary
for such a regulation.
Members of the governing board of Florida’s water management
districts must employ
[a]n executive director, ombudsman, and such engineers, other
professional persons, and other personnel and assistants as
it deems necessary and under such terms and conditions as it
may determine and to terminate such employment.6 (e.s.)
In addition, section 373.083, Florida Statutes, providing the general
powers and duties of water management district governing boards,
specifically identifies several broad powers “[i]n addition to other powers
and duties allowed it by law. . . .” These powers include the power
to “appoint and remove agents and employees, including specialists
and consultants.”7 Section 373.044, Florida Statutes, authorizes the
governing board of the district to adopt rules, pursuant to Chapter 120,
Florida Statutes, to implement the provisions of Chapter 373, Florida
Statutes, including rules “relating to personnel matters[.]” The district,
as a statutorily created entity, is authorized to exercise such powers
as are expressly granted by statute or necessarily implied to make the
express power effective.8
You have suggested that the case of Kurtz v. City of North Miami,9
offers support for the district’s authority to adopt the rule you propose
as an employee regulation. In the Kurtz case, which predates the
adoption of Article X, section 20, Florida Constitution, the Third District
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Court of Appeal determined that the Florida Clean Indoor Air Act did
not preempt a city regulation requiring all job applicants to sign an
affidavit stating that they had not used tobacco or tobacco products for
at least one year immediately preceding application. The objective of
the city’s regulation was to reduce health costs and the amount of lost
productivity due to absenteeism. While acknowledging that the intent
of the state act was to provide a uniform code restricting indoor smoking
in public places and that it contained language preempting all local
ordinances dealing with the restriction of indoor smoking, the court
concluded that this municipal regulation “only attempts to regulate the
City’s employment practices and is not concerned with regulating indoor
smoking” since employees were free to resume smoking after they were
hired. Once the court determined that the regulation of smoking was
not the intention of the rule and thus, preemption was not an issue,
it considered whether a job applicant’s privacy rights under the State
Constitution were implicated when the city required her to refrain
from smoking for a year prior to being considered for employment. The
District Court of Appeal concluded that the city’s interests were not
sufficient to reach the private lawful conduct of potential employees.
However, the court certified to the Florida Supreme Court the question of
whether applicants seeking government employment have a reasonable
expectation of privacy under Article I, section 23, Florida Constitution,
regarding their smoking habits.
The Florida Supreme Court answered the certified question in the
negative, stating that “[g]iven that individuals must reveal whether
they smoke in almost every aspect of life in today’s society, we conclude
that individuals have no reasonable expectation of privacy in the
disclosure of that information when applying for a government job and,
consequently, that Florida’s right of privacy is not implicated under
these unique circumstances.”10
The action the district proposes, i.e., the prohibition of employee
tobacco use while employed by the district, appears to represent a
condition of employment, rather than a broader regulation applicable
generally which, as discussed in Question One, would apply to district
employees and the general public. In support of this conclusion, I note
that the district possesses the express power to employ staff under the
conditions it determines are appropriate.
In sum, it is my opinion that the St. Johns River Water Management
District, as a public employer, is authorized by sections 373.079 and
373.044, Florida Statutes, to adopt personnel rules prohibiting tobacco
use by its employees while they are being paid by the district for their
time regardless of physical location, including outdoor locations and
property not owned by the district.
1
Conversations with the district general counsel’s office indicate that
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you have been delegated the authority of the governing board of the
district pursuant to s. 373.079(4)(a), Fla. Stat., to develop policies for the
terms and conditions of employment for district employees and for the
management of district real property. Thus, this request is submitted in
your capacity as executive director rather than on behalf of the governing
board of the district. And see s. 373.083(5), Fla. Stat.
2
Section 386.209, Fla. Stat. 2010.
This conclusion is consistent with Attorney General Opinions which
similarly construed section 386.209 as preempting outdoor smoking
prohibitions. This office has read this statute and the broad language
of the act to preclude a school district from regulating smoking on school
property other than as provided in the Florida Clean Indoor Air Act (Op.
Att’y Gen. Fla. 10-53 [2010]); to prohibit a municipality from regulating
smoking outdoors in a public park (Op. Att’y Gen. Fla. 05-63 [2005]); and
to preclude counties and municipalities from enforcing the act in light
of the preemption language and the comprehensive enforcement powers
conferred upon state agencies in the act (Op. Att’y Gen. Fla. 92-89 [1992]).
3
Cf. Op. Att’y Gen. Fla. 97-44 (1997), discussing the powers of school
districts and stating that while school districts are constitutional entities
they are not immune from legislative control.
4
See, e.g., Sharer v. Hotel Corporation of America, 144 So. 2d 813, 817
(Fla. 1962) (it should never be presumed that the Legislature intended
to enact purposeless and therefore useless, legislation); Neu v. Miami
Herald Publishing Company, 462 So. 2d 821 (Fla. 1985) (in construing
legislation, courts should not assume Legislature acted pointlessly); Ops.
Att’y Gen. Fla. 00-46 (2000), 98-83 (1998), 97-78 (1997).
5
6
Section 373.079(4)(a), Fla. Stat.
7
Section 373.083(1), Fla. Stat.
See State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.
2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974);
City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493 (Fla.
1973). Cf. Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976).
8
9
625 So. 2d 899 (Fla. 3d DCA 1993).
10
See City of North Miami v. Kurtz, 653 So. 2d 1025, 1028 (Fla. 1995).
AGO 11-16 – August 31, 2011
LAW ENFORCEMENT, DEPARTMENT – PUBLIC
RECORDS – SEXUAL OFFENDERS – FLORIDA OFFENDER
ALERT SYSTEM
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APPLICABILITY OF NEWLY ENACTED EXEMPTION TO
FLORIDA OFFENDER ALERT SYSTEM AND TO PUBLIC
RECORDS REQUEST MADE PRIOR TO EXEMPTION’S
EFFECTIVE DATE
To: Mr. Michael Ramage, General Counsel, Florida Department of
Law Enforcement
QUESTIONS:
1. Are the email addresses and corresponding home, school,
and other “watched addresses of concern” with the FDLE
Offender Alert System exempt from disclosure under section
119.071(5)(j), Florida Statutes (Chapter 2011-85)?
2. If the response to the first inquiry is “Yes,” then if a
Public Records Request for such information was made prior
to July 1, 2011, does the exemption apply under the provision in
section 119.071(5)(j) that states that “this exemption applies to
information held by an agency, before, on, or after the effective
date of this exemption?
SUMMARY:
1. The email addresses and corresponding home, school, and
other “watched addresses of concern” provided for participation
in the FDLE Offender Alert System come within the scope of the
exemption afforded by section 119.071(5)(j), Florida Statutes.
2. The exemption afforded by section 119.071(5)(j), Florida
Statutes, applies to a pending public records request received
prior to the statute’s effective date.
QUESTION 1.
According to your letter, FDLE has received a public records request
for the email addresses and physical addresses maintained in the
“Florida Offender Alert System.” Such a system was apparently created
to comply with the mandate established in section 943.44353(1), Florida
Statutes, which provides that “[n]o later than January 1, 2008, the
department shall develop and maintain a system to provide automatic
notification of registration information regarding sexual predators
and sexual offenders to the public.”1 You state that the system allows
individuals who wish to be notified when a registered sexual offender
moves near an address of concern to submit their email address and the
physical address of concern to FDLE.2 A notice has been placed on the
website where individuals register to receive such alerts stating that
“[u]nder Florida law, e-mail addresses are public records.”3
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During the 2011 legislative session, the Legislature enacted section
119.071(5)(j)1., Florida Statutes, effective July 1, 2011, which provides
in pertinent part:
Any information furnished by a person to an agency for the
purpose of being provided with emergency notification by
the agency, including the person’s name, address, telephone
number, e-mail address, or other electronic communication
address, is exempt from s. 119.07(1) and s. 24(a), Art. I of the
State Constitution. This exemption applies to information
held by an agency, before, on, or after the effective date of this
exemption.4
In setting forth the public necessity for passage of the above
exemption,5 section 2 of Chapter 2011-85, Laws of Florida, provides:
The Legislature finds that it is a public necessity to exempt
from public records requirements any information furnished
by a person to an agency for the purpose of being provided
with emergency notification by the agency. Through the use of
current technology, agencies may contact members of the public
by a variety of electronic means, including cellular telephones
and electronic mail, to alert them of imminent natural and
manmade disasters, medical emergencies, criminal emergencies,
and other dangerous conditions. Public safety is significantly
enhanced through the use of such emergency notification
programs, and expansion of such programs further increases
public safety. A public records exemption for information
furnished to an agency for this purpose will encourage greater
participation in emergency notification programs by alleviating
concerns about disclosure of information that could be used
for criminal purposes. For these reasons, the public records
exemption provided in this act is necessary for the effective
implementation of and broad participation in emergency
notification programs conducted by agencies. (e.s.)
You suggest that notification under the “Florida Offender Alert
System” constitutes an “emergency notification” within the meaning
of section 119.071(5)(j)1., Florida Statutes, in light of the reference
in the statement of necessity to “other dangerous conditions.” In
support thereof, you cite to several provisions of section 775.21, Florida
Statutes, “The Florida Sexual Predators Act,” in which the Legislature
has expressed its concern regarding the threat sexual predators pose
to public safety,6 and which requires law enforcement agencies to
inform members of the community and the public of a sexual predator’s
presence.7 In recognition that the Florida Offender Alert System is not
limited to alerts for sexual predators but also includes notification of
sexual offenders, you refer to section 943.0435, Florida Statutes, which
requires sexual offenders to register with FDLE, and which provides in
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part in subsection (12):
The Legislature finds that sexual offenders, especially those
who have committed offenses against minors, often pose a high
risk of engaging in sexual offenses even after being released
from incarceration or commitment and that protection of
the public from sexual offenders is a paramount government
interest. . . . Releasing information concerning sexual offenders
to law enforcement agencies and to persons who request such
information, and the release of such information to the public
by a law enforcement agency or public agency, will further the
governmental interests of public safety. . . .
Section 119.071(5)(j)1., Florida Statutes, does not identify any specific
notification system other than to refer to “emergency” notifications.
While section 943.44353(1), Florida Statutes, in providing for the
creation of the Florida Offender Alert System, does not expressly
label the system as an emergency notification system, this statute
was enacted to implement the federal Adam Walsh Child Protection
and Safety Act which contemplates an immediate notification to those
individuals who have requested to be notified.8 Section 943.44353, as
well as the provisions of sections 775.21 and 943.0435, Florida Statutes,
recognizes the on-going threat posed by the location of sexual predators
or sexual offenders within a community and contemplates notification
in the interests of public safety.9
A review of the legislative history surrounding the enactment of
Chapter 2011-85, Laws of Florida, fails to provide clear direction on this
issue. The staff analysis for the bill, for example, refers to public health
emergencies, boil water notices, missing child notices, and evacuation
notices.10 In presenting the bill during the various committee meetings,
the sponsors referred to the bill as relating to a reverse 911 notification
system.11
The Legislature has characterized the presence of a sexual predator in
a community as an extreme threat to public safety requiring notification
and the release of information relating to a sexual offender’s presence
in the community to be in furtherance of the governmental interests
in public safety.12 Moreover, as clearly reflected in the statement of
necessity for section 119.071(5)(j), Florida Statutes, the Legislature
was concerned with encouraging public participation in emergency
notification programs by ensuring that the information submitted by
the public to participate in such programs was protected. As stated
therein:
A public records exemption for information furnished to an
agency for this purpose will encourage greater participation
in emergency notification programs by alleviating concerns
about disclosure of information that could be used for criminal
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purposes.13
The Florida Offender Alert System clearly addresses the Legislature’s
concern with the public safety threat posed by the presence of sexual
predators and sexual offenders in the community by alerting persons
who have requested notification of the immediate danger posed by
such individuals moving into their neighborhoods. In the statement
of necessity for Chapter 2011-85, Laws of Florida, the Legislature
repeatedly expressed its intent that the bill is directed toward public
safety and seeks to encourage public participation in such notification
alert systems. Thus, the inclusion of the Florida Offender Alert System
would appear to be consistent with the expressed legislative intent for
the adoption of the exemption.
This office, in interpreting the scope of any exemption, must read
the exemption to give effect to the expressed intent of the Legislature.14
Here, this office recognizes the Legislature’s express intent to encourage
greater participation in emergency notification programs and must take
into consideration the concerns expressed by the Legislature in such
statutes as section 775.21 and 943.0435, Florida Statutes, relating to the
public threat posed by sexual predators and offenders. This office also
recognizes that the information provided to FDLE for notification under
the Florida Offender Alert System is for substantially the same purpose
as for other emergency alert systems, i.e., to notify the individual of a
potentially threatening situation.
Accordingly, I am of the opinion that the email addresses and
corresponding home, school, and other “watched addresses of concern”
provided for participation in the FDLE Offender Alert System come
within the scope of the exemption afforded by section 119.071(5)(j),
Florida Statutes.
QUESTION 2.
You state that the request for the email addresses and physical
addresses maintained in the “Florida Offender Alert System” was
received by FDLE in June of this year, prior to the effective date of
Chapter 2011-85, Laws of Florida, which created section 119.071(5)(j),
Florida Statutes. You therefore ask whether the exemption afforded
by section 119.071(5)(j) would apply to a request received prior to the
exemption’s effective date in light of the language stating that “this
exemption applies to information held by an agency, before, on, or after
the effective date of this exemption.”
The Florida Supreme Court has recognized that access to public
records is a substantive right and thus a statute affecting that right is
presumptively prospective and there must be a clear legislative intent
for the statute to apply retroactively.15 Therefore, generally the critical
date in determining whether a document is subject to disclosure is
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generally the date the public records request is made; the law in effect
on that date applies.16
If, however, the Legislature is “clear in its intent” that the statute
apply retroactively, such intent will be given effect. For example, the
court in Campus Communications, Inc. v. Earnhardt,17 stated that
where the Legislature expressly provided that an exemption from
disclosure (in that case, an exemption for autopsy photographs) is to be
applied retroactively, the court will give effect to the legislative intent.18
While the language under consideration in Earnhardt was somewhat
different than that contained in section 119.071(5)(j), Florida Statutes,19
it appears clear that the Legislature intended that the statute be
retroactively applied to exempt information held by an agency, before,
on, or after the effective date of the exemption.20
In light of the above, I am of the opinion that the exemption afforded
by section 119.071(5)(j), Florida Statutes, would apply to a pending
public records request received prior to the statute’s effective date.
The notification system was adopted to comply with the provisions of
the federal Adam Walsh Child Protection and Safety Act of 2006, P.L.
No. 109-248, 120 Stat. 587 (2007). See 42 U.S.C. 16921(b), providing that
“immediately after a sex offender registers or updates a registration, an
appropriate official in the jurisdiction shall provide the information in
the registry (other than information exempted from disclosure by the
Attorney General) about that offender to . . . [a]ny organization, company,
or individual who requests such notification pursuant to procedures
established by the jurisdiction.” And see Florida Senate Professional
Staff Analysis and Economic Impact Statement on CS/CS/SB 1604, dated
April 11, 2007, stating that the bill (enacted as Ch. 2007-209, Laws of
Fla.) was enacted to comply with the federal act.
1
The FDLE’s website at: http://www.floridaoffenderalert.com advises
an individual that you may “use this website to subscribe for an e-mail
alert in the event that an offender or predator moves close to any address
in Florida you choose.” (e.s.)
2
See s. 668.6076, Fla. Stat., requiring an agency, as defined in s. 119.011,
Fla. Stat., or legislative entity that operates a website and uses electronic
mail to post such a statement in a conspicuous location on its website. The
statement, however, constitutes a recognition that all records received
by an agency in connection with the transaction of official business are
public records and is not dispositive of whether an exemption applies.
3
4
See Ch. 2011-85, Laws of Fla.
See Art. I, s. 24(c), Fla. Const., requiring the Legislature, in enacting an
exemption from the open records requirements of subsection (a) thereof to
“state with specificity the public necessity justifying the exemption” which
5
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“shall be no broader than necessary to accomplish the stated purpose of
the law.”
See, e.g., s. 775.21(3)(a), Fla. Stat., stating that “[r]epeat sexual
offenders, sexual offenders who use physical violence and sexual offenders
who prey on children are sexual predators who present an extreme
threat to the public safety;” and s. 775.21(3)(b)4., Fla. Stat., providing for
community and public notification due to the “high level of threat that a
sexual predator presents to the public safety[.]”
6
7
See s. 775.21(7), Fla. Stat.
8
See n.1, supra.
Cf. s. 775.21(7)(a), Fla. Stat., providing that within 48 hours after
receiving notification of the presence of a sexual predator, the sheriff of the
county or the chief of police of the municipality where the sexual predator
temporarily or permanently resides shall notify each licensed child care
facility, elementary school, middle school, and high school within a 1-mile
radius of the temporary or permanent residence of the sexual predator of
the presence of the sexual predator. FDLE is responsible for the online
maintenance of current information regarding each registered sexual
predator and for maintaining hotline access for state, local, and federal
law enforcement agencies to obtain instantaneous locator file and offender
characteristics information on all released registered sexual predators for
purposes of monitoring, tracking, and prosecution.
9
Final Bill Analysis on HB 597, dated June 29, 2011, available online at:
http://myfloridahouse.gov/Sections/Documents/loaddoc.aspx? FileName=
h0597z.SAC.DOCX&DocumentType=Analysis&BillNumber=0597&Sess
ion=2011.
10
11
See Representative Taylor’s comments at House of Representatives
Government Operations Subcommittee meeting, March 23, 2011, and
House of Representatives State Affairs meeting, April 7, 2011, podcasts
available at:
http://myfloridahouse.gov/Sections/PodCasts/PodCasts.
aspx. And see comments of representative for Senator Hays at Senate
Community Affairs Committee, March 7, 2011, and Senate Governmental
Oversight & Accountability Committee, April 5, 2011, on SB 874, the
Senate companion bill, podcasts available at: http://www.flsenate.gov/
Committees/Show/CA/ and http://www.flsenate.gov/Committees/Show/
GO/, respectively.
12
See s. 775.21(3)(a) and s. 943.0435(12), Fla. Stat., respectively.
13
Section 2, Ch. 2011-85, Laws of Fla.
See, e.g., Critical Intervention Services, Inc. v. City of Clearwater, 908
So. 2d 1195 (Fla. 2d DCA 2005), in which the court, in giving effect to the
intent of the exemption, concluded that a list of applicants for burglar
alarms could not be released under an exemption for records relating to
14
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11-17
security systems even though the exemption did not expressly mention
these particular records. See generally Ervin v. Peninsular Telephone
Company, 53 So. 2d 647 (Fla. 1951) (duty in construction of statutes is
to ascertain Legislature’s intention and effectuate it); Op. Att’y Gen. Fla.
94-37 (1994) (paramount rule of statutory construction is to ascertain the
intent of the Legislature).
See Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation,
784 So. 2d 438 (Fla. 2001).
15
See Baker County Press, Inc. v. Baker County Medical Services, 870 So.
2d 189, 192-193 (Fla. 1st DCA 2004).
16
821 So. 2d 388, 396 (Fla. 5th DCA 2002), review denied, 848 So. 2d
1153 (Fla. 2003).
17
Compare Memorial Hospital-West Volusia, Inc. v. News-Journal
Corporation, supra, in which the Court held that language in an exemption
for records of a private corporation leasing a public hospital stating that
it applied to existing leases did not clearly exempt records created prior
to the effective date of the exemption. Section 119.071(5)(j), Fla. Stat.,
however, provides that the exemption applies to information held before,
on, or after the effective date of the exemption.
18
In Earnhardt, the statute in question stated that the exemption
applied retroactively rather than stating that the exemption applies to
information held before, on, or after the effective date of the exemption.
19
Cf. City of Orlando v. Desjardins, 493 So. 2d 1027, 1028 (Fla. 1986)
(newly enacted exemption for attorney work product applied to an
action accruing prior to the effective date of the exemption in light of the
remedial nature of the exemption); Roberts v. Butterworth, 668 So. 2d 580
(Fla. 1996) (applying capital collateral litigation work product exemption
retroactively to a public records request that predated the effective date
of the exemption).
20
AGO 11-17 – September 21, 2011
COUNTIES – FIREARMS – PREEMPTION – REGULATION
AUTHORITY OF COUNTY TO ENACT ORDINANCE
REGULATING DISCHARGE OF FIREARMS
To: Mr. Lane Lynchard, Chairman, Santa Rosa County Board of
Commissioners
QUESTIONS:
1. May Santa Rosa County regulate the recreational discharge
of firearms in residentially zoned areas in light of section 790.33,
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Florida Statutes?
2. May a county impose new regulations impacting a private
shooting range if the shooting range is not in compliance with
current “National Rifle Association gun safety and shooting
range standards?”
3. Is the “NRA Range Source Book” (National Rifle
Association) the relevant standard referenced in section
823.16(6), Florida Statutes?
SUMMARY:
1. Santa Rosa County may not regulate the recreational
discharge of firearms in residentially zoned areas as the
regulation of firearms is preempted to the state pursuant to
section 790.33, Florida Statutes.
2. Pursuant to section 823.16(6), Florida Statutes, a sport
shooting range that was lawful at the time of its construction
loses any applicable exemption from a “new ordinance or an
amendment to an existing ordinance” if the shooting range does
not “continue[ ] to conform to current National Rifle Association
gun safety and shooting range standards.”
3. In the absence of clear guidance from the statutory text,
and without any clarifying legislative history, this office is
unable to opine on whether the “NRA Range Source Book”
contains the applicable National Rifle Association Standards.
You have posed several questions “regarding the ability of a county
or other municipality to regulate the recreational discharge of firearms
in a residentially zoned area in light of F.S. 790.33.” In answering your
questions, I am mindful of local governments’ concern for the safety
and well-being of their residents and I note that this opinion is limited
to the issue of preemption and a county’s authority to expand on the
protections already in the law. This opinion does not address the many
statutory provisions regulating the discharge of firearms. In light of
the interrelated nature of these issues, your questions are answered
together.
Chapter 790, Florida Statutes, operates to regulate the entire field
of firearms and ammunition, including the purchase, sale, transfer,
taxation, manufacture, ownership, possession, and transportation
thereof.1 Section 790.33(1), Florida Statutes, as amended by Chapter
2011-109, Laws of Florida,2 states:
Except as expressly provided by the State Constitution or
general law, the Legislature hereby declares that it is occupying
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the whole field of regulation of firearms and ammunition,
including the purchase, sale, transfer, taxation, manufacture,
ownership, possession, storage, and transportation thereof,
to the exclusion of all existing and future county, city, town,
or municipal ordinances or any administrative regulations or
rules adopted by local or state government relating thereto.
Any such existing ordinances, rules, or regulations are hereby
declared null and void.
In section 790.33, Florida Statutes, the Legislature, in furtherance
of its intent to “provide uniform firearms laws in the state[,]”3 has
expressly stated that “it is occupying the whole field of regulation of
firearms and ammunition.” Moreover, in adopting Chapter 2011-109,
Laws of Florida, the Legislature reaffirmed its intent to preempt the
field of firearms regulation and mandated penalties for official acts that
contravene state preemption.4
Particularly in light of its recent reaffirmation by the Legislature,
section 790.33, Florida Statutes, provides a clear answer to your
principal question: a county may not regulate the recreational discharge
of firearms in residentially zoned areas when the discharge is not on a
“shooting range,” but merely recreational shooting on private property.
In addition to being mandated by the plain language of section 790.33,
Florida Statutes,5 this conclusion adheres to the position taken by this
office in Attorney General Opinion 2005-40. That opinion concluded
that section 790.33, Florida Statutes, prohibited Indian River County
from adopting an ordinance that would have prohibited the discharge of
firearms within 300 yards of a building or public road or right-of way.
There is no material difference between the issue presented in your
request and the issue addressed in Attorney General Opinion 2005-40.6
Although it is not entirely clear, your request seems to ask whether
local governments could regulate the use of firearms “any place where
firearms are discharged” simply by couching an ordinance in terms of
regulating “shooting ranges.” Specifically, your request asserts that
“[t]he definition of ‘shooting range’ provided in [section] 823.16(1)(c)
essentially makes a ‘shooting range’ synonymous with any location
where firearms are discharged.” This office respectfully disagrees with
that characterization of the Legislature’s use of the term “shooting
range.” The definition of “Sport shooting range” set forth in section
823.16(1)(c), Florida Statutes,7 is nearly identical to the definition of
“Sport shooting and training range” set out in section 790.333(3)(h),
Florida Statutes.8 In section 790.333(1)(a) and (c), Florida Statutes, the
Legislature noted the importance of shooting ranges for firearms training
programs and adopted a finding that “in excess of 400 sport shooting
and training ranges exist on public and private lands throughout this
state.” Clearly, the Legislature does not deem a “shooting range” to
consist of any location where firearms are discharged.
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Your request concludes with questions about section 823.16(6),
Florida Statutes. Under that provision, a sport shooting range that was
lawful at the time of its construction loses any applicable exemption
from a “new ordinance or an amendment to an existing ordinance” if
the shooting range does not “continue[ ] to conform to current National
Rifle Association gun safety and shooting range standards.” The
statute provides protection from application of new or amended local
ordinances for those shooting ranges which are in compliance with
current “National Rifle Association gun safety and shooting range
standards” and were not in violation of any law at the time the range
was constructed. If a shooting range does not comply with current
“National Rifle Association gun safety and shooting range standards,” it
falls outside the protections of section 823.16(6), Florida Statutes, and
new county regulations governing shooting ranges would be effective
as imposed on such property. Again, however, we note that the
Legislature’s intent is clear that a “shooting range” is not synonymous’
with any place a firearm is discharged.
Finally, you ask whether the reference in section 823.16(6), Florida
Statutes, to current “National Rifle Association gun safety and shooting
range standards” is a reference to the “NRA Range Source Book.” A
review of the legislative history of this statute9 does not provide any
clear direction on this issue and, in the absence of clear guidance from
the statutory text and without any clarifying legislative history, this
office is unable to opine on whether the “NRA Range Source Book”
contains the applicable National Rifle Association standards.
1
Section 790.33(1), Fla. Stat.
2
Effective October 1, 2011. See s. 2, Ch. 2011-109, Laws of Fla.
3
Section 1(2)(a), Ch. 2011-109, Laws of Fla.
See s. 1, Ch. 2011-109, Laws of Fla. The language of preemption
contained in s. 790.33(1), Fla. Stat., providing that the Legislature has
determined to occupy “the whole field” of firearms regulation is expansive.
See National Rifle Association of America, Inc. v. City of South Miami,
812 So. 2d 504 (Fla. 3d DCA 2002), in which a city’s firearms ordinance
establishing safety standards for firearms was determined to be ultra
vires based on the legislative preemption of “the entire field of firearm and
ammunition regulation by enactment of section 790.33, Florida Statutes
(2000)[,]” despite the absence of any mention of storage or safety within
the scope of the statute.
4
See, e.g., In re McCollam, 612 So. 2d 572 (Fla. 1993) (when language
of statue is clear and unambiguous and conveys a clear meaning, statute
must be given its plain and ordinary meaning).
5
6
Your letter suggests a conflict between Ops. Att’y Gen. Fla. 05-40
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(2005) and 08-34 (2008). The 2008 opinion deals with shooting ranges
and the regulation of new construction of such ranges. The 2005 opinion
is concerned with the discharge of firearms under the provisions of s.
790.15, Fla. Stat., but does not discuss or comment on shooting ranges,
which are regulated separately from the general provisions of s. 790.33,
Fla. Stat. I see no conflict between these opinions.
Section 823.16(1)(c), Fla. Stat., defines a “sport shooting range” or
“range” as “an area designed and operated for the use of rifles, shotguns,
pistols, silhouettes, skeet, trap, black powder, or any other similar type of
sport shooting.”
7
Section 790.333(3)(h), Fla. Stat., defines “sport shooting and training
range” or “range” to mean “any area that has been designed, or operated
for the use of, firearms, rifles, shotguns, pistols, silhouettes, skeet, trap,
black powder, BB guns, airguns, or similar devices, or any other type of
sport or training shooting.”
8
See, e.g., Senate Staff Analysis and Economic Impact Statement for
SB 776, 1999 Florida Legislative Session, dated March 15, 1999. SB 776
was the companion bill to the house version which became s. 823.16, Fla.
Stat., and generally discusses gun safety and shooting range standards.
9
AGO 11-18 – September 21, 2011
COUNTIES – INSURANCE – GROUP INSURANCE
ABILITY OF COUNTY TO REQUIRE PARTICIPATION IN
COUNTY’S SELF-INSURED GROUP INSURANCE PROGRAM
To: Mr. Roman Gastesi, Monroe County Administrator
QUESTIONS:
1. May Monroe County require its employees and elected
officials to participate in its self-insured health insurance
program, regardless of whether a premium is charged?
2. If the answer is yes, then must the County allow employees,
elected officials, and retirees the option to participate in group
insurance programs (offering coverage for dental, vision, and
accidental death or dismemberment) if the individuals elect not
to participate in the self-insurance program?
SUMMARY:
1. Monroe County may not require its employees and elected
officials to participate in its self-insured health insurance
program.
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2. There is no statutory requirement that Monroe County must
allow employees, elected officials, and retirees to participate in
optional group insurance programs, such as dental, vision, and
accidental death or dismemberment plans, offered to county
employees and elected officials when the individuals elect not to
participate in the county’s self-insured group program.
You state that Monroe County currently requires all employees and
elected officials to participate in a self-insured health insurance plan
which also has pharmacy benefits. Employees and elected officials are
not charged a premium, with the county contributing $790.00 monthly
per employee for participation in the plan. The county provides nominal
life insurance and accidental death and dismemberment plans at no
charge to its employees and elected officials. Retirees have the option
of continuing in the plan at their own expense. All participants have
the option to enroll spouses and dependents in the plan at an additional
premium cost paid by the employee, elected official, or retiree. Funding
for the program and pharmacy benefits is derived from ad valorem
taxes and premiums collected for coverage of retirees, spouses, and
dependents.
The county offers optional insurance plans for vision, dental, and
accidental death and dismemberment, available at the expense of
employees or elected officials. While the self-insurance plan is mandatory,
employees and elected officials may change their participation in all
other group insurance programs during an opt-in/opt-out period each
year.
QUESTION 1.
Section 112.08(2)(a), Florida Statutes, authorizes every local
governmental unit to:
[P]rovide and pay out of its available funds for all or part of the
premium for life, health, accident, hospitalization, legal expense,
or annuity insurance, or all or any kinds of such insurance, for
the officers and employees of the local governmental unit and for
health, accident, hospitalization, and legal expense insurance
for the dependents of such officers and employees upon a group
insurance plan and, to that end, to enter into contracts with
insurance companies or professional administrators to provide
such insurance. . . . Each local governmental unit may selfinsure any plan for health, accident, and hospitalization
coverage or enter into a risk management consortium to provide
such coverage, subject to approval based on actuarial soundness
by the Office of Insurance Regulation; and each shall contract
with an insurance company or professional administrator
qualified and approved by the office to administer such a plan.
(e.s.)
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The authority for local governmental units to provide group insurance
to their employees originated in 1941.1 Officers were added as eligible
participants in 1972.2 As originally enacted, the act stated that
participation in such group insurance by any employee “shall be entirely
voluntary at all times.”3 The act further required a written request
from the public employee before the employer could deduct the costs of
premiums from the employee’s wages.4 While the language in section
112.08, Florida Statutes, was substantially reworded in 1976, the only
significant alteration was to provide local governing units authority to
“self-insure any plan for health, accident and hospitalization coverage[.]”5
The provisions in the act recognizing participation is voluntary and the
requirement of written authorization from the officer or employee for
deductions to be made from his or her wages for premiums present in
the original act remain intact today and are contained in section 112.11,
Florida Statutes, which states:
The participation in such group insurance by any officer or
employee shall be entirely voluntary at all times. Any officer
or employee may, upon any payday, withdraw or retire from
such group insurance plan, upon giving the employer written
notice thereof and directing the discontinuance of deductions
from wages in payment of such premiums. (e.s.)
The plain language of the statute relates to voluntary participation in
“group insurance,” not a particular plan that may be provided through
an insurance company, a professional administrator, or self-insurance.
The term “group insurance plan” is not defined for purposes of the act,
but the intent of the Legislature in the enactment of the law is clearly
stated in section 112.14, Florida Statutes:
It is hereby declared to be the purpose and intent of this law
to make available upon a voluntary participation basis to
the several officers and employees aforesaid, the economics,
protection and benefits of group insurance not available to each
officer and employee as an individual. It is also the purpose
and intent of this law to provide authority for the payment of
premiums or charges for group insurance for county officers
whose compensation is fixed by chapter 145 in addition to the
compensation provided in chapter 145. (e.s.)
It is well settled that legislative intent is the polestar that guides a
court’s statutory construction analysis.6 While the authorized means for
a local government to provide group insurance were expanded to include
self-insurance or participation in a risk management consortium,7 there
is nothing in the language of the statute or the legislative history of
section 112.08, Florida Statutes, to indicate a change in the Legislature’s
intent that employees and officers voluntarily participate in the group
insurance offered by local governing units.
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Accordingly, it is my opinion that Monroe County may not require
its officers and employees to participate in its self-insured group health
insurance plan.
QUESTION 2.
As noted above, section 112.08, Florida Statutes, authorizes local
governmental units to provide all or part of the premium for life,
health, accident, hospitalization, legal expense, or annuity insurance,
or “all or any kinds of such insurance” for their officers and employees.
The governmental unit may also provide and pay for health, accident,
hospitalization, and legal expense insurance for the dependents of
such officers and employees. In providing such insurance, each local
governmental unit “may determine the portion of the cost, if any, of
such fund, plan, or program to be paid by officers or employees of the
local governmental unit and fix the amounts to be paid by each such
officer or employee as will best serve the public interest.”8
The discretionary authority for local governmental units to provide
and pay for group insurance, however, does not appear to carry with it
an obligation to provide group insurance, nor does it require the offering
of additional types of insurance, such as optional insurance plans for
vision, dental, and accidental death and dismemberment or require the
county to allow participation by those who have opted out of the group
insurance.9 Section 112.0801, Florida Statutes, provides:
Any state agency, county, municipality, special district,
community college, or district school board which provides life,
health, accident, hospitalization, or annuity insurance, or all of
any kinds of such insurance, for its officers and employees and
their dependents upon a group insurance plan or self-insurance
plan shall allow all former personnel who retired before October
1, 1987, as well as those who retire on or after such date, and
their eligible dependents, the option of continuing to participate
in such group insurance plan or self-insurance plan. Retirees
and their eligible dependents shall be offered the same health
and hospitalization insurance coverage as is offered to active
employees at a premium cost of no more than the premium cost
applicable to active employees. For retired employees and their
eligible dependents, the cost of continued participation may be
paid by the employer or by the retired employees. . . .
When a statute enumerates the things upon which it operates, it
is ordinarily construed as excluding from its operation all things not
expressly mentioned.10 Thus, the Legislature in section 112.0801, Florida
Statutes, has prescribed those instances in which a local governing unit
is required to allow others than its officers and employees, in this case
retirees, to participate in a group insurance plan offered by the unit. It
is beyond the authority of this office to read additional requirements
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into the statute or to extend its application to other types of group
insurance offered by a governmental unit.11
There is nothing in sections 112.08 or 112.0801, Florida Statutes,
nor has any other statutory provision been brought to my attention,
requiring the county to allow participation in its optional dental, vision,
and accidental death or dismemberment group plans by anyone other
than those who are designated by the county as eligible to do so. While,
as discussed in Question One, participation in the group insurance
provided by the county is voluntary, nothing in the applicable statutes
mandates the types of insurance which must be offered.
Accordingly, it is my opinion that Monroe County is not required to
allow employees, elected officials, and retirees to participate in optional
group insurance programs, such as dental, vision, and accidental death
or dismemberment plans, offered to county employees and elected
officials, if the individuals elect not to participate in the county’s selfinsured group program.
See Ch. 20852, Laws of Fla. (1941), authorizing all governmental units
in Florida to set up group insurance plans for employees.
1
2
See Ch. 72-338, Laws of Fla. (1972).
3
Section 4, Ch. 20852, Laws of Fla. (1941).
4
Section 3, Ch. 20852, Laws of Fla. (1941).
See s. 1, Ch. 76-208, Laws of Fla. (1976), substantially rewording
section 112.08, Fla. Stat., to its present form allowing local governmental
units to self-insure its group insurance plan.
5
See State v. Rife, 789 So. 2d 288, 292 (Fla. 2001); McLaughlin v. State,
721 So. 2d 1170, 1172 (Fla. 1998).
6
See House Commerce Committee, Tape 1 of 2, Side B, April 27, 1976,
reflecting that the purpose of authorizing local governmental units to
self-fund group insurance is to lower rates and allow local governmental
units to receive the interest that accrues on the premiums paid into the
fund, rather than the private insurance company; further reiterating that
the bill is merely permissive, not mandatory.
7
8
Section 112.08(3), Fla. Stat.
9
See n.7, supra.
See Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976) (enumeration of
specific items implies the exclusion of others not mentioned).
10
11
See, e.g., Board of County Commissioners of Monroe County v.
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Department of Community Affairs, 560 So. 2d 240 (Fla. 3d DCA 1990) (in
construing a statute, courts cannot attribute to the legislature an intent
beyond that expressed).
AGO 11-19 – September 21, 2011
SCHOOL BOARDS – PERSONNEL – ASSESSMENTS –
SUPERINTENDENT – PUBLIC RECORDS
PERSONNEL ASSESSMENT AS PUBLIC RECORD WHEN NOT
CREATED IN COMPLIANCE WITH STATUTE
To: Mr. Stephen W. Johnson, Counsel for the School Board of Lake
County, Florida
QUESTION:
May the School Board of Lake County remove from a personnel
file or destroy an assessment of professional performance
standards for an assistant superintendent that was not filed by
the school superintendent in accordance with the requirements
of section 1012.34(3)(c), Florida Statutes?
SUMMARY:
An Assessment of Professional Performance Standards, District
Administrative Appraisal I for an Assistant Superintendent that
was not filed in accordance with the requirements of section
1012.34(3)(c), Florida Statutes, is a public record and part of
the assistant superintendent’s personnel file which may not be
removed from public view or destroyed.
According to your letter, in November of 2008, the Superintendent
of Schools for Lake County prepared an Assessment of Professional
Performance Standards, District Administrative Appraisal I for an
Assistant Superintendent, and, without discussing the assessment with
him, filed the assessment with the human resources department. This
was done on the Superintendent’s last day of her elected term. The
employee has objected to this assessment being placed in his personnel
file in light of the superintendent’s failure to comply with section
1012.34(3)(c), Florida Statutes, which requires that such an evaluation
be discussed with the employee. The school district’s human resources
department has attached a memo to the assessment explaining the
situation, but the employee is not satisfied with this remedy and has
requested that the assessment be removed from the personnel file or
destroyed. You have acknowledged that this evaluation meets the
criteria to be considered a public record and that if this record is uniquely
applicable to an employee, it must remain part of that employee’s
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personnel file. I concur in your determination.
For purposes of Florida’s Public Records Law, the term “public
records” is defined in section 119.011(12), Florida Statutes:
“Public records” means all documents, papers, letters, maps,
books, tapes, photographs, films, sound recordings, data
processing software, or other material, regardless of the
physical form, characteristics, or means of transmission, made
or received pursuant to law or ordinance or in connection with
the transaction of official business by any agency.1
The Florida Supreme Court has determined that the definition
of “public records” encompasses all material received by an agency
in connection with official business that is used to perpetuate,
communicate, or formalize knowledge.2 All such material, regardless
of whether it is in final form, is open for public inspection and copying
unless the Legislature has exempted it from disclosure.3
The record prepared by the superintendent relating to the assistant
superintendent is clearly a public record. It was prepared by a school
system officer pursuant to law in connection with the transaction of
official business of the school district. As a public record, this material
must be maintained by the school district for inspection and copying
subject to rules promulgated by the Division of Library and Information
Services for retention and disposal.4
Florida law requires that public school system employee personnel
files5 be maintained as prescribed in section 1012.31, Florida Statutes,
which states that employee personnel files are subject to the provisions
of Florida’s Public Records Law with certain specific exceptions.6 In
addition, section 1012.31(2)(a), Florida Statutes, requires that “[m]
aterials relating to work performance . . . must be reduced to writing and
signed by a person competent to know the facts or make the judgment.”
The definition of “personnel file” is broad and includes:
all records, information, data, or materials maintained
by a public school system, in any form or retrieval system
whatsoever, with respect to any of its employees, which is
uniquely applicable to that employee whether maintained in
one or more locations.7
Regardless of whether this material constitutes an “Assessment of
Professional Performance Standards, District Administrative Appraisal
I” for the assistant superintendent, this material is uniquely applicable
to a particular employee or officer and, as such, it is part of the assistant
superintendent’s personnel file and subject to the Public Records Law
whether it is maintained in a file in the human resources department or
elsewhere.
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In Attorney General Opinion 94-54, this office considered the removal
of material from employee personnel files pursuant to collective
bargaining agreements. The opinion concludes that such material
as counseling slips and written reprimands could not be placed
and maintained in separate disciplinary files to remove them from
public access. The general rule regarding personnel records of public
employees is the same as that for other public records. That is, unless
the Legislature has expressly exempted an agency’s personnel records
from disclosure or authorized an agency or public entity to limit access
to such records, personnel records of public employees are subject to
public inspection under section 119.07(1), Florida Statutes.8 Moreover,
a public agency may not remove or delete material or information from
a public record in the absence of express statutory authorization.9
Therefore, while you have advised this office that the assessment for
the assistant superintendent which is currently in his personnel file
was not submitted in full compliance with the statutory requirements
of section 1012.34(3)(c), Florida Statutes, the record itself appears to
be no less a public record for this failure and may not be removed from
public view or destroyed in the absence of statutory authority. Further,
the definition of “personnel file” in section 1012.31(4), Florida Statutes,
is so broad that any material maintained by the school system with
respect to the assistant superintendent which is uniquely applicable to
that employee “whether maintained in one or more locations” is a part
of his personnel file and removing such material to another location
would not result in its removal from the personnel file.
I would note that section 1012.34(3)(c), Florida Statutes, provides a
remedy for school district employees who wish to respond to written
performance assessments. The statute states that “[t]he employee shall
have the right to initiate a written response to the evaluation, and the
response shall become a permanent attachment to his or her personnel
file.” While it appears that the Lake County School District itself has
attached a memo to the assessment explaining the circumstances,
the school district may wish to advise the employee that he may also
include a statement in response to the assessment to be included in his
personnel file.
In sum, it is my opinion that an Assessment of Professional
Performance Standards, District Administrative Appraisal I for an
Assistant Superintendent that was not filed in accordance with the
requirements of section 1012.34(3)(c), Florida Statutes, is a public
record and part of the assistant superintendent’s personnel file which
may not be removed from public view or destroyed.
See s. 119.011(2), Fla. Stat., defining the term “[a]gency” to mean
“any state, county, district, authority, or municipal officer, department,
division, board, bureau, commission, or other separate unit of government
created or established by law including, for the purposes of this chapter,
1
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the Commission on Ethics, the Public Service Commission, and the
Office of Public Counsel, and any other public or private agency, person,
partnership, corporation, or business entity acting on behalf of any public
agency.”
See Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc., 379
So. 2d 633 (Fla. 1980).
2
See Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla.
1979).
3
Section 119.021(2)(a), Florida Statutes, requires the Division of
Library and Information Services of the Department of State to adopt
rules establishing retention schedules and a disposal process for public
records.
4
Pursuant to s. 1012.31(4), Fla. Stat., the term “personnel file” means
“all records, information, data, or materials maintained by a public school
system, in any form or retrieval system whatsoever, with respect to any
of its employees, which is uniquely applicable to that employee whether
maintained in one or more locations.”
5
6
See s. 1012.31(3)(a), Fla. Stat.
7
Section 1012.31(4), Fla. Stat.
See Michel v. Douglas, 464 So. 2d 545 (Fla. 1985). And see Alterra
Healthcare Corporation v. Estate of Shelley, 827 So. 2d 936, 940n.4 (Fla.
2002) (“only the custodian of such records can assert any applicable
exemption; not the employee”).
8
See Op. Att’y Gen. Fla. 90-104 (1990) (data processing company’s desire
to maintain “privacy” of certain materials filed with the Department
of State has no effect unless such materials fall within a legislatively
created exemption to Ch. 119, Fla. Stat.).
9
AGO 11-20 – September 21, 2011
BUSINESS LICENSE TAX – TAXATION – OCCUPATIONS –
FIREARMS – MUNICIPALITIES – ORDINANCES
VALIDITY OF MUNICIPAL BUSINESS LICENSE TAX
ORDINANCE INCLUDING GUNSMITHS AND GUN DEALERS
To: Mr. Lonnie Groot, City Attorney, City of Sanford
QUESTION:
In light of the enactment of Chapter 2011-109, Laws of Florida,
may the City of Sanford continue to impose a local business
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tax as authorized by Chapter 205, Florida Statutes, upon gun
dealers and gunsmiths?
SUMMARY:
While Chapter 2011-109, Laws of Florida, preempts to the
state the entire field of regulation of firearms, it does not affect
the authority of a municipality to impose a local business tax as
authorized by Chapter 205, Florida Statutes, upon businesses,
professions, or occupations including gun dealers and gunsmiths.
According to your letter, the city is proceeding to amend the City Code
of the City of Sanford to bring the code into compliance with Chapter
2011-109, Laws of Florida. You advise that you are in doubt whether
the city may continue to impose the local business tax, as authorized by
Chapter 205, Florida Statutes, upon gun dealers and gunsmiths. The
city’s code provisions setting forth a schedule of license taxes states that
“[t]he amount of license [sic] tax1 levied and imposed upon every person
that shall engage in or manage any occupation, business or profession
mentioned in this section within the City is hereby fixed, graded and
determined as to the following occupations, businesses or professions
at the following amounts” and specifically includes gun dealers and
gunsmiths within its scope. As you are aware, this office will not
comment on the validity of the terms of local legislation but is limited to
addressing questions of state law.2
Chapter 205, Florida Statutes, is the “Local Business Tax Act.”3
Section 205.042, Florida Statutes, authorizes the governing body of
a municipality to levy, by appropriate resolution or ordinance, a local
business tax (formerly referred to as an occupational license tax) for
the privilege of engaging in or managing any business, profession, or
occupation within its jurisdiction. Any such tax must be based upon
reasonable classifications and must be uniform throughout any class.4
The statute provides that the occupational license tax may be levied on:
(1) Any person who maintains a permanent business location
or branch office within the municipality, for the privilege of
engaging in or managing any business within its jurisdiction.
(2) Any person who maintains a permanent business location
or branch office within the municipality, for the privilege of
engaging in or managing any profession or occupation within
its jurisdiction.
(3) Any person who does not qualify under subsection (1) or
subsection (2) and who transacts any business or engages in
any occupation or profession in interstate commerce, if the
business tax is not prohibited by s. 8, Art. I of the United States
Constitution.5
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Adoption of a business tax ordinance or resolution requires public notice
and such notice must contain “the proposed classifications and rates
applicable to the business tax.”6
As defined in the statute, the term “[l]ocal business tax” refers to
. . . the fees charged and the method by which a local governing
authority grants the privilege of engaging in or managing
any business, profession, or occupation within its jurisdiction.
It does not mean any fees or licenses paid to any board,
commission, or officer for permits, registration, examination, or
inspection. Unless otherwise provided by law, these are deemed
to be regulatory and in addition to, but not in lieu of, any local
business tax imposed under the provisions of this chapter.
This definition clearly distinguishes the “local business tax” from
fees or licenses which may be regulatory and which may be levied in
addition to the local business tax imposed pursuant to Chapter 205,
Florida Statutes.
The local business tax authorized to be levied by municipalities by
Chapter 205, Florida Statutes, is not directed at regulating firearms or
those whose businesses may involve firearms such as gunsmiths or gun
dealers. This tax is a license or privilege tax levied on the privilege of
conducting business in a jurisdiction and applies equally throughout
classifications of businesses.7 As the local business license tax is not a
regulation or a regulatory tax, it would not constitute a “regulation” of
gunsmiths or gun dealers.
Chapter 2011-109, Laws of Florida, amended provisions of Chapter
790, Florida Statutes, and is specifically intended to preempt “the entire
field of regulation of firearms.” As stated in section 790.33(1), Florida
Statutes:
PREEMPTION. —Except as expressly provided by the State
Constitution or general law, the Legislature hereby declares
that it is occupying the whole field of regulation of firearms
and ammunition, including the purchase, sale, transfer,
taxation, manufacture, ownership, possession, storage, and
transportation thereof, to the exclusion of all existing and
future county, city, town, or municipal ordinances or any
administrative regulations or rules adopted by local or state
government relating thereto. Any such existing ordinances,
rules, or regulations are hereby declared null and void.8
The language of preemption contained in section 790.33(1), Florida
Statutes, providing that the Legislature has determined to occupy “the
whole field” of firearms regulation is expansive. The statute specifically
includes “the purchase, sale, transfer, taxation, manufacture,
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ownership, possession, storage, and transportation” of firearms, but
does not limit its application to those activities. The clear statement
that the Legislature is occupying the whole field of firearms regulation
and the use of the term “includes” to imply a broad reading of the
activities covered rather than limiting those to a specific list suggest a
comprehensive preemption. However, while the preemption is broad,
“the whole field of regulation,” is, by its terms, limited to firearms
regulation.
As discussed herein, a local business tax levied pursuant to Chapter
205, Florida Statutes, is not a regulation or regulatory tax and it is
my opinion that a municipality may impose a local business tax upon
classifications of businesses which may include gunsmiths or gun dealers.
However, in drafting local business tax ordinances, municipalities must
be mindful that the provision of a local business tax may only impose
restrictions or burdens on firearms-related businesses to the same
extent that any other similar business may be burdened.
In sum, it is my opinion that while section 790.33, Florida Statutes,
as amended by Chapter 2011-109, Laws of Florida, preempts the entire
field of regulation of firearms to the state, it does not affect the authority
of a municipality to impose a local business tax as authorized by Chapter
205, Florida Statutes, upon businesses, professions, or occupations
which may include gun dealers and gunsmiths.
Chapter 2006-152, Laws of Fla., changed the name of the “local
occupational license tax act” to the “local business tax act.”
1
Section 16.01(3), Fla. Stat. Based on the material included with your
opinion request, I would direct the city’s attention to s. 790.335, Fla. Stat.,
which prohibits any local governmental agency from keeping or causing
to be kept “any list, record, or registry of privately owned firearms or any
list, record, or registry of the owners of those firearms.”
2
3
Section 205.013, Fla. Stat.
4
Section 205.043(1)(a), Fla. Stat.
5
Section 205.042, Fla. Stat.
6
Id.
See, e.g., the City of Tallahassee’s Code of Ordinances which in section
18-55, establishes such business classifications as “automobile and other
vehicular activities,” “banking and lending institutions,” “entertainment/
amusement,” “merchant,” “professional,” “schools,” and “services.” For
purposes of section 18-56 of the Tallahassee Code establishing a business
tax rate schedule, business classifications such as those imposed on
merchants are based on the square footage of the business location plus a
7
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fee based on the number of workers employed.
And see s. 790.33(4), Fla. Stat., containing exceptions to the section and
making it clear that the statute does not prohibit zoning ordinances which
encompass firearms businesses along with other businesses. However,
zoning ordinances which are designed for the purpose of restricting or
prohibiting the sale, purchase, transfer, or manufacture of firearms or
ammunition as a method of regulating firearms or ammunition are in
conflict with the statute and are prohibited.
8
AGO 11-21 – October 4, 2011
SPECIAL DISTRICTS – COMPETITIVE BIDS – PUBLIC
CONSTRUCTION – WATER MANAGEMENT DISTRICTS –
CONSULTANTS COMPETITIVE NEGOTIATION ACT
WHETHER SPECIAL DISTRICT IS AUTHORIZED TO DEVELOP
HYBRID BIDDING PROCEDURE FOR PUBLIC
CONSTRUCTION PROJECTS
To: Mr. H. Paul Senft, Jr., Chair, Southwest Florida Water Management
District
QUESTION:
Whether the Southwest Florida Water Management District
may lawfully use a “hybrid” process to award construction
projects, including construction and construction management
services, when that process combines a request for bids or
proposals with competitive negotiation such that the lowest
or best responsive bidder is selected and then competitive
negotiations are begun in an effort to arrive at a final project
or service cost?
SUMMARY:
The Southwest Florida Water Management District is limited
to utilizing the procedures set forth in the statutes for public
construction works and for construction management services.
The district has no authority to develop a “hybrid” model for
awarding construction projects in the absence of statutory
authority.
The Southwest Florida Water Management District was created
by section 373.069(1)(d), Florida Statutes, as an independent special
district1 controlled by a governing board of 13 members.2 Your letter
advises that the governing board of the district has been reviewing
the process the district uses to procure construction projects and
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construction management services. The district is considering adopting
a policy which would combine sealed bids (or requests for proposals) and
competitive negotiations in a process that would allow selection of the
lowest responsive bidder and then authorize competitive negotiations to
arrive at a final project or service cost.3 Your attorney has opined that
the statutes governing procurement methods for construction projects
and construction management services (sections 255.20 and 287.055,
Florida Statutes), while containing provisions which would provide
some flexibility in the process, would not allow competitive negotiations
to be combined with another method of procurement such as requests
for sealed bids. I concur in that conclusion.
It is the general rule with regard to competitive bidding by public
agencies that, in the absence of any legislative requirements regarding
the method of awarding public contracts, public officers may exercise
reasonable discretion, and a contract may be made by any practicable
method that will safeguard the public interest.4 The statutory directives
requiring special districts to competitively award contracts for public
construction projects are contained in sections 255.20 and 287.055,
Florida Statutes.
Section 255.20(1), Florida Statutes, provides that:
A . . . special district as defined in chapter 189,5 or other political
subdivision6 of the state seeking to construct or improve a public
building, structure, or other public construction works must
competitively award to an appropriately licensed contractor
each project that is estimated in accordance with generally
accepted cost accounting principles to cost more than $300,000.7
. . . . As used in this section, the term “competitively award”
means to award contracts based on the submission of sealed
bids, proposals submitted in response to a request for proposal,
proposals submitted in response to a request for qualifications,
or proposals submitted for competitive negotiation. This
subsection expressly allows contracts for construction
management services, design/build contracts, continuation
contracts based on unit prices, and any other contract
arrangement with a private sector contractor permitted by
any applicable municipal or county ordinance, by district
resolution, or by state law. For purposes of this section, cost
includes the cost of all labor, except inmate labor, and the cost
of equipment and materials to be used in the construction of the
project. Subject to the provisions of subsection (3),8 the county,
municipality, special district, or other political subdivision may
establish, by municipal or county ordinance or special district
resolution, procedures for conducting the bidding process.
Section 255.20(1)(d), Florida Statutes, provides further direction:
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If the project:
1. Is to be awarded based on price, the contract must be
awarded to the lowest qualified and responsive bidder in
accordance with the applicable county or municipal ordinance
or district resolution and in accordance with the applicable
contract documents. The county, municipality, or special
district may reserve the right to reject all bids and to rebid the
project, or elect not to proceed with the project. This subsection
is not intended to restrict the rights of any local government
to reject the low bid of a nonqualified or nonresponsive bidder
and to award the contract to any other qualified and responsive
bidder in accordance with the standards and procedures of any
applicable county or municipal ordinance or any resolution of a
special district.
2. Uses a request for proposal or a request for qualifications,
the request must be publicly advertised and the contract must
be awarded in accordance with the applicable local ordinances.
3. Is subject to competitive negotiations, the contract must be
awarded in accordance with s. 287.055.
The statute requires that a special district “must” competitively
award these contracts. The word “must” generally does not allow
for any choice when used in a statute and denotes compulsion,
obligation, or requirement.9 The general rule is that where language
is unambiguous, the clearly expressed intent must be given effect, and
there is no room for construction.10 Where the statutory language is
plain, definite in meaning without ambiguity, it fixes the legislative
intention and interpretation and construction are not needed.11 Thus,
the Southwest Florida Water Management District is required by
statute to competitively award such contracts pursuant to the terms of
section 255.20, Florida Statutes.
The statute contains flexibility within its terms regarding the type
of procedure to be used in competitively awarding such contracts, that
is, the definition of “competitively award” contains several options. In
addition, section 255.20, Florida Statutes, authorizes a special district
to establish procedures for conducting the bidding process, but the
district is limited to using the competitive award process outlined in
section 255.20, Florida Statutes, for construction works. The power of
a special district to adopt such resolutions is limited by the nature of
special districts to those powers and duties set forth by the Legislature
in the enabling legislation of the district and the statutes.12
The Legislature has directed that these procedures are to be used
separately and distinctly based on the type of negotiations involved in
bidding the project: competitive negotiations, requests for proposal or
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requests for qualifications, or lowest qualified and responsive bidder.
Except to the extent authorized by the statute itself, each of these
distinct procedures for selecting a contractor for public construction
works should be utilized to secure bids for the particular types of
projects to be awarded, that is, contracts for professional services as
described in section 287.055, Florida Statutes, are subject to competitive
negotiations, while construction contracts for public works must be
competitively awarded.
With regard to the selection of construction management or program
management entities to provide services to a special district, section
255.103, Florida Statutes, states that
A governmental entity13 may select a construction management
entity, pursuant to the process provided by s. 287.055, which
is to be responsible for construction project scheduling
and coordination in both preconstruction and construction
phases and generally responsible for the successful, timely,
and economical completion of the construction project. The
construction management entity must consist of or contract
with licensed or registered professionals for the specific fields or
areas of construction to be performed, as required by law. The
construction management entity may retain necessary design
professionals selected under the process provided in s. 287.055.
At the option of the governmental entity, the construction
management entity, after having been selected and after
competitive negotiations, may be required to offer a guaranteed
maximum price and a guaranteed completion date or a lump
sum price and a guaranteed completion date, in which case, the
construction management entity must secure an appropriate
surety bond pursuant to s. 255.05 and must hold construction
subcontracts. If a project, as defined in s. 287.055(2)(f),
solicited by a governmental entity under the process provided
in s. 287.055 includes a grouping of substantially similar
construction, rehabilitation, or renovation activities as
permitted under s. 287.055(2)(f), the governmental entity,
after competitive negotiations, may require the construction
management entity to provide for a separate guaranteed
maximum price or a separate lump sum price and a separate
guaranteed completion date for each grouping of substantially
similar construction, rehabilitation, or renovation activities
included within the project.
The statute also recognizes that “[t]his section does not prohibit a
local government from procuring construction management services,
including the services of a program management entity, pursuant to
the requirements of s. 255.20.”
Sections 255.103, 255.20, and 287.055, Florida Statutes, must be
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read to work together to provide direction relating to the particular
type of construction related service being bid. While these statutes
provide flexibility within their terms as to procedures for conducting
the bidding process, the district has no authority to develop a process
for awarding public construction works outside the statutory direction
of section 255.20, Florida Statutes, in the absence of any other statutory
authority. It is the rule that a legislative direction as to how a thing
shall be done is, in effect, a prohibition against its being done in any
other way.14
As a statutorily created entity, the Southwest Florida Water
Management District has only such power as is expressly or by necessary
implication granted by the legislative enactment creating the district.15
Unlike counties or municipalities which have been granted home rule
powers, special districts possess no inherent or home rule powers.
Created by statute for a specific, limited purpose, the Southwest Florida
Water Management District may exercise only such power and authority
as it has been granted by law.16 Thus, the district is limited to utilizing
the procedures outlined by the Legislature for public construction works
in section 255.20, Florida Statutes, and to section 287.055, Florida
Statutes, when proposing to acquire professional services. Section
255.103, Florida Statutes, contemplates the use of section 255.20 or
287.055, Florida Statutes, to select a construction management firm.
While sections 255.20 and 255.103, Florida Statutes, both contemplate
the use of the CCNA for certain construction projects, the statutory
direction as to how the CCNA must be used in these circumstances
would preclude the district from developing a hybrid model distinct
from the statutory models.
Thus, it is my opinion that the Southwest Florida Water Management
District has no authority to develop a “hybrid” model for awarding
construction projects in the absence of statutory authority.
See Florida Department of Community Affairs, Official List of Special
Districts Online, Southwest Florida Water Management District.
1
2
Section 373.073(1)(a), Fla. Stat.
This opinion is expressly limited to a consideration of your authority
as a special district to develop a bidding process involving the procedures
you have described in your opinion request. While you have provided
this office with a copy of an article from a business publication discussing
a bidding procedure utilized by another governmental entity, nothing in
this opinion should be understood to address or comment on the bidding
process utilized by another agency.
3
See, e.g., Volume Services Division of Interstate United Corporation v.
Canteen Corporation, 369 So. 2d 391 (Fla. 2d DCA 1979) (in the absence
of specific constitutional or statutory requirements, a public agency has
4
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no obligation to establish a bidding procedure and may contract in any
manner not arbitrary or capricious), and see Ops. Att’y Gen. Fla. 96-28
(1996), 93-28 (1993), and 93-83 (1993) and the cases cited therein.
5
Section 189.403(1), Fla. Stat., defines “[s]pecial district” as
a local unit of special purpose, as opposed to general purpose,
government within a limited boundary, created by general
law, special act, local ordinance, or by rule of the Governor and
Cabinet. The special purpose or purposes of special districts are
implemented by specialized functions and related prescribed
powers. For the purpose of s. 196.199(1), special districts shall
be treated as municipalities. The term does not include a school
district, a community college district, a special improvement
district created pursuant to s. 285.17, a municipal service
taxing or benefit unit as specified in s. 125.01, or a board which
provides electrical service and which is a political subdivision
of a municipality or is part of a municipality.
The Southwest Florida Water Management District would fall within the
scope of this definition.
A “political subdivision” is defined in s. 1.01(8), Fla. Stat., as follows:
“The words ‘public body,’ ‘body politic,’ or ‘ political subdivision’ include
counties, cities, towns, villages, special tax school districts, special road
and bridge districts, bridge districts, and all other districts in this state.”
6
7
As you have cited specifically to s. 255.20, Fla. Stat., in your letter I
assume that the projects proposed to be awarded are within the financial
amounts described in the statute.
Section 255.20(3), Fla. Stat., requires the use of Florida forest products
and timber for construction projects if such products are available and
their price, fitness, and quality “are equal.”
8
See Mallory v. Harkness, 895 F.Supp. 1556 (S.D. Fla. 1995); Op. Att’y
Gen. Fla. 07-42 (2007).
9
Fine v. Moran, 77 So. 533, 536 (Fla. 1917); M.W. v. Davis, 756 So. 2d 90
(Fla. 2000).
10
11
McLaughlin v. State, 721 So. 2d 1170 (Fla. 1998); Osborne v. Simpson,
114 So. 543 (Fla. 1927); Ops. Att’y Gen. Fla. 00-46 (2000) (where language
of statute is plain and definite in meaning without ambiguity, it fixes the
legislative intention such that interpretation and construction are not
needed); 99-44 (1999); and 97-81 (1997).
See State ex rel. Vans Agnew v. Johnson, 150 So. 111 (Fla. 1933), for
the proposition that the powers of a water control district are restricted
to those deemed essential by the Legislature to effect its purpose; State
ex rel. Davis v. Jumper Creek Drainage District, 14 So. 2d 900 (Fla.
12
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1943), affirmed, 21 So. 2d 459 (Fla. 1945); Rabin v. Lake Worth Drainage
District, 82 So. 2d 353 (Fla. 1955), cert. denied, 350 U.S. 958 (1956);
Roach v. Loxahatchee Groves Water Control District, 417 So. 2d 814 (Fla.
4th DCA 1982), affirmed, 421 So. 2d 49 (Fla. 4th DCA 1982), indicating
that a water control district has only those powers which the Legislature
has delegated to it by statute. Cf. Ops. Att’y Gen. Fla. 04-48 (2004) (as
entity created pursuant to legislative act, water control districts may only
exercise such powers as have been expressly granted by that act or must
necessarily be exercised in order to carry out an express power); and 8344 (1983).
See s. 255.103(1), Fla. Stat., defining “governmental entity” to include
special districts as defined in Ch. 189, Fla. Stat., or political subdivisions
of the statute.
13
14
Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle
Hotel, 56 So. 2d 341, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815,
817 (Fla. 1976). In this regard you have cited Attorney General Opinion
96-28, in which this office concluded that the provisions of s. 255.20, Fla.
Stat., should be read together with the minimum procedures for letting
contracts for works and improvements by drainage and water control
districts set forth in s. 298.35, Fla. Stat. However, s. 298.35, Fla. Stat.,
was repealed in 1997 and no provision of Ch. 373, Fla. Stat., establishes
bidding requirements for the Southwest Florida Water Management
District.
See Lee v. Division of Florida Land Sales and Condominiums, 474 So.
2d 282 (Fla. 5th DCA 1985); Ops. Att’y Gen. Fla. 09-40 (2009) and 91-93
(1991).
15
Cf. Op. Att’y Gen. Fla. 90-63 (1990). And see Forbes Pioneer Boat Line
v. Board of Commissioners of Everglades Drainage District, 82 So. 346
(Fla. 1919).
16
AGO 11-22 – October 26, 2011
AIRPORTS – COUNTIES – LEASE OF COUNTY PROPERTY
AUTHORITY OF COUNTY TO LEASE AIRPORT PROPERTY FOR
A TERM IN EXCESS OF 30 YEARS
To: Mr. Mark F. Lapp, Hendry County Attorney
QUESTION:
Pursuant to section 125.35(1)(b)1., Florida Statutes, may the
county negotiate a lease of its airport property to a private
party for use as a public airport for a term in excess of 30 years,
notwithstanding section 332.08(3), Florida Statutes?
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SUMMARY:
Section 125.35(1)(b)1., Florida Statutes, authorizes the county
to negotiate a lease of its airport property to a private party for
a length of term and under such conditions the board of county
commissioners determines is in the best interest of the county.
You state that Hendry County has filed a preliminary application
to participate in a federal airport privatization program, but that no
final approval has been given.1 In October 2010, the Federal Aviation
Authority (FAA) accepted Hendry County’s preliminary application into
the Airport Privatization Pilot Program.2 It is your understanding that
the FAA will entertain a final application when it is filed by the county,
but approval is not certain. The county questions, however, whether
it may negotiate the lease of airport property for a term in excess of 30
years for the privatization of its airport.
Section 125.35(1), Florida Statutes, states:
(a) The board of county commissioners is expressly authorized
to sell and convey any real or personal property, and to lease
real property, belonging to the county, whenever the board
determines that it is to the best interest of the county to do
so, to the highest and best bidder for the particular use the
board deems to be the highest and best, for such length of term
and such conditions as the governing body may in its discretion
determine.
(b) Notwithstanding the provisions of paragraph (a), the board
of county commissioners is expressly authorized to:
1.
Negotiate the lease of an airport or seaport facility;
2. Modify or extend an existing lease of real property for an
additional term not to exceed 25 years, where the improved
value of the lease has an appraised value in excess of $20
million; or
3. Lease a professional sports franchise facility financed by
revenues received pursuant to s. 125.0104 or s. 212.20;
under such terms and conditions as negotiated by the board.
(e.s.)
Section 125.35(1)(b)1., Florida Statutes, has been interpreted by
this office to allow a board of county commissioners to lease county
airport property for a term determined by the commission to be in the
best interest of the county.3 While section 332.08, Florida Statutes,4
makes provisions for the lease of airport property by municipalities,5
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this office has concluded that the more recent and specific provisions in
section 125.35, Florida Statutes, dealing particularly with the power of
counties to lease airport facilities, apply when a county is contemplating
the lease of such property.6
Thus, pursuant to section 125.35(1)(b)1., Florida Statutes, Hendry
County is authorized to negotiate the lease of its airport property to a
private party for a term in excess of 30 years and under such conditions
as the board of county commissioners determines within its discretion
is in the best interest of the county.
1
In Op. Att’y Gen. Fla. 11-11 (2011), this office concluded that Hendry
County was authorized to sell the county airport to a private entity, but
such sale would be subject to the competitive bidding process in s. 125.35,
Fla. Stat. You have clarified that the federal government has not agreed
to the sale, nor has it waived operation of a reversionary clause in the deed
to the county. You do not ask, nor does this office express any comment
on whether this clarification would affect the conclusion reached in Op.
Att’y Gen. Fla. 11-11 (2011).
2
See 49 U.S.C. s. 47134.
See Ops. Att’y Gen. Fla. 99-35 (1999) (board of county commissioners
may negotiate lease for an airport facility without competitive bid for
such length of term and under such conditions as the governing body in
its discretion determines to be beneficial to the county) and 94-96 (1994)
(section 125.35[1][a], Fla. Stat., authorizes the county to grant a lease of
airport property to a private party for a term of more than 30 years).
3
4
Section 332.08(3), Fla. Stat.
Section 332.01(1), Fla. Stat., defines “[m]unicipality” for purposes of
Ch. 332, Fla. Stat., to include “any county, city, village, or town of this
state.”
5
See Op. Att’y Gen. Fla. 94-96 (1994). And see s. 8, Ch. 22846, Gen.
Laws of Fla. (1945), creating s. 332.08, Fla. Stat., and s. 1, Ch. 23829,
Gen. Laws of Fla. (1947), creating s. 125.35, Fla. Stat. While s. 125.35,
Fla. Stat., has been subsequently amended by Ch. 99-190, Laws of Fla.,
to clarify local governments’ authority to lease airport property since the
1994 opinion was issued, such amendment does not alter the county’s
authority; compare to the latest amendment to section 332.08, Fla. Stat.,
which occurred in s. 231, Ch. 71-136, Laws of Fla., making violation of
county-imposed airport regulations a misdemeanor of the second degree,
punishable as provided in ss. 775.082 or 775.083, Fla. Stat. See also
Florida Association of Counties, Inc. v. Department of Administration,
Division of Retirement, 580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595
So. 2d 42 (Fla. 1992) (general rule is that in cases of conflicting statutory
provisions, latter expression will prevail over former).
6
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AGO 11-23 – December 5, 2011
COUNTIES – SUBSTANCE ABUSE AND MENTAL HEALTH
SERVICES – CHILDREN AND FAMILY SERVICES,
DEPARTMENT OF – AUDITS – APPROPRIATIONS
COUNTY’S ROLE IN IMPLEMENTATION OF SUBSTANCE
ABUSE AND MENTAL HEALTH SERVICES REQUIREMENTS IN
THE COUNTY’S DISTRICT
To: Mr. George G. Angeliadis, Sumter County Attorney
QUESTIONS:
1. What is the formula, and source of data represented
therein, utilized to calculate the county’s portion of “local
matching funds” required by section 394.76, Florida Statutes?
2. Are “in-kind” contributions by the county considered in
determining the county’s contribution pursuant to section
394.76, Florida Statutes?
3. May the county require disclosure of financial reports and
sources of other funding to validate data used in the formula to
determine “local matching funds?”
4. Does the county possess oversight of an entity requesting
“local matching funds,” such as participation in the operational
or budget review or approval process of such entity?
5. May “in-kind” contributions be used to offset the county’s
matching funds obligation?
6. Who is required to establish the level, source, or availability
of other local matching funds when there is a dispute as to the
level of funding to be provided by the county?
SUMMARY:
1. Section 394.76(3)(b), Florida Statutes, requires local
participation on a 75-to-25 percent state-to-local ratio of funding
for all contracted community alcohol and mental health services,
except those programs specifically identified in the statute and
those specified in section 394.457(3), Florida Statutes.
2. & 5. “In-kind”
contributions
are
recognized
by
administrative rule as satisfying requirements for matching
funds.
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3. & 4. A local governing body is statutorily required to have
an annual audit performed on the expenditure of public funds
it has provided to carry out the provisions of the act to ensure
that such funds are expended only for substance abuse or
mental health purposes. No other statutory provision appears
to grant local governing bodies oversight of the operation or
other financial activities of a substance abuse or mental health
services provider.
6. While the act contemplates that a county will have input into
the development of a district plan for the provision of substance
abuse and mental health services and is one of the enumerated
parties that must approve the plan, ultimately, the legislative
appropriation to the Department of Children and Family
Services will determine the level of local match participation
by a county. The district administrator is authorized to require
changes to bring the district plan into compliance with the
statutory requirements and any dispute between the district
administrator and the district board, including the projected
budget, is to be resolved by the department’s secretary.
You state that Sumter County has received a request for funding
from a non-profit provider of mental health, crisis stabilization, and
Baker Act services to citizens of Sumter County and Lake County.
Currently, such providers submit requests to the county, then await
approval through the budget hearing process. Sumter County, however,
is unable to determine whether its share of the funding amount to the
provider is affected by other sources of funding such as its “in-kind”
contribution of physical space to the provider, or by the fact that the
provider’s services are provided to residents of two counties. The county
further believes that other forms of available local matching funds must
be identified, accounted for, and considered prior to its committing any
funds. Additionally, the county wishes to participate in the planning,
evaluation, auditing, and implementation of the programs for which it
provides funding.
QUESTIONS 1. & 6.
Part IV of Chapter 394, Florida Statutes, is “The Community
Substance Abuse and Mental Health Services Act” (act).1 Section
394.76, Florida Statutes, addresses the financing of district programs
and services under the act and specifies the means to determine the
local match funding level, if such level is not provided in the General
Appropriations Act or the substantive bill implementing the General
Appropriations Act. Section 394.76(9)(a), Florida Statutes, states:
State funds for community alcohol and mental health services
shall be matched by local matching funds as provided in
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paragraph (3)(b). The governing bodies within a district or
subdistrict shall be required to participate in the funding of
alcohol and mental health services under the jurisdiction of
such governing bodies. The amount of the participation shall
be at least that amount which, when added to other available
local matching funds, is necessary to match state funds. (e.s.)
The term “[l]ocal matching funds” is defined as “funds received from
governing bodies of local government, including city commissions,
county commissions, district school boards, special tax districts, private
hospital funds, private gifts, both individual and corporate, and bequests
and funds received from community drives or any other sources.”2
Generally, with enumerated exceptions that do not require local match
funds,3 “[a]ll other contracted community alcohol and mental health
services and programs, except as identified in s. 394.457(3),4 shall
require local participation on a 75-to-25 state-to-local ratio.”5
Thus, the plain language of the statute mandates that state funds
appropriated for community alcohol and mental health services shall
be matched by local governing bodies and directs that the formula for
determining the local match funds is based upon the state providing
75% of the funding for programs subject to local matching funds, with
the remaining 25% match provided by the local sources available for
matching funds.
As referenced above, the governing bodies within a district or a
subdistrict must participate in the funding of alcohol and mental health
services under the jurisdiction of such governing bodies and the amount
of their participation must be at least that amount which, when added
to other available local matching funds, is necessary to match state
funds. The statute, therefore, clearly acknowledges that there may
be multiple sources for contributing to the local match amount and, in
defining local matching funds, gives an open-ended range of sources
that may be included.
Further, as in this instance where two counties within a service
district are to be served by a provider, section 394.73(3), Florida
Statutes, states:
When a service district comprises two or more counties or
portions thereof, it is the obligation of the planning council to
submit to the governing bodies, prior to the budget submission
date of each governing body, an estimate of the proportionate
share of costs of alcohol, drug abuse, and mental health services
proposed to be borne by each such governing body.
The act, therefore, directs how the proportionate share of costs of a
substance abuse or mental health program will be assessed when two or
more counties receive services from such program, but does not appear
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to contemplate that an individual county has the authority to determine
the amount it must pay. This is not to say that the county is without a
voice in the overall process. Section 394.75, Florida Statutes, sets forth
the procedure for establishing state and district substance abuse and
mental health plans. Subsection (3) of the section directs the district
“health and human services board”6 to prepare an integrated district
substance abuse and mental health plan. The statute specifically
provides that the plan shall include:
(a) A record of the total amount of money available in the
district for mental health and substance abuse services.
(b) A description of each service that will be purchased with
state funds.
(c) A record of the amount of money allocated for each service
identified in the plan as being purchased with state funds.
(d) A record of the total funds allocated to each provider.
(e) A record of the total funds allocated to each provider by
type of service to be purchased with state funds.
(f) Input from community-based persons, organizations, and
agencies interested in substance abuse and mental health
treatment services; local government entities that contribute
funds to the public substance abuse and mental health treatment
systems; and consumers of publicly funded substance abuse and
mental health services, and their family members. The plan
must describe the means by which this local input occurred.
The plan shall be submitted by the district board to the district
administrator and to the governing bodies for review, comment,
and approval. 7 (e.s.)
The district plan must also include:
a procedure for securing local matching funds. Such a procedure
shall be developed in consultation with governing bodies and
service providers.8
In developing the district plan, the statute requires that “optimum
use shall be made of any federal, state, and local funds that may be
available for substance abuse and mental health service planning.
However, the department must provide these services within legislative
appropriations.”9
Thus, while a county has input in the development of a district plan
for substance abuse and mental health services, it would appear that
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the county’s level of participation by local matching funds is ultimately
determined by the Legislature’s appropriation for the Department
of Children and Family Services (DCF) to provide such services. As
reflected above, the county is involved in formulating the district plan
for delivery of services. The district administrator, however, is required
to make modifications to the district plan he or she deems necessary to
bring it into compliance with the provisions of the act.10 If the district
board and the district administrator are unable to agree on the plan,
including the projected budget, the disputed issues are to be submitted
directly to the department’s secretary for immediate resolution.11
QUESTIONS 2. & 5.
While section 394.76, Florida Statutes, does not specifically address
“in-kind” contributions in relation to local match funds, Chapter 65E,
Florida Administrative Code, administrative rules promulgated to
implement operation of the statute, provide assistance in determining
what constitutes a matching fund and how “in-kind” contributions
are counted. Among those items recognized as satisfying matching
requirements is “[t]he value of third-party funds and in-kind
contributions applicable to the matching period[.]”12 (e.s.) Moreover, the
rules allow the donated use of space to an organization, with the value
of the space as an allowable cost, and specifically recognize that “[t]he
value of the donations may be used to meet matching requirements.”13
In determining the value of a donation of equipment, building, and
land, Rule 65E-14.006(4), Florida Administrative Code, states: “The
fair market value at the time of donation of the equipment, building or
land may be counted as matching.”
This office has been advised by DCF that “in-kind” contributions
may be considered in calculating a local government’s contribution of
matching funds. Thus, in light of the fact that “in-kind” contributions
are recognized by the controlling administrative rules as a means to
satisfy requirements for matching funds and DCF’s acknowledgment
that “in-kind” contributions may be used to meet matching funds
requirements, it would appear that the county may use its “in-kind”
contributions in meeting its share of local matching funds.
QUESTIONS 3. & 4.
Section 394.76(10), Florida Statutes, authorizes a local governing
body to appropriate moneys, in lump sum or otherwise, from public
funds for the purpose of carrying out the provisions of “The Community
Substance Abuse and Mental Health Services Act.”14 The paragraph
further provides:
In addition to the payment of claims upon submission of proper
vouchers, such moneys may also at the option of the governing
body, be disbursed in the form of a lump-sum or advance
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payment for services for expenditure, in turn, by the recipient
of the disbursement without prior audit by the auditor of
the governing body. Such funds shall be expended only for
substance abuse or mental health purposes as provided in the
approved district plan. Each governing body appropriating and
disbursing moneys pursuant to this subsection shall require the
expenditure of such moneys by the recipient of the disbursement
to be audited annually either in conjunction with an audit of
other expenditures or by a separate audit. Such annual audits
shall be furnished to the governing bodies of each participating
county and municipality for their examination.15 (e.s.)
Thus, the plain language of the controlling statute requires local
governing bodies to have audits performed of the expenditure of public
funds they have provided to carry out the provisions of the act to ensure
that such funds are expended only for substance abuse or mental
health purposes. Such audits may be in conjunction with audits of
other expenditures or by a separate audit and must be furnished to the
governing bodies of each county or municipality for their examination.
I have not found, nor been referred to, any other provision in the act
which expresses any further authority of local governing bodies in
regard to audits of the operations of substance abuse and mental health
providers.
Section 394.78, Florida Statutes, places administration of the act
under DCF. The department is directed to adopt rules necessary for
the act’s administration and may adopt, among others, rules relating
to “full disclosure of revenue funds and expenses.” Thus, it may be
advisable to work with DCF in further evaluating the performance
and financial sources of mental health and substance abuse providers
within your county.16
1
Section 394.65, Fla. Stat.
2
Section 394.67(13), Fla. Stat.
3
Section 394.76(3)(b), Fla. Stat., states:
Residential and case management services which are funded
as part of a deinstitutionalization project shall not require
local matching funds and shall not be used as local matching
funds. The state and federal financial participation portions
of Medicaid earnings pursuant to Title XIX of the Social
Security Act, except for the amount of general revenue equal to
the amount appropriated in 1985-1986 plus all other general
revenue that is shifted from any other alcohol, drug abuse, and
mental health appropriation category after fiscal year 19861987 or substance abuse and mental health appropriation
category after fiscal year 2000-2001, shall not require local
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matching funds and shall not be used as local matching funds.
Local matching funds are not required for general revenue
transferred by the department into substance abuse and
mental health appropriations categories during a fiscal year
to match federal funds earned from Medicaid services provided
for mental health clients in excess of the amounts initially
appropriated. Funds for children’s services which were provided
through the Children, Youth, and Families Services budget
which did not require local match prior to being transferred to
the Substance Abuse and Mental Health Services budget shall
be exempt from local matching requirements. . . .
Section 394.457(3), Fla. Stat., authorizes the Department of Children
and Family Services to contract to provide, and be provided with, services
and facilities in order to carry out its responsibilities under the “Florida
Mental Health Act,” with, among other entities, “counties, municipalities,
and any other governmental unit, including facilities of the United States
Government.”
4
5
Section 394.76(3)(b), Fla. Stat.
A footnote relates that health and human services boards were abolished
by s. 2, Ch. 2000-139, Laws of Fla., which substantially reworded s. 20.19,
Fla. Stat. Section 20.19(6), Fla. Stat., requires the establishment of a
community alliance in each county composed of stakeholders, community
leaders, client representatives, and funders of human services “to provide
a focal point for community participation and governance of communitybased services.”
6
7
Section 394.75(3), Fla. Stat. And see s. 394.75(12), Fla. Stat, providing
that “[e]ach governing body that provides local funds has the authority
to require necessary modification to only that portion of the district plan
which affects substance abuse and mental health programs and services
within the jurisdiction of that governing body.”
8
Section 394.75(4)(h), Fla. Stat.
9
Section 394.75(7), Fla. Stat.
10
Section 394.75(11), Fla. Stat.
11
Id.
Rule 65E-14.005(1)(b), Fla. Admin. C. Cf. Rule 65E-14.005(2)(b), Fla.
Admin. C., making “[c]osts or third-party funds and in-kind contributions
that are used to satisfy a matching requirement of another State contract
or Federal grant” unallowable for matching.
12
13
Rule 65E-14.017(4)(j)2., Fla. Admin. C.
14
Section 394.65, Fla. Stat., providing the title to Part IV of Ch. 394.
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Cf. s. 394.76(5), Fla. Stat., stating: “The department [of Children and
Family Services] is authorized to make investigations and to require
audits of expenditures. The department may authorize the use of
private certified public accountants for such audits. Audits shall follow
department guidelines.” See also Rule 65E-14.003, Fla. Admin. C.,
relating to audits of contractors participating in substance abuse and
mental health programs.
15
While not posed in a question, your memorandum of law refers to Ch.
119, Fla. Stat., Florida’s Public Records Law. I would note that the right
of access to public records extends to records of private entities acting on
behalf of a public agency. See s. 119.011(2), Fla. Stat. Where a private
entity has contracted to provide services in place of a public agency, the
records generated by the private entity’s performance of that duty are
public records, subject to disclosure (absent any applicable exemption
or provision of confidentiality). See News and Sun-Sentinel Company v.
Schwab, Twitty & Hanser Architectural Group, Inc., 596 So. 2d 1029 (Fla.
1992). A copy of a standard contract used by DCF in securing services
(CF Standard Contract 06/2011) requires a provider “[t]o allow public
access to all documents, papers, letters, or other public records as defined
in subsection 119.011(12), F.S. and as prescribed by subsection 119.07(1),
F.S., made or received by the Provider in conjunction with this contract
except that public records which are made confidential by law must be
protected from disclosure.”
16
AGO 11-24 – December 9, 2011
MUNICIPALITIES – INTERLOCAL AGREEMENTS – LAW
ENFORCEMENT
AUTHORITY OF MUNICIPALITY TO PROVIDE LAW
ENFORCEMENT SERVICES TO ADJOINING MUNICIPALITIES
To: Mr. Hayward Dykes, Jr., City Attorney , City of Fort Walton Beach
QUESTION:1
Does section 166.0495, Florida Statutes, authorize the City
of Fort Walton Beach to enter into an interlocal agreement
to provide law enforcement services only to adjoining
municipalities in the same county or may it enter into an
interlocal agreement to provide law enforcement services to any
municipality, adjoining or not, located within the same county
in which the city is located?
SUMMARY:
Section 166.0495, Florida Statutes, authorizes a municipality
to enter into an interlocal agreement for the provision of law
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enforcement services with only those municipalities which
adjoin the municipality and are located within the same county
as the municipality.
Section 166.0495, Florida Statutes, provides:
A municipality may enter into an interlocal agreement pursuant
to s. 163.01 with an adjoining municipality or municipalities
within the same county to provide law enforcement services
within the territorial boundaries of the other adjoining
municipality or municipalities. Any such agreement shall
specify the duration of the agreement and shall comply with s.
112.0515, if applicable. The authority granted a municipality
under this section is in addition to and not in limitation of any
other authority granted a municipality to enter into agreements
for law enforcement services or to conduct law enforcement
activities outside the territorial boundaries of the municipality.
(e.s.)
Section 166.0495, Florida Statutes, was enacted by Chapter 97-62,
Laws of Florida. The title to the act states that it relates to municipal
government, “authorizing municipalities to enter into interlocal
agreements to provide law enforcement services within the boundaries
of adjoining municipalities within the same county[.]” While the title to
an act is not dispositive of its effect, it may be considered in determining
the intent of the Legislature.2 The legislative history of Chapter 9762, Laws of Florida, provides additional insight as to the Legislature’s
intent in its enactment.3 The sponsor of the bill, explaining its purpose,
stated that the bill would allow municipalities to enter into an interlocal
agreement with a neighboring law enforcement entity in an “adjoining
community within the same county.” Further, she explained that it
applied to “adjoining municipalities within the same county only,” then
continued that the act did not authorize “skipping over . . .[;] it has to
be an adjoining community.”4 The language in the statute has not been
amended since its enactment.
There is a rule of grammatical construction that a qualifying phrase
will modify all items listed in a series unless there is no comma between
the last of the series and the qualifying phrase.5 In this instance,
however, there are two qualifying terms, “adjoining” and “within the
same county,” which modify the intervening terms “municipality or
municipalities” which do not appear to qualify as a “series” of terms.
A “series” is “a group of usu. [usually] three or more things or events
standing or succeeding in order and having a like relationship to each
other.”6 The phrase “municipality or municipalities” appears to be in
the nature of a phrase representing selectivity between the singular
and plural, rather than a series of choices having a like relationship to
each other. Thus, the phrase “adjoining municipality or municipalities
within the same county” must be read in a common sense manner to
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mean that any municipality entering into an interlocal agreement
for law enforcement services must meet the criteria of adjoining the
municipality providing the law enforcement service and be located
within the same county.7 The Legislature’s intent as expressed in the
title of the legislation and in the history surrounding enactment of the
bill supports this interpretation.
Accordingly, it is my opinion that pursuant to section 166.0495,
Florida Statues, the City of Fort Walton Beach is authorized to enter
into an interlocal agreement for the provision of law enforcement
services only with other municipalities which adjoin the city and are
located within the same county.
You have posed two additional questions: whether the city and the
Okaloosa County Airport may enter into an interlocal agreement for
the city to provide law enforcement on the county airport property; and
whether Florida law requires a city to provide law enforcement services
to its citizens or whether it may rely upon county law enforcement only.
You have been informed that the governing body of the Okaloosa County
Airport must join in the request in order for this office to address your
second question and that the sheriff would necessarily have to join in the
request to have your third question considered; no communication to that
effect has been received by this office.
1
See Parker v. State, 406 So. 2d 1089 (Fla. 1981) (one indicator of the
Legislature’s intent is the title of the law enacting the statute); Finn v.
Finn, 312 So. 2d 726 (Fla. 1975) (title of act is not part of basic act but
has function of defining scope of act); Berger v. Jackson, 23 So. 2d 265
(Fla. 1945) (generally, title of an act may be considered in determining
the intent of the Legislature; title of act is to be given due weight);
Speights v. State, 414 So. 2d 574 (Fla. 1st DCA 1982) (although not part
of statute, title is valuable aid in determining legislative intent); and Op.
Att’y Gen. Fla. 57-314 (1957) (where heading is furnished by Legislature,
consideration of heading is proper in determining intent of Legislature).
2
See Reynolds v. State, 842 So. 2d 46, 49 (Fla. 2002) (legislative intent is
the polestar that guides statutory construction analysis).
3
Senate Committee on Community Affairs, March 5, 1997, Sen. Virginia
“Ginny” Brown-Waite, CS/SB 378, Tape 1 of 3. See also Senate Floor
Debate, April 17, 1997, Sen. Virginia “Ginny” Brown-Waite, Tape 4 of 6
(“This bill gives municipalities the choice of contracting either with the
sheriff’s office or with an adjoining municipality for police services.”).
4
See Mendelsohn v. State of Florida, Department of Health, Case No.
1D11-3278, August 31, 2011 (Fla. 1st DCA 2011), citing Kasischke v.
State, 991 So. 2d 803, 812-13 (Fla. 2008) (citing 2A Norman J. Singer &
J.D. Shambie Singer, Statutes and Statutory Construction s. 47.33 [7th
ed. 2007]).
5
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Webster’s Third New International Dictionary (unabridged, 1981), p.
2073.
6
Cf. Jarrett v. State, 926 So. 2d 429 (Fla. 2d DCA 2006), in which the
jurisdiction of a city police officer employed by the Town of Indian Shores
rendering law enforcement services pursuant to an interlocal agreement
with the Town of Redington Shores was challenged on technical grounds
that the agreement had not been recorded in both jurisdictions; while
the proximity of the towns was not at issue, the towns are geographically
adjacent. See http://wms.mapwise.com/fmo2/.
7
AGO 11-25 – December 9, 2011
DUAL OFFICE-HOLDING – SPECIAL MAGISTRATES –
MUSEUM TRUSTEES
WHETHER MEMBERS OF MUSEUM BOARD OF TRUSTEES MAY
SIMULTANEOUSLY SERVE AS SPECIAL MAGISTRATE FOR
VALUE ADJUSTMENT BOARD
To: Mr. Steven A. Schultz, PA, Attorney for the Miami-Dade County
Value Adjustment Board1
Mr. Carlton W. Cole, Member of the Miami-Dade County Vizcaya
Museum and Gardens Trust
QUESTIONS:
1. Is an appointed member of the Board of Trustees of the
Miami-Dade County Vizcaya Museum and Gardens Trust an
appointed official or employee of the county or of a taxing
jurisdiction or of the state for purposes of section 194.035(1),
Florida Statutes?
2. Is an appointed member of the Board of Trustees of the
Miami Dade County Vizcaya Museum and Gardens Trust an
officer for purposes of the constitutional dual office-holding
prohibition contained in section 5(a), Article II, Florida
Constitution?
SUMMARY:
1. Members of the Board of Trustees of the Vizcaya Museum
and Gardens Trust are appointed officials of the county for
purposes of section 194.035(1), Florida Statutes.
2. In light of my answer to Question One, no response to your
second question is necessary.
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Mr. Cole has advised this office of his intention to apply for a position
as a special magistrate with the Miami-Dade County Value Adjustment
Board. This office has, on a number of occasions, concluded that such
service constitutes an office for purposes of the dual office-holding
prohibition in Article II, section (5)(a), Florida Constitution.2 Thus, you
ask whether a member of the Miami-Dade County Vizcaya Museum and
Gardens Trust is an officer for purposes of the constitutional dual officeholding prohibition such that Mr. Cole is precluded from simultaneously
serving in both offices. Further, section 194.035(1), Florida Statutes,
contains a broader prohibition directed specifically to value adjustment
board proceedings which would preclude an appointed or elected official
or employee of the county from serving as a special magistrate. Mr.
Cole’s concern is that he may fall within the scope of one or both of these
prohibitions which would preclude his serving as a special magistrate.
QUESTION 1. – Section 194.035(1), Florida Statutes
The Vizcaya Museum and Gardens Trust (the trust) was created by
a Miami-Dade County ordinance as an agency and instrumentality
of the county.3 The governing body of the trust is a board of trustees
made up of 24 members, none of whom may be employees of the trust.4
As an agency and instrumentality of Miami-Dade County, the trust is
accountable directly to the county “and subject to its Legislative and
Executive powers.”5 Members of the trust board are appointed by
the county commission and by the executive mayor of Miami-Dade
County and include the county manager (or a designee), and various
officials involved with the Vizcaya and other cultural and historical
bodies and include the director of the Miami-Dade Park and Recreation
Department.6 Members of the trust serve without compensation, but
are entitled to “reimbursement for necessary expenses incurred in the
discharge of their duties.”7
The trust is charged with making, adopting and amending by-laws,
rules and regulations for its own governance and for the operation,
governance, restoration, preservation and maintenance of designated
facilities.8 Powers of the trust include:
• preparing a mission statement for the Vizcaya Museum
and Gardens which, once approved, governs “all actions by
Miami-Dade County and its agents and employees concerning
Vizcaya Museum and Gardens.”9
• establishing written schedules of rates, charges, and fees
relating to Vizcaya, which are effective upon approval by the
Board of County Commissioners.10
• developing policies regarding Vizcaya Museum and
Gardens which are binding on all Miami-Dade County
departments, agents, users, and employees once approved by
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the Board of County Commissioners.11
•
the acceptance of grants and gifts.12
• the authority to negotiate and recommend contracts and
agreements with support groups and the power (with MiamiDade County) to inspect and audit books and records of support
groups; and the accounting and disposition of fund raising
proceeds.13
The trust is charged with developing additional appropriate plans
and ordinance amendments for the transition of the operation of the
museum and gardens to a public/private operating partnership.
With regard to contractual authority, “the Trust as agent and
instrumentality of Miami-Dade County, shall be authorized to act
for Miami-Dade County in the performance and enforcement of all
contracts pertaining to the Trust and designated facilities . . . and shall
additionally be empowered to negotiate and execute . . . such contracts
as are properly within the powers and duties of the Trust[.]”14 The trust
may not, without prior approval of the Board of County Commissioners,
enter into or amend any contract requiring the expenditure of funds in
excess of the amounts appropriated in the county budget and designated
for the trust.15 The trust is authorized to purchase real property with
the title to be vested in Miami-Dade County.16
The budget for the Vizcaya Museum and Gardens is to be prepared
annually by the trust on “official county budget forms” and submitted
directly to the county manager.17 Supplemental budget requests may
be submitted to the County Commission and, if approved, constitute
amendments to the official county budget.18
Section 194.035, Florida Statutes, authorizes value adjustment
boards to appoint special magistrates to take testimony and make
recommendations to the board. Section 194.035(1), Florida Statutes,
provides that:
In counties having a population of more than 75,000, the (value
adjustment) board shall appoint special magistrates for the
purpose of taking testimony and making recommendations to
the board, which recommendations the board may act upon
without further hearing. These special magistrates may not be
elected or appointed officials or employees of the county but shall
be selected from a list of those qualified individuals who are
willing to serve as special magistrates. Employees and elected
or appointed officials of a taxing jurisdiction or of the state may
not serve as special magistrates. (e.s.)
Section 194.035, Florida Statutes, does not contain a definition of
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11-25
the term “official” for purposes of the prohibition. In the absence of a
statutory definition, the general rule is that words of common usage
are construed in their plain and ordinary sense and that, if necessary,
the plain and ordinary meaning of the words can be ascertained by
reference to a dictionary.19 Words in common use in a statute are to be
construed in their plain and ordinary signification, unless they are used
in their technical sense.20
The word “official” is generally defined as: “a person appointed or
elected to an office or charged with certain duties;21 “[o]ne who holds an
office or position;”22 “[o]ne who holds or is invested with a public office; a
person elected or appointed to carry out some portion of a government’s
sovereign powers.”23 Thus, an official would appear to be a person who
holds an elected or appointed office or position and is invested with
some of the government’s sovereign powers.
As is clear from the plain language of the statute,24 the prohibition
in section 194.035(1), Florida Statutes, is more broadly encompassing
than the dual office-holding prohibition of the Florida Constitution25
which does not include employees or officers of special districts within
its scope.26 Section 194.035(1), Florida Statutes, clearly covers not only
appointed and elected officials but employees of counties, the state and
other taxing jurisdictions within the scope of the prohibition against
service as a special magistrate.
Members of the Board of Trustees of the Vizcaya Museum and
Gardens Trust cannot, pursuant to the terms of the ordinance creating
the trust, be employees of the Trust.27 Members of the trust board
serve without compensation, but are entitled to reimbursement for
necessary expenses incurred in the discharge of their duties.28 Members
of the board must abide by a code of ethics styled after the American
Association of Museum’s Code of Ethics and are subject to state open
government and ethics laws.29
The Vizcaya Museum and Gardens Trust is “created and established
as an agency and instrumentality of Miami-Dade County” by the terms
of the ordinance creating the trust.30 The real property and facilities
including personal property and art objects constituting the trust are
the property of Miami-Dade County.31 The board of the trust includes
county officers as members.32 Members of the board serve what are
characterized by the ordinance as “staggered terms of office.”33 Members
of the board are protected from personal liability by inclusion within
the terms of county comprehensive general and professional liability
insurance policies and are entitled to personal liability protection by the
county “to the same extent that Miami-Dade employees and agents have
such protection.”34 Board members are subject to “removal from office”35
and exercise certain limited executive, legislative and administrative
powers.
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As it appears that section 194.035(1), Florida Statutes, is to be read
broadly to capture officials and employees who may not be subject to
Article II, section 5(a), Florida Constitution, and in consideration of the
duties and responsibilities of the board, it is my opinion that members
of the board are appointed officials of the county for purposes of section
194.035(1), Florida Statutes, and would be precluded from service as
special magistrates.
QUESTION 2. – Article II, section 5(a), Florida Constitution
You also ask whether a member of the board of the Vizcaya Museum
and Gardens Trust is an officer for purposes of the dual office-holding
prohibition contained in Article II, section 5(a), Florida Constitution.
In light of my response to Question One, which would preclude Mr.
Cole from holding the office of special magistrate while simultaneously
serving as a member of the board of the Vizcaya Museum and Gardens
Trust, no response to your second question will be forthcoming.
Pursuant to s. 194.035(1), Fla. Stat., the value adjustment board must
verify the special magistrate’s qualifications before appointment. And
see Rule 12D-9.010(5), Fla. Admin. C., “[t]he value adjustment board
or board legal counsel must verify a special magistrate(s qualifications
before appointing the special magistrate.”
1
See Op. Att’y Gen. Fla. 05 29 (2005) (service as special magistrate for
value adjustment board constitutes an office within the scope of Art. II,
s. 5(a), Fla. Const., and service on code enforcement board constitutes an
office for purposes of dual office holding prohibition); Inf. Op. to Groot,
dated June 24, 2011. See also Rodriguez v. Tax Adjustment Experts of
Florida, Inc., 551 So. 2d 537 (Fla. 3d DCA 1989) (special masters for value
adjustment boards are quasi judicial officers).
2
See s. 2-1111, Art. LXXXI, Ch. 2, Part III, Miami-Dade County, Florida,
Code of Ordinances.
3
4
Section 2-1113.A., id.
5
Section 2-1120., supra at n.3.
6
Id.
Section 2-1113.A., Art. LXXXI, Ch. 2, Part III, Miami-Dade County,
Florida, Code of Ordinances.
7
8
Section 2-1113.E.1., id.
9
Section 2-1114.1., supra at n.7.
10
Section 2-1114.2., supra at n.7.
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11
Section 2-1114.3., supra at n.7.
12
Section 2-1114.3.(e), supra at n.7.
13
Section 2-1114.4., supra at n.7.
11-25
14
Section 2-1115.2., Art. LXXXI, Ch. 2, Part III, Miami-Dade County,
Florida, Code of Ordinances.
15
Section 2-1115.2.a., id.
16
Section 2-1115.3., supra at n.14.
17
Section 2-1117.2., supra at n.14.
18
Id.
Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000); Rollins v. Pizzarelli, 761
So. 2d 294 (Fla. 2000).
19
20
State v. Tunnicliffe, 124 So. 279, 281 (Fla. 1929); Gasson v. Gay, 49 So.
2d 525, 526 (Fla. 1950); State v. Egan, 287 So. 2d 1, 4 (Fla. 1973).
21
Webster’s New Universal Unabridged Dictionary (2003), p. 1345.
22
American Heritage Dictionary (office edition, 1983), p. 477.
23
Black’s Law Dictionary (8th ed. 2004), p. 1119.
See M.W. v. Davis, 756 So. 2d 90 (Fla. 2000) (when language of statute
is clear and unambiguous and conveys a clear and definite meaning,
there is no occasion for resorting to rules of statutory interpretation and
construction as statute must be given its plain and obvious meaning);
McLaughlin v. State, 721 So. 2d 1170 (Fla. 1998); Holly v. Auld, 450 So.
2d 217 (Fla. 1984); Ops. Att’y Gen. Fla. 00-46 (2000) (where language of
statute is plain and definite in meaning without ambiguity, it fixes the
legislative intention such that interpretation and construction are not
needed); 99-44 (1999); 97-81 (1997).
24
25
Article II, s. 5(a), Fla. Const., provides:
SECTION 5. Public officers.–
(a) No person holding any office of emolument under any
foreign government, or civil office of emolument under the
United States or any other state, shall hold any office of honor
or of emolument under the government of this state. No person
shall hold at the same time more than one office under the
government of the state and the counties and municipalities
therein, except that a notary public or military officer may
hold another office, and any officer may be a member of a
constitution revision commission, taxation and budget reform
commission, constitutional convention, or statutory body
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having only advisory powers.
For examples of positions which constituted an “employment” not
an “office,” see, e.g., Ops. Att’y Gen. Fla. 94-88 (1994) (charter review
commission attorney); 94-40 (1994) (code enforcement officer under
Ch. 162, Fla. Stat.); 73-332 (1973) (county commission attorney); and
77-31 (1977) (community college district comptroller). For examples
of special district offices which were not subject to the constitutional
prohibition, see, e.g., Ops. Att’y Gen. Fla. 94-83 (1994) (person may serve
on airport authority and on school board); 86-55 (1986) (member of Big
Cypress Basin’s governing board may serve as city mayor); 78-74 (1978)
(municipal parking board member may serve as member of community
college district board of trustees).
26
Section 2-1113.A, Art. LXXXI, Ch. 2, Part III, Miami-Dade County,
Florida, Code of Ordinances.
27
28
Section 2-1113.A., id.
29
Section 2-1113. E.4., supra at n.27.
30
Section 2-1111., supra at n.27.
31
Section 2-1112, supra at n.27.
32
Section 2-1113, supra at n.27.
33
Section 2-1113.D., supra at n.27.
34
Section 2-1113.E.6., supra at n.27.
35
Section 2-1113.E.7. and 8., supra at n.27.
AGO 11-26 – December 9, 2011
REGIONAL PLANNING COUNCILS – PUBLIC EMPLOYEE
COMPENSATION – EXTRA COMPENSATION – UNITS OF
GOVERNMENT
WHETHER REGIONAL PLANNING COUNCIL IS “UNIT OF
GOVERNMENT” FOR PURPOSES OF PROVIDING SEVERANCE
PAY FOR OFFICERS AND EMPLOYEES OF COUNCIL
To: Mr. Samuel S. Goren and Mr. Jacob G. Horowitz, Attorneys for the
South Florida Regional Planning Council
QUESTION:
Is the South Florida Regional Planning Council considered a
“unit of government” as that phrase is used in section 215.425,
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Florida Statutes, as amended by Chapter 2011-143, Laws of
Florida, for the purpose of determining severance payments for
its employees?
SUMMARY:
The South Florida Regional Planning Council is a “unit of
government” for purposes of section 215.425, Florida Statutes, as
amended by Chapter 2011-143, Laws of Florida, for determining
severance payments for its employees.
You advise that the South Florida Regional Planning Council is
currently negotiating an employment agreement with a prospective
executive director and is seeking guidance regarding whether the
regional planning council is subject to section 215.425(4)(a), Florida
Statutes.
The South Florida Regional Planning Council was created pursuant
to the “Florida Regional Planning Council Act,” sections 186.501186.513, Florida Statutes. The act authorizes the creation of regional
planning councils in each of the several comprehensive planning
districts of the state in order to effectively carry out a wide variety of
federal and state program designations and to avoid a proliferation of
overlapping, duplicating, and competing agencies.1 The comprehensive
planning districts are geographic areas within the state designated by
the Executive Office of the Governor.2
The purpose of the act is
to establish a common system of regional planning councils
for areawide coordination and related cooperative activities
of federal, state, and local governments; ensure a broad
based regional organization that can provide a truly regional
perspective; and enhance the ability and opportunity of local
governments to resolve issues and problems transcending their
individual boundaries.3
As provided in the act, regional planning councils serve as the
primary organizations to address problems and plan solutions that
are of concern on more than a local level and it is through the regional
planning councils that local governments may provide input into state
policy development.4 While the councils do not act as a permitting or
regulatory entity, they are recognized as the multipurpose regional
entity that is in a position to plan for and coordinate intergovernmental
solutions to growth related problems on greater than local issues,
provide technical assistance to local governments, and meet other needs
of the communities in each region.5
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In order to accomplish these legislatively prescribed goals, regional
planning councils have been given a number of specifically enumerated
powers, including the power to enter into contracts and agreements; to
sue and be sued in their own names; to accept funds, grants, and services
from governmental or private sources; to adopt rules; and to participate
with other organizations, public and private, in the coordination or
conduct of their activities.6 Regional planning councils are authorized
by section 186.505, Florida Statutes, to employ and compensate
personnel, consultants, and technical and professional assistants as are
determined to be necessary to perform the duties set forth in the act.7
Such councils constitute “agencies” for purposes of Chapter 120, Florida
Statutes, the “Administrative Procedures Act.”8
Regional planning councils must prepare and submit to the Executive
Office of the Governor a proposed comprehensive regional policy plan,
addressing significant regional resources, infrastructure needs, or other
important issues within the region as well as specifying regional issues
that may be used in reviewing a development of regional impact.9 This
regional policy plan contains regional goals and policies regarding
growth management and must be consistent with the adopted state
comprehensive plan.10 The Executive Office of the Governor arbitrates
disputes between or among the regional planning councils.11
While Florida courts have not addressed the issue of regional
planning councils as “units of government,” they have considered
the nature of regional planning councils and determined that board
members are officers for purpose of Florida’s Resign-to-Run Law and
the constitutional dual office-holding prohibition. In Orange County v.
Gillespie,12 the court considered a regional planning council established
under former Chapter 160, Florida Statutes.13 The court considered
whether a voting member of the East Central Florida Regional Planning
Council was a “public officer” within the meaning of Florida’s Resign to
Run Law, which required elected or appointed public officials to resign
from office before seeking another public office. While it was argued
that the council acted in an advisory capacity, the court held that the
regional planning councils had been delegated and possessed the powers
and attributes of sovereignty.
Thus, the court held that members of such councils constituted public
officers for purposes of the resign to run law at that time applicable
to state, county, or municipal offices.14 The court concluded that the
member was ineligible to qualify as a candidate for the office of state
representative in the primary prior to resigning from the planning
council. Likewise, this office has, for purposes of dual office-holding
considerations, determined that membership on a regional planning
council constitutes an office within the meaning of Article II, section
5(a), Florida Constitution, Florida’s dual office-holding prohibition.15
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Section 215.425, Florida Statutes, prohibits extra compensation
payments in the absence of a policy or contract. Subsection (1) of the
statute, as amended by section 1, Chapter 2011-143, Laws of Florida,
provides that:
No extra compensation shall be made to any officer, agent,
employee, or contractor after the service has been rendered or
the contract made; nor shall any money be appropriated or paid
on any claim the subject matter of which has not been provided
for by preexisting laws, unless such compensation or claim is
allowed by a law enacted by two thirds of the members elected to
each house of the Legislature. However, when adopting salary
schedules for a fiscal year, a district school board or community
college district board of trustees may apply the schedule for
payment of all services rendered subsequent to July 1 of that
fiscal year.
The statute was amended during the 2011 legislative session to
authorize certain limited types of extra compensation16 and to require
that any policy, ordinance, rule or resolution crafted to implement a
bonus scheme meet certain legislatively prescribed standards:
(3) Any policy, ordinance, rule, or resolution designed to
implement a bonus scheme must:
(a) Base the award of a bonus on work performance;
(b) Describe the performance standards and evaluation
process by which a bonus will be awarded;
(c) Notify all employees of the policy, ordinance, rule, or
resolution before the beginning of the evaluation period on
which a bonus will be based; and
(d) Consider all employees for the bonus.17
You specifically inquire about subsection (4) which requires in
subparagraph (a), that after July 1, 2011:
[A] unit of government that enters into a contract or employment
agreement, or renewal or renegotiation of an existing contract
or employment agreement, that contains a provision for
severance pay with an officer, agent, employee, or contractor
must include the following provisions in the contract:
1. A requirement that severance pay provided may not exceed
an amount greater than 20 weeks of compensation.
2.
A prohibition of provision of severance pay when the officer,
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agent, employee, or contractor has been fired for misconduct, as
defined in s. 443.036(29), by the unit of government.18
The phrase “unit of government” as it is used in section 215.425,
Florida Statutes, is not defined. In the absence of a statutory definition,
the plain and ordinary meaning of a word can be ascertained, if
necessary by reference to a dictionary.19 The word “government” is
commonly defined as “the political direction and control exercised over
the actions of the members, citizens, or inhabitants of communities,
societies, and states; direction of the affairs of a state, community, etc.;
political administration[;]”20 or “[a] system by which a political unit is
governed[;] [a] governing body or organization.”21 A “unit” is defined as
“one of a number of things, organizations, etc., identical or equivalent in
function or form[;]” and “[o]ne regarded as a constituent part of a whole”
or “[a] part, device, or module that performs a particular function.”22
Thus, a “unit of government” would appear to be a governing body or
organization that constitutes a part of the political administration of
this state.
Regional planning councils are the primary organizations in this
state addressing intergovernmental planning problems and providing
solutions and technical assistance. These planning councils act on
behalf of the state in implementing state policies relating to growth
management. Regional planning councils are statutorily authorized
and regulated entities responsible for formulating regional planning
processes. Board members or planning councils are subject to the
Florida’s Resign-to-Run Law and the dual office-holding prohibition.23
Thus, it would appear that regional planning councils created pursuant
to the “Florida Regional Planning Council Act” are a part of the political
administration of this state and would constitute “units of government”
for purposes of section 215.425, Florida Statutes, as amended by
Chapter 2011-143, Laws of Florida.
In sum, it is my opinion that the South Florida Regional Planning
Council is a “unit of government” as that phrase is used in section
215.425, Florida Statutes, as amended by Chapter 2011-143, Laws
of Florida, for the purpose of determining severance payments for its
employees.
1
See s. 186.502(1)(c), Fla. Stat.
2
See s. 186.503(1), Fla. Stat.
3
Section 186.502(2), Fla. Stat.
4
Section 186.502(3), Fla. Stat.
5
See s. 186.502(4), Fla. Stat.
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6
See s. 186.505, Fla. Stat.
7
Section 186.505(4), Fla. Stat.
11-26
See s. 120.52(1), Fla. Stat., defining “Agency” for purposes of Ch. 120,
Fla. Stat., the Administrative Procedure Act, to mean, among others,
those entities described in s. 186.504, Fla. Stat.
8
9
Section 186.508(1), Fla. Stat.
10
Section 186.507(1), Fla. Stat.
11
See s. 186.506(1), Fla. Stat.
239 So. 2d 132 (Fla. 4th DCA 1970), cert. denied, 239 So. 2d 825 (Fla.
1970).
12
13
See now ss. 186.501 186.513, Fla. Stat.
See s. 99.012, Fla. Stat. (1971), stating in subsection (2) that “[n]o
individual may qualify as a candidate for public office who holds another
elective or appointive office, whether state, county, or municipal, the term
of which or any part thereof runs concurrently with the term of office for
which he seeks to qualify without resigning from such office . . . .” Section
99.012(2) was subsequently amended and now refers to district offices
in addition to federal, state, county, and municipal offices; however, at
the time the court reached its opinion in Orange County v. Gillespie,
supra, the statute did not refer to district offices.
14
15
See Op. Att’y Gen. Fla. 01-28 (2001).
16
See s. 1(2), Ch. 2011-143, Laws of Fla.
This section does not apply to:
(a) A bonus or severance pay that is paid wholly from nontax
revenues and nonstate appropriated funds, the payment and
receipt of which does not otherwise violate part III of chapter
112, and which is paid to an officer, agent, employee, or
contractor of a public hospital that is operated by a county or a
special district; or
(b) A clothing and maintenance allowance given to plainclothes
deputies pursuant to s. 30.49.
17
Section 215.425(3), Fla. Stat.
Further, any agreement or contract, executed on or after July 1, 2011,
which involves extra compensation between a unit of government and an
officer, agent, employee, or contractor may not include provisions that
limit the ability of any party to the agreement or contract to discuss the
agreement or contract pursuant to section 215.425(5), Fla. Stat.
18
19
See Green v. State, 604 So. 2d 471, 473 (Fla. 1992); Plante v. Department
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of Business and Professional Regulation, 685 So. 2d 886, 887 (Fla. 4th
DCA 1996); WFTV, Inc. v. Wilken, 675 So. 2d 674 (Fla. 4th DCA 1996);
State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997).
20
Webster’s New Universal Unabridged Dictionary 2003, p. 826.
21
The American Heritage Dictionary (office ed. 1987), p. 303.
Webster’s New Universal Unabridged Dictionary 2003, p. 2074; The
American Heritage Dictionary (office ed. 1987), p. 741.
22
See Art. II, s. 5(a), Fla. Const., providing a dual office-holding
prohibition and s. 99.012, Fla. Stat., for resign-to-run requirements.
23
AGO 11-27 – December 21, 2011
E911 CALLS – EMERGENCY SERVICES – PUBLIC RECORDS
CONFIDENTIALITY OF IDENTIFYING INFORMATION IN
OFFENSE REPORTS
To: Ms. Lisa H. Rubin, Agency Attorney, Palm Beach County Sheriff
QUESTION:
Is information regarding an individual who makes a 911 call
contained in an offense report confidential and exempt pursuant
to section 365.171(12), Florida Statutes, regardless of whether
the offense report reflects that a 911 call was made or identifies
the individual as having made the 911 call?
SUMMARY:
Information obtained from a 911 call by an agency for the
purpose of providing service in an emergency which reveals
the name, address, telephone number, or personal information
about, or information which may identify any person requesting
emergency services or reporting an emergency is confidential
while in the custody of the agency. However, identifying
information obtained or created independently of the 911 call,
for example from a criminal investigation or offense report
created as a result of such investigation, is not exempt under
section 365.171(12), Florida Statutes.
While you recognize that the exemption clearly applies to the recording
of 911 calls and computer aided dispatch records relating to such calls,
you question whether an offense report which subsequently includes
such information identifying an individual, but not indicating that he
or she placed the 911 call or requested emergency assistance would be
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11-27
subject to the exemption. You also question whether the identifying
information should be redacted from the offense report when the caller
is also the victim, a suspect, or a witness to the incident, and no other
exemptions would justify the redaction of such information.
Section 365.171, Florida Statutes, is the “Florida Emergency
Communications Number E911 State Plan Act.”1 It is the Legislature’s
intent
to implement and continually update a cohesive statewide
emergency communications number “E911” plan for enhanced
911 services which will provide citizens with rapid direct
access to public safety agencies by accessing “911” with the
objective of reducing the response time to situations requiring
law enforcement, fire, medical, rescue, and other emergency
services.2
Section 365.171(12), Florida Statutes, provides:
CONFIDENTIALITY OF RECORDS.—Any record, recording,
or information, or portions thereof, obtained by a public agency
or a public safety agency for the purpose of providing services in
an emergency and which reveals the name, address, telephone
number, or personal information about, or information which
may identify any person requesting emergency service or reporting
an emergency by accessing an emergency communications E911
system is confidential and exempt from the provisions of s.
119.07(1) and s. 24(a), Art. I of the State Constitution, except
that such record or information may be disclosed to a public
safety agency. The exemption applies only to the name, address,
telephone number or personal information about, or information
which may identify any person requesting emergency services
or reporting an emergency while such information is in the
custody of the public agency or public safety agency providing
emergency services. . . . (e.s.)
Thus, application of the exemption hinges upon two conditions: the
information was obtained by a public agency or a public safety agency for
the purpose of providing services in an emergency; and the information
reveals the identity of the person requesting emergency services or
reporting the emergency. The Legislature has stated:
The Legislature finds that it is a public necessity that
information received by the agency receiving a “911” call and
an agency providing emergency services as a result of that
“911” call be held confidential and exempt when it reveals the
name, address, telephone number, or personal information
about, or information which may identify the person requesting
emergency service or reporting an emergency because if it
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were otherwise, personal, sensitive information, including
medical information, would be revealed to the public. The need
for emergency services bespeaks a very personal and often
traumatizing event. To have this information made publicly
available is an invasion of privacy. Additionally, to have such
information publicly available could jeopardize the health and
safety of those needing emergency services in that people, other
than emergency service providers, could actually gain access to
the scene of the emergency and thereby impede the effective
and efficient provision of emergency services. Furthermore,
there are those persons, who, for personal, private gain and/or
for business purposes, would seek to capitalize on individuals
in their time of need. Those reporting or needing emergency
services should not be subjected to this type of possible
harassment. Furthermore, to allow such information to become
public could chill the reporting of emergency situations to the
detriment of public health and safety.3
While the Legislature’s concern is to protect individuals using 911 to
seek emergency assistance from unwanted and potentially detrimental
contact, the exemption is couched in terms of information derived from
the 911 call which would identify the individual as the one making the
call or requesting emergency services. A study by the Florida Senate
reviewing the exemption for purposes of reenactment summarized
that the purpose of the exemption is “to shield the identity of any
person requesting emergency services or reporting an emergency by
accessing the emergency telephone number ‘911.’”4 The report noted,
however, that the exempted information could be obtained from other
official documents, albeit in some instances such information would be
protected from disclosure by other statutory exemptions.5
The plain language of the statute makes the exemption applicable to
any record or information obtained by a public agency for the purpose
of providing services in an emergency and which may identify the
person as one requesting emergency services or reporting an emergency
situation. You have stated that the offense report is a document that
may be created as a result of an inquiry or investigation following a
911 call. Such a report, however, does not appear to be a record or
information obtained by the law enforcement agency from the 911 call,
nor does it necessarily identify the individual as the one making the 911
call or requesting emergency services. While a law enforcement agency
may be initially responding to an emergency situation as a result of the
911 call, a subsequent investigation of criminal activity resulting in the
creation of an offense report would appear to be distinct from providing
emergency services.
It is well settled that the Public Records Law is to be liberally
construed in favor of open government and that an exemption from
disclosure is to be strictly construed to effectuate its stated purpose.6
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11-27
Thus, to shield the identity of one who makes a 911 call, only information
obtained by an agency identifying an individual as the caller in a 911
call or one requesting emergency services is confidential. Information
placed in an offense report which does not identify an individual as the
caller or one requesting emergency services, however, does not meet the
requirements set forth for the exemption from disclosure under section
365.171(12), Florida Statutes.
The clear language of the statute makes the exemption applicable to
identifying information derived from a 911 call. Thus, the name of a
911 caller or one requesting emergency services that a law enforcement
agency has obtained only from the 911 call remains confidential.
Information, including names, collected from an investigation which
is included in an offense report created as a result of a criminal
investigation independent of the 911 call, however, is not protected by
the exemption in section 365.171(12), Florida Statutes.
Accordingly, it is my opinion that identifying information derived
from a criminal investigation and placed in an offense report by a
law enforcement agency does not fall within the exemption in section
365.171(12), Florida Statutes.
While information obtained from
a 911 call by an agency for the purpose of providing service in an
emergency which reveals the name, address, telephone number, or
personal information about, or information which may identify any
person requesting emergency services or reporting an emergency is
confidential, such information obtained or created independently of
the 911 call as a result of a criminal investigation is not exempt under
section 365.171(12), Florida Statutes. Agencies creating documents
which may contain identifying information, however, may wish to be
sensitive to the purpose of the exemption in section 365.171(12), Florida
Statutes, when placing such information in the documents.
1
Section 365.171(1), Fla. Stat.
2
Section 365.171(2), Fla. Stat.
3
Section 2, Ch. 96-229, Laws of Fla.
See The Florida Senate, Committee on Comprehensive Planning, Local
and Military Affairs, Interim Project Report 2001-036, November 2000.
4
Id. at p. 4. Such information may be confidential or exempt from
disclosure if it is active criminal investigative information, active criminal
intelligence information, or identifies certain victims of crime.
5
See Krischer v. D’Amato, 674 So. 2d 909, 911 (Fla. 4th DCA 1996);
Seminole County v. Wood, 512 So. 2d 1000, 1002 (Fla. 5th DCA 1987),
review denied, 520 So. 2d 586 (1988); Tribune Company v. Public Records,
493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum
6
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v. Tribune Company, 503 So. 2d 327 (Fla. 1987). And see Southern Bell
Telephone and Telegraph Company v. Beard, 597 So. 2d 873, 876 (Fla. 1st
DCA 1992) (Public Service Commission’s determination that proprietary
confidential business information exemption is to be narrowly construed
and not applicable to company’s internal self-analysis was “consistent
with the liberal construction afforded the Public Records Act in favor of
open government”).
AGO 12-01 – January 12, 2012
GAMBLING – SLOTS – COUNTIES – BUSINESS AND
PROFESSIONAL REGULATION, DEPARTMENT OF
AUTHORITY OF DEPARTMENT TO ISSUE SLOT MACHINE
LICENSE IN COUNTY APPROVING SLOT MACHINES BY
REFERENDUM
To: Mr. Ken Lawson, Secretary, Florida Department of Business and
Professional Regulation
QUESTION:
Does the third clause of section 551.102(4), Florida Statutes,
referring to the ability of voters to approve slot machines
“at a countywide referendum held pursuant to a statutory or
constitutional authorization after the effective date of this
section,” permit the Department of Business and Professional
Regulation to grant a slot machine license to a pari-mutuel facility
in a county which holds a countywide referendum to approve
such machines, absent a statutory or constitutional provision
enacted after July 1, 2010,1 authorizing such referendum?2
SUMMARY:
The Department is not authorized to issue a slot machine
license to a pari-mutuel facility in a county which, pursuant to
the third clause of section 551.102(4), Florida Statutes, holds
a countywide referendum to approve such machines, absent a
statutory or constitutional provision enacted after July 1, 2010,
authorizing such referendum. This conclusion is compelled
by the plain language of the statute, canons of statutory
construction, the statute’s legislative history, and consideration
of the statute in relation to the Legislature’s contemporaneous
ratification of the Seminole gaming compact.3
Section 551.104(1), Florida Statutes, provides in pertinent part that
the Division of Pari-Mutel Wagering “may issue a license to conduct
slot machine gaming in the designated slot machine gaming area of
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the eligible facility.” (e.s.) The term “eligible facility” is defined for
purposes of your inquiry to mean:
any licensed pari-mutuel facility in any other county in
which a majority of voters have approved slot machines at
such facilities in a countywide referendum held pursuant to a
statutory or constitutional authorization after the effective date
of this section in the respective county, provided such facility
has conducted a full schedule of live racing for 2 consecutive
calendar years immediately preceding its application for a slot
machine license, pays the required licensed fee, and meets the
other requirements of this chapter.4 (e.s.)
The italicized language quoted above was added to the statute in 2009
by section 19, Chapter 2009-170, Laws of Florida.5 The amendment,
however, was contingent upon ratification of the proposed gaming
compact between the State and the Seminole Tribe of Florida and its
approval by the U.S. Department of the Interior and was to take effect
upon publication of the compact in the Federal Register.6 In Chapter
2010-29, Laws of Florida, the Legislature refused to ratify the compact
considered in Chapter 2009-170. Instead, the Legislature approved a
new compact and amended Chapter 2009-170 to make all of the parimutuel provisions in that chapter effective July 1, 2010.7
In light of the amendment to section 551.102(4), Florida Statutes, a
question has arisen as to whether the statute’s third clause contemplates
that a county may now hold a referendum to authorize slot machines,
or, alternatively, whether the statute contemplates the necessity of
additional statutory or constitutional authorization before such a
referendum may be held. Based on my review of the statute, I conclude
that additional statutory or constitutional authorization is required to
bring a referendum within the framework set out in the third clause of
section 551.102(4).
It is important to note that at the time the Legislature considered the
2009 amendments to the definition of “eligible facility,” no constitutional
or statutory provision of Florida law provided for a referendum to
approve slots in any county other than Miami-Dade and Broward.
Those counties — and only those counties — gained the authority to
hold slots-approval referenda when the voters in 2004 adopted what
is now Article X, section 23 of the Florida Constitution. Indeed,
subject to certain limited exceptions not relevant here, slot machines
are generally prohibited by law.8 It is against this backdrop that the
Legislature adopted the statutory language at issue here: “a countywide
referendum held pursuant to a statutory or constitutional authorization
after the effective date of this section in the respective county.”
A critical issue in construing the above-quoted statutory text is
whether the phrase “after the effective date of this section” modifies
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the words “constitutional or statutory authorization.”
Applying
standard rules of statutory and grammatical construction, it is clear
that the phrase “after the effective date of this section” modifies the
words immediately preceding it, i.e., “a statutory or constitutional
authorization.”9 Specifically, under the last antecedent doctrine of
statutory interpretation, qualifying words, phrases, and clauses are to
be applied to the words or phrase immediately preceding, and are not
to be construed as extending to others more remote, unless a contrary
intention appears.10 Here, all pertinent considerations confirm that the
Legislature intended that any statutory or constitutional authorization
for a slots-approving referendum must occur after July 1, 2010, the
effective date of the relevant portion of section 551.102(4), Florida
Statutes.
It is a maxim of statutory construction that a statute is to be
construed to give meaning to all words and phrases contained within
the statute and that statutory language is not to be assumed to be mere
surplusage.11 If the Legislature in section 551.102(4), Florida Statutes,
had intended the phrase “after the effective date of this section” to
qualify the time at which a slots-approving referendum would be held,
such language would be superfluous. At the time it was considering
the pertinent amendment to section 551.102(4), no provision of Florida
law authorized a slots-approving referendum outside of Miami-Dade or
Broward counties. Since the first clause of section 551.102(4) expressly
references pari-mutuel facilities in Miami-Dade and Broward counties
and the language under consideration in the instant inquiry refers to
pari-mutuel facilities “in any other county,” clearly the Legislature did
not consider Miami-Dade and Broward counties to be included within
the scope of the provision under consideration. Thus, there were no
pre-effective date referenda to be excluded from the ambit of this clause
of the statute. To read the language as qualifying the time at which a
slots-approving referendum would be held would render the language
superfluous.
Similarly, if a county’s existing powers were sufficient to authorize
a slots-approving referendum, there would be no need to include the
phrase “pursuant to a statutory or constitutional authorization.”12 Had
the Legislature simply been referring to a county’s existing statutory
or constitutional authority, the following stricken language could have
been omitted without causing any change in the meaning of the statute:
any licensed pari-mutuel facility in any other county in which
a majority of voters have approved slot machines at such
facilities in a countywide referendum held pursuant to a
statutory or constitutional authorization after the effective date
of this section in the respective county, provided such facility
has conducted a full schedule of live racing for 2 consecutive
calendar years immediately preceding its application for a slot
machine license, pays the required licensed fee, and meets the
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12-01
other requirements of this chapter.
Instead, the Legislature chose to mandate that the referendum be held
“pursuant to a statutory or constitutional authorization”— an explicit
qualifier that appears to be unique in the Florida Statutes. Indeed,
no other referendum provision in the Florida Statutes employs similar
language.13 Thus, I cannot conclude that the language “statutory or
constitutional authorization” merely recognizes a county’s authority in
existence as of the effective date of the act. Rather, the Legislature’s
chosen language requires the adoption of a statute or constitutional
amendment specifically authorizing a referendum to approve slot
machines.
Legislative intent, the cornerstone of all statutory interpretation,
may be illuminated by the comments of the sponsor or proponents of
a bill or amendment.14 The Senate bill sponsor, Senator Dennis Jones,
gave the following explanation on second reading of the 2010 legislation
in response to a question about the local referendum process for a
county that wants to add slot machine gaming and how that process
would work:
Should we want to expand in the future, a Legislature would
come back and . . . let’s just say we wanted to go to Class III
slots, we could not do that as a local bill but we could come up
here and file it as a general bill and should that bill pass to
allow [a county] to have a referendum of the people and then
the people vote on it, if it was passed, we could get Class III
slots but it [would] also break the compact with the Indians.15
In further clarification, Senator Jones stated:
If they have a referendum in a county outside of MiamiDade and Broward for the purpose of Class III gaming and
the Legislature passes the legislation to allow that county to
have the referendum, the county has the referendum and that
referendum passes, then that would effectively break the
payments of the compact.16 (e.s.)
The above explanation by a sponsor of the legislation clearly indicates
that, under the pertinent language in section 551.102(4), Florida
Statutes, a county referendum to approve slots must be specifically
authorized by a statute or constitutional amendment enacted after
July 1, 2010. Such an explanation is contrary to any assertion that the
Legislature intended the provisions of section 551.102(4), in conjunction
with a county’s already-existing powers, to constitute authority for a
county to hold a referendum on slot machine gaming.
Finally, the conclusion that additional legislative authorization is
required for a slots-approving referendum gives due recognition to the
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context in which the Legislature adopted the relevant portion of section
551.102(4), Florida Statutes. The language in question took effect as
part of legislation ratifying a gaming compact between the State and
the Seminole Tribe of Florida, which contained provisions mandating
a reduction or loss of revenue to the State in response to an expansion
of slot machine gambling beyond that which existed at the time of
the compact’s adoption.17 To read the pertinent language in section
551.102(4) as allowing counties other than Miami-Dade and Broward
by referendum to authorize slot machines, absent specific legislative
or constitutional authority, would be at odds with the legislation as a
whole. Specifically, that interpretation of the statute would eliminate
the State’s control over its continued entitlement to a substantial
amount of revenue from the Seminole Tribe.18 In light of the intense
consideration and debate that went into the Legislature’s approval of
the Seminole compact, it is virtually unthinkable that the Legislature
would have intended to both undermine and ratify the compact in the
same enactment. The basic canons of statutory interpretation require
me to reject a reading of section 551.102(4) that would lead to such an
absurd result.19
Based upon the foregoing analysis, I am of the opinion that the
Department of Business and Professional Regulation is not authorized
to issue a slot machine license to a pari-mutuel facility in a county
which, pursuant to the third clause in section 551.102(4), Florida
Statutes, holds a countywide referendum to approve such machines,
absent a statute or constitutional provision enacted after July 1, 2010,
authorizing such referendum.
The effective date of the amended statute is July 1, 2010. See ss. 4 and
5, Ch. 2010-29, Laws of Fla., amending s. 26, Ch. 2009-170, Laws of Fla.
1
Section 551.102(4), Fla. Stat., defining “Eligible facility,” contains
three independent clauses: one relating to counties addressed in Art. X, s.
23, Fla. Const.; one relating to counties defined in s. 125.011, Fla. Stat.;
and the one which is the subject of the instant inquiry. This opinion is
limited to a consideration of the third clause in section 551.102(4); no
comment is expressed regarding the interpretation of the first and second
clauses.
2
In light of this conclusion, I need not address the other questions posed
in your letter.
3
4
Section 551.102(4), Fla. Stat.
The language in question was proposed by a conference committee
which stated in pertinent part that the language “[a]uthorizes Class III
slot machines in a county that has had a referendum approving slots or
has had a referendum approving slots that was approved by law or the
Constitution provided that such facility has conducted 2 years of racing
5
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12-01
and complies with other requirements for slot licensure.” (e.s.) Summary
of Conference Committee Report on CS/CS/SB 788, dated May 6, 2009.
6
Section 26, Ch. 2009-170, Laws of Fla.
7
Sections 1 and 5, Ch. 2010-29, Laws of Fla.
Section 849.15, Fla. Stat. And see s. 849.16, Fla. Stat., defining slot
machine.
8
If the phrase “after the effective date of this section” does not modify
the words “constitutional or statutory authorization,” a question would
still arise whether the Legislature intended to require a specific statutory
or constitutional authorization, or whether a county’s generic home
rule power to hold a referendum would constitute sufficient “statutory
authorization” for purposes of s. 551.102(4), Fla. Stat. See n.14 infra.
In light of the conclusion reached in this opinion, it is not necessary to
address this issue.
9
See Kasischke v. State, 991 So. 2d 803 (Fla. 2008); Jacques v. Dep’t of
Bus. & Prof. Reg., 15 So. 3d 793, 795–96 (Fla. 1st DCA 2009); City of St.
Petersburg v. Nasworthy, 751 So. 2d 772 (Fla. 1st DCA 2000). And see
Mendelsohn v. State, Dept. of Health, 68 So. 3d 965 (Fla.1st DCA 2011)
(a qualifying phrase will be read as modifying all items listed in a series
unless there is no comma between the last of the series and the qualifying
phrase).
10
See, e.g., Terrinoni v. Westward Ho!, 418 So. 2d 1143 (Fla. 1st DCA
1982); Unruh v. State, 669 So. 2d 242 (Fla. 1996) (as a fundamental rule of
statutory interpretation, courts should avoid readings that would render
part of a statute meaningless); Op. Att’y Gen. Fla. 91-16 (1991) (operative
language in a statute may not be regarded as surplusage).
11
See s. 125.01, Fla. Stat., and Speer v. Olson, 367 So. 2d 207 (Fla. 1978),
recognizing the home rule powers of a county. But see Art. VI, s. 5, Fla.
Const. (“referenda shall be held as provided by law”); and Holzendorf v.
Bell, 606 So. 2d 645 (Fla. 1st DCA 1992) (“Under the Constitution, the
phrase ‘as provided by law’ means as passed ‘by an act of the legislature’”).
Cf. s. 125.01(1)(y), Fla. Stat., authorizing a county to place questions or
propositions on the ballot “to obtain an expression of elector sentiment
with respect to matters of substantial concern within the county.”
12
See, e.g., ss. 100.041, 100.201, 125.0104, 125.0108, 125.64, 125.901,
and 153.53, Fla. Stat.
13
See, e.g., Ellis v. N.G.N. of Tampa, 561 So. 2d 1209 (Fla. 2d DCA 1990),
quashed on other grounds, 586 So. 2d 1042 (Fla. 1991) (legislative intent
may be illuminated by consideration of comments made by proponents of
bill or amendment); Ops. Att’y Gen. Fla. 12-24 (2011), 12-16 (2011), 06-16
(2006), 05-42 (2005), 99-61 (1999), relying on sponsor’s explanation of a
bill or amendment to determine legislative intent.
14
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April 8, 2010, Senate Floor Debate on CS/SB 622, 2010 Regular
Session.
15
16
Id.
See s. 2, Part XII, Ch. 2009-170, Laws of Fla., and Part XII of the
compact entered into by the State and the Tribe on April 7, 2010, and
ratified by the Legislature by Ch. 2010-29, Laws of Fla.
17
See statement of Senator Jones, April 15, 2010, Senate Floor Debate
on CS/SB 622, 2010 Regular Session, recognizing that “[t]he tribe has
exclusivity for class III gaming throughout the state” and that “[i]f new
games are authorized and gaming is expanded, the tribe stops making
payments or pays a reduced amount depending on the type of game and
location.”
18
See State v. Iacovone, 660 So. 2d 1371, 1373 (Fla.1995), quoting
Williams v. State, 492 So. 2d 1051, 1054 (Fla.1986), to the effect that
“[s]tatutes, as a rule, ‘will not be interpreted so as to yield an absurd
result.’”
19
AGO 12-02 – January 25, 2012
PROPERTY APPRAISERS – REAL PROPERTY – ADVERSE
POSSESSION – TAX ROLLS
PROPERTY APPRAISER’S AUTHORITY TO REMOVE NOTATION
OF ADVERSE POSSESSION CLAIM FROM TAX ROLL
To: The Honorable Pam Dubov, Pinellas County Property Appraiser
Attn: Ms. Christina LeBlanc
QUESTION:
Is section 95.18(7), Florida Statutes, as amended by section
1, Chapter 2012-107, Laws of Florida, the exclusive method by
which the property appraiser may remove an adverse possession
notation from the legal description on the tax roll?1
SUMMARY:
Section 95.18(7), Florida Statutes, as amended by section 1,
Chapter 2012-107, Laws of Florida, constitutes the legislatively
prescribed method by which the property appraiser may remove
an adverse possession notation from the legal description on the
tax roll for claims of adverse possession without color of title.
During 2009-10, the Florida Senate Committee on Judiciary reviewed
Florida’s statutory adverse possession framework and identified
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potential reforms to the adverse possession process with a particular
emphasis on landowners who had been subject to adverse possession
claims.2 Among the problems identified by the committee’s report was
the administration of adverse possession claims by Florida’s property
appraisers:
Property appraisers do not currently have guidance regarding
how to administer the adverse possession return once it has been
submitted by the adverse possessor. The report noted that the
Legislature could explore the option of prescribing the process
for adding the adverse possessor to the parcel information on
the tax roll, as well as when a property appraiser may remove
the adverse possessor from that parcel information and remove
the adverse possession return from the official records.3 (e.s.)
The language of the statute upon which your question is based is the
Legislature’s attempt to provide guidance in administering an adverse
possession return and to address the issue of when a property appraiser
may remove the adverse possessor from the parcel information on the
tax roll. Chapter 2012-107, Laws of Florida, amends section 95.18,
Florida Statutes, the statutory process for gaining title to real property
by an adverse possession claim without color of title. The bill amending
section 95.18, Florida Statutes, made a number of changes to the statute;
among those is the requirement that the property appraiser provide
notice to the property owner of record that an adverse possession claim
has been made.4 The amended statute also requires the Department of
Revenue to develop a uniform adverse possession return to initiate the
adverse possession claim and requires that the adverse possessor attest
to the truthfulness of the information contained on the form under
penalty of perjury.5 Thus, the statute now provides specific legislative
direction as to when the property appraiser must add and remove the
adverse possessor to and from the parcel information on the tax roll.
Section 95.18, Florida Statutes, relates to real property actions for
adverse possession without color of title6 and, as amended by section 1,
Chapter 2012-107, Laws of Florida, requires that the property appraiser
add certain information relating to the adverse possession claim to
the parcel information on the tax roll. This statute also prescribes
conditions for the removal of that information:
(7) A property appraiser must7 remove the notation to the legal
description on the tax roll that an adverse possession claim has
been submitted and shall remove the return from the property
appraiser’s records if:
(a) The person claiming adverse possession notifies the
property appraiser in writing that the adverse possession claim
is withdrawn;
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(b) The owner of record provides a certified copy of a court
order, entered after the date the return was submitted to the
property appraiser,establishing title in the owner of record;
(c) The property appraiser receives a certified copy of a
recorded deed, filed after the date of the submission of the
return, from the person claiming adverse possession to the
owner of record transferring title of property along with a legal
description describing the same property subject to the adverse
possession claim; or
(d) The owner of record or the tax collector provides to the
property appraiser a receipt demonstrating that the owner of
record has paid the annual tax assessment for the property
subject to the adverse possession claim during the period that
the person is claiming adverse possession.
The statute requires the property appraiser to include “a clear and
obvious notation in the legal description of the parcel information of
any public searchable property database maintained by the property
appraiser that an adverse possession return has been submitted to the
property appraiser for a particular parcel.”8 The amendments contained
in Chapter 2012-107, Laws of Florida, became effective July 1, 2011,
and the act specifically provides that the changes to section (7) set forth
above “apply to adverse possession claims for which the return was
submitted before, on, or after that date.”9 Thus, the provisions relating
to the duties and responsibilities of the property appraiser with regard
to the notation of an adverse possession claim apply to claims submitted
on tax returns before, on, or after July 1, 2011, and are retroactive as
well as prospective.
As a county officer, the property appraiser’s powers and duties are
measured by the terms of his or her grant of constitutional or statutory
authority and are limited to those powers expressly granted.10 Moreover,
“under the principle of statutory construction, expressio unius est exclusio
alterius, the mention of one thing implies the exclusion of another.”11
Thus, the authority of public officers to proceed in a particular way
or only upon specific conditions implies a duty not to proceed in any
manner other than that which is authorized by law.12
Section 95.18, Florida Statutes, as amended by section 1, Chapter
2012-107, Laws of Florida, is clear in its terms and provides authorization
for the property appraiser to act as directed by the Legislature. Further,
the Legislature has used the term “must” in its direction to the property
appraiser in section 95.18(7), Florida Statutes, indicating a legislative
mandate and obligation on the property appraiser to perform his duties
and responsibilities as legislatively directed.
In construing a statute the courts will review the purpose of the
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legislation, examining such things as the history of the act, the evil to be
corrected, the intention of the law-making body, the subject regulated,
and the object to be obtained by the legislation.13 As discussed above,
the legislative committee considering the statutory adverse possession
framework sought to rectify the lack of legislative guidance “regarding
how to administer the adverse possession return” and to clarify “when a
property appraiser may remove the adverse possessor from that parcel
information and remove the adverse possession return from the official
records.” This suggests that the Legislature intended Chapter 2012107, Laws of Florida, to be comprehensive in its treatment of adverse
possession claims not founded upon a written instrument.
You ask whether section 95.18(7), Florida Statutes, represents the
exclusive circumstances in which the property appraiser may remove
the adverse possession notation or whether the statute may provide
authority for the property appraiser to remove the notation under other
circumstances. The Legislature’s use of the term “must,” rather than
“may,” in section 95.18(7) makes your question a difficult one. While
“must” cabins the property appraiser’s discretion in relation to the
circumstances listed in section 95.18(7)(a) through (d), Florida Statutes,
that term does not on its face preclude action in other circumstances.
Nonetheless, I note that the Legislature in section 95.18(4)(c), Florida
Statutes, mandates the addition of the tax roll notation “upon the
submission of a return.” Having issued that mandate, it is up to
the Legislature to specify when the notation is no longer required.
Intentionally or not, the Legislature simply did not address the
circumstances spelled out in your letter. For that reason, and to preserve
the certainty and uniformity that the Legislature sought to achieve in
Chapter 2012-107, Laws of Florida, I conclude that a property appraiser
may not remove an adverse possession notation in circumstances other
than those listed in section 95.18(7), Florida Statutes.
In sum, it is my opinion that section 95.18(7), Florida Statutes, as
amended by section 1, Chapter 2012-107, Laws of Florida, constitutes
the legislatively prescribed method by which the property appraiser
may remove an adverse possession notation from the legal description
on the tax roll for claims of adverse possession without color of title.
Your letter poses several mixed questions of law and fact. The
Florida Attorney General is limited to addressing questions of law and
your questions have been reframed to allow this office to comment.
See s. 16.01(3), Fla. Stat., and Department of Legal Affairs Statement
Concerning Attorney General Opinions.
1
See The Florida Senate Bill Analysis and Fiscal Impact Statement for
SB 1142, dated March 31, 2011.
2
3
Id.
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Section 95.18(4), Fla. Stat. (2011).
See DR-452, Return of Real Property in Attempt to Establish Adverse
Possession Without Color of Title and 12DER12-16, Fla. Admin. C.,
effective 8/11.
5
6
See title to s. 95.18, Fla. Stat.
The word “must” is defined as “to be obliged or bound to by an imperative
requirement[,]” see Webster’s New Universal Unabridged Dictionary
p. 1269 (2003); and “[u]sed as an auxiliary to indicate: 1. Necessity or
obligation[,]” The American Heritage Dictionary p. 452 (office ed. 1983).
Thus, the word would appear to represent a legislative mandate.
7
8
Section 95.18(8), Fla. Stat. (2011).
9
Section 4, Ch. 2012-107, Laws of Fla.
See generally Art. II, s. 5(c), Fla. Const., stating that “[t]he powers
[and] duties of . . . county officers shall be fixed by law.”
10
Young v. Progressive Southeastern Ins. Co., 753 So. 2d 80, 85 (Fla.
2000), quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898,
900 (Fla. 1996).
11
White v. Crandon, 156 So. 303, 305 (Fla. 1934); Alsop v. Pierce, 19 So.
2d 799, 805-806 (Fla. 1944).
12
Smith v. Ryan, 39 So. 2d 281 (Fla. 1949); State Board of Accountancy
v. Webb, 51 So. 2d 296 (Fla. 1951); DeBolt v. Department of Health and
Rehabilitative Services, 427 So. 2d 221 (Fla. 1st DCA 1983); Ops. Att’y
Gen. Fla. 99-61 (1999) (in construing statute, court will consider its
history, the evil to be corrected, the purpose of the enactment, and the
state of the law already in existence), 98-82 (1998), and 96-07 (1996).
13
AGO 12-03 – January 25, 2012
COUNTIES – EMINENT DOMAIN – SURPLUS PROPERTY
COUNTY MUST FOLLOW REQUIREMENTS OF SECTION 73.013,
FLORIDA STATUTES, IN DISPOSAL OF PROPERTY ACQUIRED
THROUGH EMINENT DOMAIN
To: Mr. Andrew W. Mai, Osceola County Attorney
QUESTION:
May a county government which acquired a piece of property
through eminent domain proceedings less than 10 years ago
offer to sell the property back to the prior owner at a value less
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than what the county spent to acquire the property due to a
significant decline in the market value of the property?
SUMMARY:
Section 73.013(1)(f), Florida Statutes, directs that when less
than 10 years have elapsed since property has been obtained
through eminent domain proceedings, a county may sell such
property prior to conducting a competitive bid sale to the
previous owner from whom it was taken only for the amount
which the owner received as a result of the condemnation.
You state that in 2006, as a result of a proposed road-widening
project, the county acquired by eminent domain a 12,000 square foot
parcel with a single family residence thereon. The appraised value of
the property at the time of the taking was $357,500.00. The property
owner entered into a settlement agreement and received $399,000.00 as
full compensation for the taking. Subsequently, the county completed
the project, but only a portion of the parcel was used by the county. The
remaining portion of the parcel was recently assessed at $102,300.00,
due to declining market value. The county would prefer to offer the
property to the former owner at the current market value, rather
than the price for which it was acquired. You have advised the county
that section 73.013, Florida Statutes, does not provide authority for
the county to sell the parcel to the prior owner at a price other than
that which the owner received and that the only method whereby the
previous owner could acquire the property under these circumstances
would be through a public competitive bidding process as prescribed in
section 73.013(1)(f), Florida Statutes.
Section 73.013(1), Florida Statutes, provides:
Notwithstanding any other provision of law, including any
charter provision, ordinance, statute, or special law, if the
state, any political subdivision as defined in s. 1.01(8), or any
other entity to which the power of eminent domain is delegated
files a petition of condemnation on or after the effective date
of this section regarding a parcel of real property in this state,
ownership or control of property acquired pursuant to such
petition may not be conveyed by the condemning authority
or any other entity to a natural person or private entity, by
lease or otherwise, except that ownership or control of property
acquired pursuant to such petition may be conveyed, by lease
or otherwise, to a natural person or private entity:
*
*
*
(f) Without restriction, after public notice and competitive
bidding unless otherwise provided by general law, if less than
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10 years have elapsed since the condemning authority acquired
title to the property and the following conditions are met:
1. The condemning authority or governmental entity holding
title to the property documents that the property is no longer
needed for the use or purpose for which it was acquired by the
condemning authority or for which it was transferred to the
current titleholder; and
2. The owner from whom the property was taken by eminent
domain is given the opportunity to repurchase the property
at the price that he or she received from the condemning
authority[.]
The plain language of the act prohibits the conveyance of property
taken by eminent domain to a natural person or private entity, except
within the limited conditions set forth therein. The section authorizes
an authority to convey such property by competitive bid within 10 years
of its being obtained through eminent domain to a natural person or
private entity, only if two conditions are met. The authority must
document that the property is no longer needed for the use or purpose
for which it was acquired and the owner from whom the property was
taken is given the opportunity to repurchase the property at the price
received from the condemning authority. Legislative direction as to
how a thing is to be done prohibits its being done in any other way.1
Thus, in order to comply with section 73.013(1)(f), Florida Statutes,
the county must initially make the proper determination that the
condemned property is no longer needed for the use for which it was
acquired by eminent domain and the former owner from whom the
property was taken must be given the opportunity to repurchase
the property “at the price he or she received from the condemning
authority[.]” After these two conditions have been met, the county
may offer the property for sale to a natural person or private entity
through competitive bidding. I have not found, nor have you directed
my attention to, any statutory authorization to sell the subject property
to the former owner at a price other than that which the former owner
received as a result of the eminent domain proceedings, prior to the
condemned property being offered for sale by competitive bid.2 I cannot
say, however, that an authority would be precluded from selling the
remaining portion of previously condemned property (when a portion of
the property was not used for the public purpose) to the former owner
at a pro-rated price, based upon the amount that the owner received
as a result of the eminent domain proceeding, since to do so would not
appear to be contrary to the intended purpose of the law.
Accordingly, it is my opinion that pursuant to section 73.013(1)(f),
Florida Statutes, the county may not sell property it has obtained through
eminent domain proceedings less than 10 years ago to the previous
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owner for an amount other than that which the previous owner received
as a result of the taking. However, I cannot conclude that where only a
portion of the property has been used for the intended public purpose,
the county would be precluded from selling the remaining portion to
the former owner at a pro-rated price based on the amount the previous
owner received as a result of the eminent domain proceeding.
See Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle
Hotel, 56 So. 2d 341, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815, 817
(Fla. 1976).
1
Cf. s. 73.013(2)(b), Fla. Stat., stating that property obtained by eminent
domain less than 10 years ago which was transferred to a natural person
or private entity under the specific provisions in the statute may be sold,
after public notice and competitive bidding, to another natural person or
private entity, if: the current titleholder documents that the property
is no longer needed for the use or purpose for which the property was
transferred to the current titleholder; and the owner from which the
property was taken by eminent domain “is given the opportunity to
repurchase the property at the price that he or she received from the
condemning authority.”
2
AGO 12-04 – January 25, 2012
PUBLIC HOUSING AUTHORITIES – MUNICIPALITIES –
PUBLIC HOUSING
JURISDICTION OF CITY HOUSING AUTHORITY TO
EXCLUSIVELY ADMINISTER PUBLIC HOUSING PROJECTS
To: Ms. Bonnie Hochman Rothell, Attorney for the Lauderhill Housing
Authority
QUESTION:
Is the Lauderhill Housing Authority authorized by Florida
law to exercise exclusive jurisdiction over the administration of
all “housing projects” in the City of Lauderhill?
SUMMARY:
The Lauderhill Housing Authority is the exclusive agency
under provisions of general law that has been authorized
by the City of Lauderhill to exercise jurisdiction over the
administration of “housing projects” within the city.
You advise that you represent the Lauderhill Housing Authority
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and have joined with the authority’s General Counsel, Alfreda D.
Coward, Esq., to request an Attorney General Opinion on the issue of
the authority’s jurisdiction to serve as the public housing authority for
the City of Lauderhill under Florida law. You have not asked about a
particular housing program and my comments are, therefore, limited to
a general consideration of Florida law on this subject.
Part I, Chapter 421, Florida Statutes, the “Housing Authorities
Law”1 provides for the identification and clearance of slum areas in the
state and the provision of safe and sanitary dwelling accommodations
for persons of low income.2 The “area of operation” of an authority is
prescribed in section 421.03(6), Florida Statutes, which states that:
(a) In the case of a housing authority of a city having a
population of less than 25,000, [the area of operation] shall
include such city and the area within 5 miles of the territorial
boundaries thereof; and
(b) In the case of a housing authority of a city having a
population of 25,000 or more [the area of operation] shall
include such city and the area within 10 miles from the
territorial boundaries thereof; provided however, that the area
of operation of a housing authority of any city shall not include
any area which lies within the territorial boundaries of some
other city as herein defined; and further provided that the area
of operation shall not extend outside of the boundaries of the
county in which the city is located and no housing authority
shall have any power or jurisdiction outside of the county in
which the city is located.
Within its area of operation, a housing authority is empowered to
exercise “the public and essential governmental functions” set forth
in Chapter 421, Florida Statutes, which include, inter alia, the power
to contract, to rent and lease dwellings, operate housing projects, and
to invest funds not required for immediate disbursement in certain
property or securities.3 Specifically, a housing authority, such as the
Lauderhill Housing Authority, is empowered:
(2) Within its area of operation, to prepare, carry out,
acquire, lease, and operate housing projects; to provide for
the construction, reconstruction, improvement, alteration, or
repair of any housing project or any part thereof.
(3) To arrange or contract for the furnishing by any person
or agency, public or private, of services, privileges, works, or
facilities for, or in connection with, a housing project or the
occupants thereof . . . .
(4) To lease or rent any dwellings, houses, accommodations,
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lands, buildings, structures, or facilities embraced in any
housing project and, subject to the limitations contained in
this chapter, to establish and revise the rents or charges
therefor; to own, hold, and improve real or personal property;
to purchase, lease, obtain options upon, acquire by gift, grant,
bequest, devise, or otherwise any real or personal property or
any interest therein; to acquire by the exercise of the power
of eminent domain any real property; to sell, lease, exchange,
transfer, assign, pledge, or dispose of any real or personal
property or any interest therein; to insure or provide for the
insurance of any real or personal property or operations of the
authority against any risks or hazards; to procure or agree to
the procurement of insurance or guarantees from the Federal
Government of the payment of any such debts or parts thereof,
whether or not incurred by said authority, including the power
to pay premiums on any such insurance.
(6) Within its area of operation: to investigate into living,
dwelling, and housing conditions and into the means and
methods of improving such conditions; to determine where slum
areas exist or where there is a shortage of decent, safe, and
sanitary dwelling accommodations for persons of low income;
to make studies and recommendations relating to the problem
of clearing, replanning, and reconstruction of slum areas and
the problem of providing dwelling accommodations for persons
of low income; to administer fair housing ordinances and other
ordinances as adopted by cities, counties, or other authorities
who wish to contract for administrative services and to cooperate
with the city, the county, the state or any political subdivision
thereof in action taken in connection with such problems; and
to engage in research, studies and experimentation on the
subject of housing. (e.s.)
Based on the specific grant of authority to operate within its area
of operation, this office, in Attorney General Opinion 2002-43, stated
that “the Legislature has specified the manner in which a housing
authority may operate outside its jurisdiction, thereby precluding the
exercise of such powers in any other manner.” That opinion concluded
that a municipal housing authority and a county housing authority
could, by resolution, join or cooperate with each other or enter into an
interlocal agreement as a means to allow the county authority to assist
the municipal authority in its continued operation.4
An administrative agency or officer possesses no power not granted
by statute, either expressly or by necessary implication, and any
reasonable doubt as to the lawful existence of a particular power sought
to be exercised must be resolved against the exercise thereof.5 Implied
powers accorded administrative agencies must be indispensable to
powers expressly granted, that is, those powers which are necessarily
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or fairly or reasonably implied as an incident to those powers expressly
granted.6 Section 421.08, Florida Statutes, specifically addresses the
scope of the powers of housing authorities under Chapter 421, Florida
Statutes, by providing that such authorities “constitute a public body
corporate and politic, exercising the public and essential governmental
functions set forth in this chapter. . . .”
The Lauderhill Housing Authority was created by resolution of the
City Commission of the City of Lauderhill in 2002.7 The area of operation
for the Lauderhill Housing Authority is the City of Lauderhill and an
extraterritorial area of 10 miles outside the territorial boundaries of the
city.8 The authority is authorized by section 421.08, Florida Statutes,
and by its local enabling document to exercise the “public and essential
governmental functions” set forth in the “Housing Authorities Law.”9
Among these is the authority, within its area of operation, to prepare,
carry out and operate housing projects, and to arrange or contract for
the furnishing of services, privileges, or facilities for housing projects
or the occupants thereof.10 A “housing project” is defined in section
421.03(9), Florida Statutes, to include any work or undertaking:
(a) To demolish, clear, or remove buildings from any slum area;
such work or undertaking may embrace the adaption of such
area to public purposes, including parks or other recreational
or community purposes; or
(b) To provide decent, safe and sanitary urban or rural
dwellings, apartments or other living accommodations for
persons of low income; such work or undertaking may include
buildings, land, equipment, facilities and other real or personal
property for necessary, convenient or desirable appurtenances,
streets, sewers, water service, parks, site preparation,
gardening, administrative, community, health, recreational,
educational, welfare or other purposes; or
(c) To accomplish a combination of the foregoing. The term
“housing project” also may be applied to the planning of the
buildings and improvements, the acquisition of property,
the demolition of existing structures, the construction,
reconstruction, alteration and repair of the improvements and
all other work in connection therewith.
Therefore, it is my opinion that the Lauderhill Housing Authority
is the exclusive public body authorized by resolution of the City of
Lauderhill and by Florida’s “Housing Authorities Law” to exercise
jurisdiction over the administration of “housing projects,” as that term
is defined therein, within that city.
1
See s. 421.01, Fla. Stat., for the short title of the law.
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2
See s. 421.02, Fla. Stat.
3
Section 421.08(1) (5), Fla. Stat.
12-05
Section 421.27(3), Fla. Stat., provides that the area of operation of a
county housing authority “shall include all of the county for which it is
created except that portion of the county which lies within the territorial
boundaries of any city as defined in the Housing Authorities Law, as
amended.”
4
State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d
628 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974); City
of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493 (Fla. 1973).
5
See State v. Atlantic Coast Line R. Co., 47 So. 969, 974 (Fla. 1908);
Keating v. State, 167 So. 2d 46, 51 (Fla. 1st DCA 1964); Gardinier, Inc. v.
Department of Pollution Control, 300 So. 2d 75, 76 ( Fla. 1st DCA 1974);
St. Regis Paper Company v. State, 237 So. 2d 797, 799 (Fla. 1st DCA
1970); and Williams v. Florida Real Estate Commission, 232 So. 2d 239,
240 (Fla. 4th DCA 1970).
6
See Resolution 02R-08-139 of the City Commission of the City of
Lauderhill; and s. 421.04(1) and (2), Fla. Stat., providing for the creation of
housing authorities and that the governing body may do so by resolution.
7
Section 421.03(6)(b), Fla. Stat. This 10-mile extraterritorial area
cannot include “any area which lies within the territorial boundaries of
some other city” and “shall not extend outside of the boundaries of the
county in which the city is located[.]”
8
See s. 421.08, Fla. Stat., and Resolution 02R-08-139 of the City
Commission of the City of Lauderhill.
9
10
Section 421.08(2) and (3), Fla. Stat.
AGO 12-05 – January 25, 2012
MUNICIPALITIES – PENSIONS – POLICE AND
FIREFIGHTER PENSIONS – ORDINANCES – QUORUM
AMENDMENT OF CITY’S POLICE AND FIREFIGHTER PENSION
PLAN BY ORDINANCE
To: Ms. Darcee S. Siegel, City Attorney, City of North Miami Beach,
Florida
QUESTIONS:
1. Do sections 185.05 and 175.061(1)(a), Florida Statutes,
preclude the amendment of the City of North Miami Beach’s
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Police and Firefighters Pension Plan ordinance to add criteria
for selection of the Police and Firefighters Pension Plan Board’s
fifth member?
2. Do these statutes preclude amendment of the city’s
ordinance to add a provision defining what constitutes a quorum
of the board?
SUMMARY:
1. The City of North Miami Beach may not, by ordinance, add
criteria for selection of the Police and Firefighters Pension Plan
board’s fifth member.
2. No provisions of Chapter 175 or 185, Florida Statutes,
would preclude amendment of the city’s ordinance to add an
interest-based or constituency-based provision defining what
constitutes a quorum of the board of the Police and Firefighters
Pension Plan Board.
Chapters 175 and 185, Florida Statutes, respectively, create a uniform
pension and retirement system for firefighters and police officers in a
municipality and establish minimum standards for the operation and
funding of the trust funds.1 In considering these chapters, the court in
Florida League of Cities, Inc. v. Department of Insurance and Treasurer,2
stated:
Both chapters authorize two types of retirement or pension
plans. One type is known as “chapter plans” and the other
as “local law plans.” Chapter plans are those created under
chapters 175 and 185, and the provisions of those chapters are
controlling on the plans’ terms, conditions, and benefits. Local
law plans are those created either by special act of the legislature
or by municipal ordinance and contain provisions relating to
terms, conditions, and benefits that may substantially differ
from many requirements found in chapters 175 and 185 for
chapter plans.
The court determined that the individual sections in Chapters 175
and 185, Florida Statutes, are applicable to local law plans only if
there is a specific provision expressly making them applicable to such
plans.3 This conclusion was based on a recognition of a municipality’s
constitutional and statutory home rule powers.
Subsequent to the decision in Florida League of Cities, Inc. v.
Department of Insurance and Treasurer,4 the Legislature amended
Chapters 175 and 185, Florida Statutes, to address confusion over the
application of the statutory standards in these chapters to local law
plans.5 The expressed intention of this legislation was clearly stated in
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the staff analysis: “CS/HB 261, if enacted, would establish minimum
standards and benefits for ALL plans receiving funding under Chapters
175 or 185, F.S.”6 (emphasis in original) CS/HB 261 was enacted as
Chapter 99-1, Laws of Florida, amending the provisions of both Chapter
175 and 185, and became effective March 12, 1999.7
QUESTION 1.
You have asked whether the Police and Firefighters Pension Plan
Ordinance of the City of North Miami Beach may be amended to add
criteria for the selection of the Police and Firefighters Pension Plan
Board’s fifth member. You advise that the “Retirement Plan for Police
Officers and Firefighters of the City of North Miami Beach” is a “local
law plan” and that it includes both police officers and firefighters in one
plan as described in section 185.02(10), Florida Statutes.8 I would note
that Ordinance 89-18, the ordinance creating the North Miami Beach
retirement plan, states that the ordinance is intended to accomplish the
“establishment of a new pension plan for police officers and firefighters
pursuant to Chapters 175 and 185, Florida Statutes[.]”
Section 185.05(1), Florida Statutes, sets out the requirements for
board of trustees of police pensions.9 The statute creates a board of
trustees of the pension trust fund in each municipality and makes each
board solely responsible for administering the trust fund. The statute
also establishes the composition of the board if a local law plan covers
both firefighters and police officers by referring to requirements that
relate to chapter plans. Section 185.05(1)(b), Fla. Stat., provides that
the “membership of boards of trustees for local law plans shall be as
follows:
*
*
*
If a municipality has a pension plan for police officers and
firefighters, the provisions of paragraph (a) apply, except
that one member of the board shall be a police officer and
one member shall be a firefighter as defined in s. 175.032,
respectively, elected by a majority of the active firefighters and
police officers who are members of the plan.
In more detail, subsection (a) provides:
The membership of the board of trustees for chapter plans
consists of five members, two of whom, unless otherwise
prohibited by law, must be legal residents of the municipality
and must be appointed by the legislative body of the
municipality, and two of whom must be police officers as defined
in s. 185.02 who are elected by a majority of the active police
officers who are members of such plan. . . . The fifth member
shall be chosen by a majority of the previous four members, and
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such person’s name shall be submitted to the legislative body
of the municipality. Upon receipt of the fifth person’s name,
the legislative body shall, as a ministerial duty, appoint such
person to the board of trustees. The fifth member shall have
the same rights as each of the other four members appointed
or elected, shall serve as trustee for a period of 2 years, and
may succeed himself or herself in office. Each resident member
shall serve as trustee for a period of 2 years, unless sooner
replaced by the legislative body at whose pleasure the member
serves, and may succeed himself or herself as a trustee. Each
police officer member shall serve as trustee for a period of 2
years, unless he or she sooner leaves the employment of the
municipality as a police officer, whereupon a successor shall be
chosen in the same manner as an original appointment. Each
police officer may succeed himself or herself in office. The terms
of office of the appointed and elected members of the board of
trustees may be amended by municipal ordinance or special act
of the Legislature to extend the terms from 2 years to 4 years.
The length of the terms of office shall be the same for all board
members.
Thus, section 185.05(1), Florida Statutes, does not impose any
qualifications on the “fifth member” of a board of trustees of a local law
plan.10
However, subsection (7) of section 185.05, Florida Statutes, specifically
provides that “[t]he provisions of this section may not be altered by a
participating municipality operating a chapter or local law plan under
this chapter.” Thus, the statutory scheme relating to the composition
of the board of trustees for firefighter and police pensions may not be
altered by a municipality participating in a local law plan such as the
City of North Miami Beach.
Based on the clear language of section 185.05(7), Florida Statutes,
which states that participating municipalities operating either a chapter
or local law plan are precluded from altering the provisions of section
185.05, Florida Statutes, it is my opinion that the City of North Miami
Beach may not by ordinance add criteria for selection of the Police and
Firefighters Pension Plan board’s fifth member to a municipal ordinance.
The addition of such criteria would effectively “alter” the provisions of
section 185.05, Florida Statutes, in contradiction of section 185.05(7).
However, this would not preclude the board members who are choosing
the fifth member from considering the particular qualifications of any
potential board member.
QUESTION 2.
You also ask whether these statutes preclude amendment of the city’s
ordinance to add a provision defining what constitutes a quorum of the
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board. The proposed ordinance amendment you have provided suggests
an interest-based or constituency-based quorum requirement.
The general powers and duties of boards of trustees for municipal
firefighter and police pension plans are prescribed by section 185.06,
Florida Statutes, which, by its terms applies to “any municipality,
chapter plan, local law municipality, or local law plan under this
chapter[.]”11 Subsection (2) of the statute provides:
Any and all acts and decisions shall be effectuated by vote of
a majority of the members of the board; however, no trustee
shall take part in any action in connection with his or her own
participation in the fund, and no unfair discrimination shall be
shown to any individual employee participating in the fund.12
However, no provision of either Chapter 185 or 175, Florida Statutes,
prescribes the composition of a quorum for purposes of conducting
business. While the City of North Miami Beach may not alter the
provisions of subsection (2) relating to voting, in the absence of any
provision of these chapters delineating quorum requirements, it would
appear that this is a subject upon which the city may legislate.13
A “quorum” is generally defined as “[t]he minimum number of
members (usu. a majority of all the members) who must be present for
a deliberative assembly to legally transact business.”14 (e.s.) Thus,
the most common statutory quorum requirements simply provide the
number of members who must be present in order to conduct business.
Included within the definitions of the term “quorum” is an “interestbased quorum” which is defined as “[a] quorum determined according
to the presence or representation of various constituencies. — Also
termed constituency-based quorum.”15 The language of your proposed
ordinance amendment appears to be in the nature of an interest-based
or constituency-based quorum which would require that a city resident
member of the board and a plan member of the board be present in
order to constitute a quorum. While the Florida Statutes contain a
few instances of “interest-based quorums,” the vast majority of quorum
requirements merely speak to the requirement of a majority of the
members16 or prescribe a definite number of members17 necessary
to constitute a quorum. Because the Florida Statutes do contain
legislative examples of interest-based quorums,18 I am of the opinion
that a municipality could legislate in a similar fashion.19
Thus, it is my opinion that these statutes do not preclude amendment
of the city’s ordinance to add a provision defining what constitutes a
quorum of the board of the city’s Police and Firefighters Pension Plan
Board.
1
See ss. 175.021 and 185.01, Fla. Stat.
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2
540 So. 2d 850, 853 (Fla. 1st DCA 1989).
3
Id. at 859.
4
Id.
See 1999 Florida House of Representatives Staff Analysis on CS/HB
261, p. 2, dated 2/4/1999.
5
6
Id. at p. 4.
7
See s. 83, Ch. 99-1, Laws of Fla.
See Ordinance 89018, City of North Miami Beach and email from
Darcee Siegel, City Attorney, dated November 10, 2011.
8
9
And see s. 175.061, Fla. Stat., relating to firefighter pensions.
10
This language parallels that of s. 175.061(1), Fla. Stat.
11
See also s. 175.071, Fla. Stat.
12
And see s. 175.071(2), Fla. Stat.
See Art. VIII, s. 2(b), Fla. Const., and s. 166.021, Fla. Stat., and Florida
League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.
2d 850 (Fla. 1st DCA 1989).
13
14
See “quorum,” Black’s Law Dictionary, p. 1284 (8th ed. 2004).
15
Id.
16
See, e.g., ss. 14.29 and 43.291, Fla. Stat.
17
See, e.g., ss. 39.702, 69.021, and 106.24, Fla. Stat.
See, e.g., s. 194.015, Fla. Stat., relating to value adjustment boards
and providing that “[a]ny three members shall constitute a quorum of
the board, except that each quorum must include at least one member
of said governing board, at least one member of the school board, and at
least one citizen member and no meeting of the board shall take place
unless a quorum is present[;]” s. 298.11(3), Fla. Stat., relating to water
control districts and stating that “[t]he owners and proxy holders of
district acreage who are present at a duly noticed landowners’ meeting
shall constitute a quorum for the purpose of holding such election or any
election thereafter.”
18
Section 166.021, Fla. Stat., recognizes that, under Florida’s Municipal
Home Rule Powers Act and s. 2(b), Art. VIII, State Const., a municipality
has the power to enact legislation “concerning any subject matter upon
which the state Legislature may act” with certain inapplicable exceptions.
19
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AGO 12-06 – January 25, 2012
POWERS OF ATTORNEY – MILITARY
EFFECT OF CHANGES TO FLORIDA’S POWER OF ATTORNEY
ACT ON VALIDITY OF MILITARY SPRINGING
POWERS OF ATTORNEY
To: Colonel Paul E. Kantwill, U.S. Army, Office of the Under Secretary
of Defense
QUESTION:
Does the second sentence of section 709.2108(3), Florida
Statutes, limit the first sentence or will all “springing” powers of
attorney prepared pursuant to 10 U.S.C. section 1044b1 continue
to be accepted in Florida?
SUMMARY:
The second sentence of section 709.2108(4), Florida Statutes,
does not limit the first sentence of that statute and all “springing”
powers of attorney prepared pursuant to 10 U.S.C. section 1044b
will continue to be accepted in Florida.
Florida’s Power of Attorney Act, Part II, Chapter 709, Florida
Statutes, was substantially amended during the 2011 Legislative
Session.2 As described in the final bill analysis for Chapter 2012-210,
Laws of Florida,
A power of attorney is a legal document in which a principal
authorizes a person or entity (the agent or attorney-in-fact) to
act on his or her behalf. There are three basic types of power
of attorney: general power of attorney, which ceases when the
principal becomes incapacitated; durable power of attorney,
which continues once the person becomes incapacitated; and
springing or contingent power of attorney, which power of
attorney becomes effective upon the occurrence of a specified
event.3
The bill was a comprehensive revision of the statutes that regulate
powers of attorney in the State of Florida.4
Among the provisions of Part II, Chapter 709, Florida Statutes, as
rewritten, is section 709.2108, Florida Statutes, providing that all
powers of attorney become effective upon execution, with the exception
of powers of attorney based on military deployment. Subsection (3)
of this statute provides that a power of attorney that it is to become
effective at a future date or upon the occurrence of a future event or
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contingency is ineffective with limited exceptions. The exceptions to
this provision include those expressed in section 709.2106(4), Florida
Statutes, which states that:
A military power of attorney5 is valid if it is executed in
accordance with 10 U.S.C. s. 1044b, as amended.6 A deployment
contingent power of attorney may be signed in advance, is
effective upon the deployment of the principal, and shall be
afforded full force and effect by the courts of this state.
The first sentence of this statute is a legislative acknowledgment
of the broad language of the federal provisions relating to military
powers of attorney and the second sentence reiterates that deploymentcontingent powers of attorney continue to be valid in Florida.
The language contained in the second sentence of section 709.2106(4),
Florida Statutes, to the effect that a deployment-contingent power of
attorney shall be afforded full force and effect in Florida courts was
previously contained in section 709.11, Florida Statutes (2010), as an
independent, stand-alone statute. The amendment of Part II, Chapter
709, by CS/SB 670, Florida 2011 Legislative Session, appears to have
taken the language previously existing in section 709.11, Florida
Statutes (2010), and added the language existing in the Uniform Power
of Attorney Act which provides that a power of attorney executed other
than in Florida is valid in this state if the execution of the power of
attorney complied with the requirements for a military power of
attorney pursuant to 10 U.S.C. section 1044b.7 Nothing contained in
the legislative history of CS/SB 670, Florida 2011 Legislative Session,
suggests that the Legislature intended that the second sentence of
section 709.2106(4), Florida Statutes, would in any way limit application
or construction of the first sentence.8
Based upon a review of the legislative history for Chapter 2012-210,
Laws of Florida, it appears that the inclusion of the second sentence of
this statute merely represents a consolidation of references to military
powers of attorney into one statutory subsection and not a limitation on
the provision expressed in the first sentence. Not all military powers
of attorney may be deployment-contingent and the Florida Legislature
intended to affirm the continued validity in this state’s courts of
deployment-contingent powers of attorney as well as other military
powers of attorney executed in accordance with 10 U.S.C. section 1044b.
In sum, it is my opinion that the second sentence of section 709.2108(3),
Florida Statutes, does not limit the first sentence of that statute and all
“springing” powers of attorney prepared pursuant to 10 U.S.C. section
1044b will continue to be accepted in Florida.
1
10 U.S.C. s. 1044b provides that military powers of attorney are exempt
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from any requirements of form, substance, formality, or recording that is
provided for powers of attorney under the laws of any State and must be
given the same legal effect as a power of attorney prepared and executed
as required by the laws of that State.
2
See Ch. 2012-210, Laws of Fla.
See Final Bill Analysis, CS/SB 670, Florida 2011 Legislative Session,
May 4, 2011.
3
4
Id.
A “military power of attorney” is defined in 10 U.S.C.A. s. 1044b as
“any general or special power of attorney that is notarized in accordance
with section 1044a of this title or other applicable State or Federal law.”
5
6
See n.1 supra.
See s. 106(c)(2), Uniform Power of Attorney Act, drafted by the National
Conference of Commissioners on Uniform State Laws (2006).
7
See Final Bill Analysis, CS/SB 670, Florida 2011 Legislative Session,
and Bill Analysis and Fiscal Impact Statement on CS/SB 670, dated April
1, 2011, The Florida Senate 2011 Session; audio podcasts of committee
hearings of Florida Senate considering CS/SB 670: Judiciary Committee
hearing of 03/14/11; Banking and Insurance Committee hearing of
03/29/11, and Rules Committee hearing of 04/05/11.
8
AGO 12-07 – January 25, 2012
SECURITY OF COMMUNICATIONS – LAW ENFORCEMENT –
TELEPHONE CALLS – RECORDING – INTERCEPTION
CIRCUMSTANCES UNDER WHICH MUNICIPAL POLICE
DEPARTMENT AUTHORIZED TO RECORD ALL INCOMING AND
OUTGOING TELEPHONE CALLS
To: Chief J. Philip Thorne, Springfield Police Department
QUESTIONS:
1. Pursuant to Chapter 934, Florida Statutes, if a telephone
call to the Springfield Police Department is initially answered
with a verbal notice that the line is recorded, is a periodic, audible
beep sufficient notice to a caller who has been transferred that
the telephone line he or she is speaking on is recorded or is the
police department obligated to further notify the caller that the
transferred call is being recorded?
2. Pursuant to Chapter 934, Florida Statutes, is the Springfield
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Police Department required, when an agency employee makes a
call outside the department on agency equipment, to notify the
person receiving the call that the line is recorded or must the
department purchase and maintain non-recorded phone lines
for outgoing calls?
SUMMARY:
1. Once a caller has been given notice that his or her telephone
call into the Springfield Police Department is being recorded, a
periodic, audible beep would appear to be sufficient notice to
that caller that a transferred call continues to be recorded.
2. Pursuant to Chapter 934, Florida Statutes, the Springfield
Police Department must request permission from the recipient
of any outgoing call from the police department which the
department intercepts and records unless such outgoing call
is placed to the telephone number from which an emergency
assistance call was made in order to obtain information required
to provide requested emergency services.
According to your letter, the Springfield Police Department has a
generally advertised telephone number for citizens to call and report
crimes, ask questions, and seek service. This phone system consists
of five sequential lines that automatically “roll-over” from the primary
number to the next if the previous number is busy. All of these lines
are digitally recorded. Although you state that life-saving information
or evidence to further a criminal investigation may be relayed on these
lines, you have not asked about or asserted that this is a 911 number
or a public safety answering point.1 Rather, your questions relate
generally to the provisions of Chapter 934, Florida Statutes, Florida’s
Security of Communications law.
QUESTION 1.
Chapter 934, Florida Statutes, was enacted by the Florida
Legislature in order to assure personal rights of privacy in oral and wire
communications.2 The legislative findings in section 934.01(4), Florida
Statutes, reflect the Legislature’s concern for protecting the privacy
rights of the state’s citizens. In enacting Chapter 934, the Legislature
expressly undertook to “define the circumstances and conditions
under which the interception of wire and oral communications may
be authorized and to prohibit any unauthorized interception of such
communications and the use of the contents thereof in evidence in
courts and administrative proceedings.”3 In enacting Chapter 934,
Florida Statutes, the Legislature stated that
[t]o safeguard the privacy of innocent persons, the interception
of wire or oral communications when none of the parties to
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the communication has consented to the interception should
be allowed only when authorized by a court of competent
jurisdiction and should remain under the control and
supervision of the authorizing court. Interception of wire and
oral communications should further be limited to certain major
types of offenses and specific categories of crime with assurance
that the interception is justified and that the information
obtained thereby will not be misused.4
Section 934.03(1), Florida Statutes, generally makes it unlawful to
willfully intercept, endeavor to intercept, or procure any other person
to intercept or endeavor to intercept any wire or oral communication.5
“Oral communication” is defined by section 934.02(2), Florida Statutes,
as
any oral communication uttered by a person exhibiting
an expectation that such communication is not subject to
interception under circumstances justifying such expectation
and does not mean any public oral communication uttered at a
public meeting or any electronic communication.
The Florida Supreme Court has interpreted the test set forth in this
definition as substantially the same test used in a Fourth Amendment
right to privacy analysis.6 Thus, for a conversation to qualify as “oral
communication,” the speaker must have an actual subjective expectation
of privacy in his oral communication and that expectation of privacy
must be recognized by society as reasonable under the circumstances.7
As stated by the Florida Supreme Court in State v. Inciarrano,8
This expectation of privacy does not contemplate merely
a subjective expectation on the part of the person making
the uttered oral communication but rather contemplates a
reasonable expectation of privacy. A reasonable expectation
of privacy under a given set of circumstances depends upon
one’s actual subjective expectation of privacy as well as whether
society is prepared to recognize this expectation as reasonable.
Shapiro v. State, 390 So. 2d 344 (Fla. 1980), cert. denied, 450
U.S. 982, 101 S.Ct. 1519, 67 L.Ed.2d 818 (1981).
To prevail Inciarrano must not only have had a subjective
expectation of privacy, but also his expectation under the
circumstances must have been one that society is prepared to
recognize as reasonable. (emphasis in original)
Such a determination, therefore, will depend upon the particular
facts. The courts have considered such factors in determining whether
intercepted communications qualify as “oral communication” protected
under security of communication statutes to include the location in
which the conversation or communication occurs, the manner in which
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the communication is made, and the kind of communication.9 Thus, the
test to be applied in determining whether a conversation will qualify
as an “oral communication,” protected by Chapter 934, is two-pronged:
the speaker must have an actual subjective expectation of privacy in his
oral communication; and that expectation of privacy must be recognized
by society as reasonable under the circumstances.10
Florida’s Security of Communications law recognizes several
exceptions to the general prohibition against interception of
communications for law enforcement agencies. Section 934.03(2)(c),
Florida Statutes, provides that:
It is lawful under ss. 934.03-934.09 for an investigative or law
enforcement officer or a person acting under the direction of
an investigative or law enforcement officer to intercept a wire,
oral, or electronic communication when such person is a party to
the communication or one of the parties to the communication
has given prior consent to such interception and the purpose of
such interception is to obtain evidence of a criminal act.
The statute also recognizes that it is lawful under the act for an
employee of “a law enforcement agency as defined by s. 934.02(10) . . .
with published emergency telephone numbers” or “[a]n agency operating
an emergency telephone number ‘911’ system established pursuant to
s. 365.171”
to intercept and record incoming wire communications;
however, such employee may intercept and record incoming
wire communications on designated “911” telephone numbers
and published nonemergency telephone numbers staffed by
trained dispatchers at public safety answering points only.
It is also lawful for such employee to intercept and record
outgoing wire communications to the numbers from which such
incoming wire communications were placed when necessary to
obtain information required to provide the emergency services
being requested.
However, you have not suggested that either of these exemptions applies
to your situation and this office has not been presented with any factual
material suggesting that either exemption applies.
The statute recognizes the authority of a law enforcement agency
with published emergency telephone numbers or “911” capabilities to
intercept and record incoming and certain outgoing wire communications
so long as those answering the telephones are trained dispatchers at
public safety answering points. As a penal statute, Chapter 934, Florida
Statutes, must be narrowly construed such that the enumeration of
limited exceptions to its coverage may be inferred to mean that no other
exceptions are intended.11
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The statute also includes a consent exception to the prohibition
against interception of wire communications. Section 934.03(2)(d),
Florida Statutes, states that it is lawful under sections 934.03-934.09,
Florida Statutes, “for a person to intercept a wire, oral, or electronic
communication when all of the parties to the communication have given
prior consent to such interception.” This provision would appear to
control your situation. According to your letter, “[u]pon answering a
call from any of the outside lines, employees answer with the following
greeting: ‘Springfield Police; this line is recorded; how may I help you?’”
Further, your system, after the transfer of the call to the requested party
and during the course of the conversation with the citizen, provides an
audible beep to alert the caller that the line continues to be recorded.
It is my opinion that these notices to the caller may be sufficient to
alert him or her that the communication in which they are involved
is being recorded and to imply consent on their part to any continued
interception and recording of the conversation.12
Thus, it is my opinion that, having alerted the caller that the call is
being recorded, a periodic, audible beep is sufficient notice to a caller
to the Springfield Police Department that a transferred call continues
to be recorded and could be understood to constitute consent for the
communication to be recorded as provided in section 934.03(2)(d),
Florida Statutes.13
QUESTION 2.
You have also asked whether, when an employee of your agency
makes an outgoing call on an intercepted and recorded telephone line,
the police department is required to notify the recipient of that call that
the line is a recorded line in order to comply with Chapter 934, Florida
Statutes.
As discussed above, in enacting Chapter 934, Florida Statutes, the
Legislature expressly undertook to “define the circumstances and
conditions under which the interception of wire and oral communications
may be authorized and to prohibit any unauthorized interception of
such communications and the use of the contents thereof in evidence
in courts and administrative proceedings.”14 Chapter 934 authorizes
the interception and recording of outgoing wire communications “to
the numbers from which such incoming wire communications were
placed when necessary to obtain information required to provide the
emergency services being requested[;]”15 and “when all of the parties
to the communication have given prior consent to such interception.”16
Thus, to be lawful under sections 934.03-934.09, Florida Statutes,
the Springfield Police Department must request permission from the
recipient of any outgoing call from the police department which the
department intercepts and records unless such outgoing call is placed
to the telephone number from which an emergency assistance call was
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made in order to obtain information required to provide requested
emergency services.
Finally, I would note that any recordings of telephone conversations
made by the Springfield Police Department in the usual course of
business would be public records subject to the inspection, copying,
and retention requirements of Chapter 119, Florida Statutes. Any
such public records would likewise be subject to the exemption and
confidentiality provisions of the Public Records Law.17
A “public safety answering point” is defined in s. 365.172(3)(a), Fla.
Stat., as “the public safety agency that receives incoming 911 calls and
dispatches appropriate public safety agencies to respond to the calls.” I
would note that the Florida Emergency Communications Number E911
State Plan indicates that the Panama City Police Department and the
Bay County Sheriff’s Department operate the primary safety answering
points in Bay County with two secondary answering points (the Bay
Medical Center EMS and the Bay County Emergency Operations Center)
and that “[c]alls for law enforcement agencies are transferred or relayed
by telephone or radio.” See s. 9.3. p. 37, State of Florida E911 Plan,
revised 10/18/2010.
1
See s. 934.01, Fla. Stat., reflecting the legislative findings for enactment
of Ch. 934, Fla. Stat.
2
3
Section 934.01(2), Fla. Stat.
The Legislature also expressed its finding in s. 934.01(3), Fla.
Stat., that “[o]rganized criminals make extensive use of wire and oral
communications in their criminal activities. The interception of such
communications to obtain evidence of the commission of crimes or to
prevent their commission is an indispensable aid to law enforcement
and the administration of justice.” Toward that end, the Legislature
has created certain exceptions for law enforcement agencies. See, e.g., s.
934.03(2)(c), Fla. Stat., stating that “[i]t is lawful under ss. 934.03 934.09
for an investigative or law enforcement officer or a person acting under
the direction of an investigative or law enforcement officer to intercept
a wire, oral, or electronic communication when such person is a party to
the communication or one of the parties to the communication has given
prior consent to such interception and the purpose of such interception is
to obtain evidence of a criminal act.”
4
See s. 934.03(4), Fla. Stat., prescribing penalties for violations of the
statute. Any criminal action would be brought by the state attorney for
the judicial circuit where the incident occurred. And see s. 934.10, Fla.
Stat., prescribing civil remedies. See also s. 934.06, Fla. Stat., prohibiting
the use of such intercepted wire or oral communications as evidence.
Cf. State v. Mozo, 655 So. 2d 1115 (Fla. 1995), citing United States v.
Nelson, 837 F.2d 1519 (11th Cir.), cert. denied, 488 U.S. 829, 109 S.Ct.
5
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82, 102 L.Ed.2d 58 (1988) (actual “interception” of a communication
occurs not where the call is ultimately heard or recorded but where the
communication originates).
See Mozo v. State, id. at n.5; Stevenson v. State, 667 So. 2d 410 (Fla. 1st
DCA 1996).
6
Id. And see Jackson v. State, 18 So. 3d 1016 (Fla. 2009), cert. denied,
130 S.Ct. 1144 (2010); State v. Smith, 641 So. 2d 849, 852 (Fla. 1994). Cf.
State v. Sarmiento, 397 So. 2d 643 (Fla. 1981) (definition of “interception
of private communications,” in context of prohibition under Art. I, s. 12,
Fla. Const., against such interception, is a function of one’s reasonable
expectation of privacy).
7
8
473 So. 2d 1272, 1275 (Fla. 1985).
See Stevenson v. State, 667 So. 2d 410 (Fla. 1st DCA 1996). And see
Department of Agriculture and Consumer Services v. Edwards, 654 So.
2d 628 (Fla. 1st DCA 1995) (finding no justifiable expectation of privacy
in statements due to number of persons present when statements were
made, place chosen for persons present when statements were made,
place chosen for interview, and very nature of interview).
9
10
And see State v. Smith, 641 So. 2d 849 (Fla. 1994).
11
Under the rule “expressio unius est exclusio alterius,” a statute
enumerating the things upon which it operates is ordinarily to be construed
as excluding from its operation those things not expressly mentioned.
Thayer v. State, 335 So. 2d 815 (Fla. 1976); Ideal Farms Drainage District
v. Certain Lands, 19 So. 2d 234 (Fla. 1944). And see Copeland v. State,
435 So. 2d 842 (Fla. 2d DCA 1983), pet. for review denied, 443 So. 2d 980
(Fla. 1983), concluding that portions of the Security of Communications
Act authorizing interception of wire or oral communications are statutory
exceptions to federal and state constitutional rights of privacy and must
be strictly construed. And see Ops. Att’y Gen. Fla. 02-56 (2002) and 76195 (1976).
12
This office would suggest that a distinction can be made between
notifying a caller that their entire call is being recorded and that the
particular telephone line is being recorded. The former would appear to
more clearly alert a caller to the fact that a transferred call continues to
be recorded.
Cf. U.S. v. Horr, 963 F.2d 1124, 1126 (8th Cir. 1992) (defendant
implicitly consented to monitoring by using the telephone after receiving
notice of monitoring) and McWatters v. State, 36 So. 3d 613 (Fla. 2010)
(no reasonable expectation of privacy in calls made after defendant was
advised that call was subject to monitoring and recording).
13
14
Section 934.01(2), Fla. Stat.
15
Section 934.03(2)(g), Fla. Stat.
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16
Section 934.03(2)(d), Fla. Stat. And see Op. Att’y Gen. Fla. 02-56
(2002).
See, e.g., s. 365.171(12), Fla. Stat., relating to recordings obtained by
public agencies for providing services in an emergency and the information
contained therein which may be confidential and exempt from the Public
Records Law; s. 119.071(2)(c)1., Fla. Stat., exempting active criminal
information and active criminal investigative information from public
inspection; and s. 119.071(2)(j)1., Fla. Stat., authorizing certain victim
information to be maintained as confidential if the victim of the crime
requests, in writing, the confidentiality of that information.
17
AGO 12-08 – February 28, 2012
CONCEALED WEAPONS – COURTS – JUDGES
JUDGE’S AUTHORITY TO DETERMINE WHO MAY CARRY
CONCEALED WEAPON IN COURTROOM
To: The Honorable Scott J. Silverman, Circuit Judge, Eleventh Circuit
of Florida
QUESTION:
May a bailiff possessing a concealed weapons permit carry a
concealed weapon in the county courthouse with the permission
of the presiding judge?
SUMMARY:
A presiding judge may determine who will carry a concealed
weapon in his or her courtroom and such determination
necessarily allows the individual to proceed through the
courthouse in order to access the courtroom.
You state that pursuant to section 790.06, Florida Statutes, you have
authorized your bailiff to carry a concealed weapon in your courtroom.
Your bailiff has a current concealed weapons permit and is certified by
the National Rifle Association as a law enforcement firearms instructor.1
Section 790.06, Florida Statutes, authorizes the Department of
Agriculture and Consumer Services to issue licenses to carry concealed
weapons or concealed firearms.2 Any person in compliance with the
licensure requirements may carry a concealed weapon, but must
carry the license, along with valid identification, at all times while in
possession of the concealed weapon.3
Section 790.06(12)(a), Florida Statutes, however, in pertinent part,
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states:
A license issued under this section does not authorize any
person to openly carry a handgun or carry a concealed weapon
or firearm into:
4.
Any courthouse;
5. Any courtroom, except that nothing in this section
would preclude a judge from carrying a concealed weapon or
determining who will carry a concealed weapon in his or her
courtroom[.] (e.s.)
The plain language of section 790.06(12)(a)5., Florida Statutes,
exempts from the prohibition against concealed weapons in a courtroom
a judge and anyone who is determined by the judge to be authorized
to carry a concealed weapon in his or her courtroom. The statute
recognizes the authority of a judge to designate individuals who may
carry a concealed weapon in his or her courtroom.
An express power duly conferred by statute may include the implied
authority to use the means necessary to carry out the express power.4
Thus, where the plain language of the statute authorizes a judge to
designate those individuals authorized to carry a concealed weapon
in his or her courtroom and the statute acknowledges that nothing in
the section will preclude such authority, logic would dictate that the
individual so authorized would be able to carry the concealed weapon
through the courthouse in order to access the courtroom in which he or
she is authorized to carry the weapon.5
While I have been unable to locate a local court rule for Miami-Dade
County relating to the carrying of concealed weapons, as an illustrative
point, I would note that the Sixth Judicial Circuit in Pasco County
has adopted a rule relating to court security which states: “Except
for judges, bailiffs, and law enforcement officers as provided in this
paragraph, no person possessing a firearm, taser, electronic control
weapon, ammunition, knife, mace, pepper spray, or dangerous weapon
may enter or occupy a court facility.”6 (e.s.) Thus, other circuits have
recognized that bailiffs are authorized to carry weapons in a courtroom
or the court area of a courthouse.
Accordingly, it is my opinion that a presiding judge may determine
who will carry a concealed weapon in his or her courtroom and such
determination necessarily allows the individual to proceed through the
courthouse in order to access the courtroom.
It is presumed that since you indicate that your bailiff has a current
concealed weapons permit, he or she is not acting as a certified law
1
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enforcement officer for purposes of the exemption in s. 790.051, Fla. Stat.,
which exempts law enforcement officers from the licensing and penal
provisions of the chapter “when acting at any time within the scope or
course of their official duties or when acting at any time in the line of or
performance of duty.”
2
Section 790.06(1), Fla. Stat.
3
Id.
Cf. State ex rel. Greenburg v. Florida State Board of Dentistry, 297 So.
2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974);
City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493 (Fla.
1973) (a statutorily created entity may only exercise such powers as have
been expressly granted by law or may be necessarily implied therefrom in
order to carry out an expressly granted power).
4
See Florida State University v. Jenkins, 323 So. 2d 597 (Fla. 1st DCA
1975) (implied power must be essential in order to carry out the expressly
granted power or duty imposed); Gardinier, Inc. v. Florida Department
of Pollution Control, 300 So. 2d 75 (Fla. 1st DCA 1974) (implied powers
accorded administrative agencies must be indispensable to powers
expressly granted).
5
Administrative Order No. 2009-083 PA-CIR, Sixth Judicial Circuit in
and for Pasco and Pinellas Counties, Fla.
6
AGO 12-09 – February 28, 2012
COUNTIES – SPECIAL ASSESSMENTS –EMERGENCY
MEDICAL SERVICES
LEVY OF COUNTY EMERGENCY MEDICAL SERVICE
ASSESSMENT
To: Mr. CJ Thompson, Baker County Manager
QUESTION:
Pursuant to section 125.271, Florida Statutes, may Baker
County levy a special assessment for emergency medical
services?
SUMMARY:
Section 125.271, Florida Statutes, authorizes qualifying
counties, including Baker County, to fund the costs of emergency
medical services through the levy of a “county emergency
medical service assessment” pursuant to sections 1 and 9 of
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Article VII, Florida Constitution, which authorize local taxes as
provided by general law.
You ask whether section 125.271, Florida Statutes, which authorizes
“county emergency medical service assessments,” would provide
authority for Baker County to fund emergency medical services as set
forth therein. The statute provides that:
(1) As used in this section, the term “county” means:
(a) A county that is within a rural area of critical economic
concern as designated by the Governor pursuant to s. 288.0656;
(b) A small county having a population of 75,000 or fewer on
the effective date of this act which has levied at least 10 mills
of ad valorem tax for the previous fiscal year; or
(c) A county that adopted an ordinance authorizing the
imposition of an assessment for emergency medical services
prior to January 1, 2002.
Once a county has qualified under this subsection, it always
retains the qualification.
(2) A county may fund the costs of emergency medical services
through the levy of a special assessment that apportions the
cost among the property based on a reasonable methodology
that charges a parcel in proportion to its benefits.
(3) The authorization provided in this section shall be
construed to be general law authorization pursuant to ss. 1 and
9 of Art. VII of the State Constitution.
(4) All special assessments for emergency medical services
levied by a county prior to the effective date of this section are
ratified and validated in all respects if they would have been
valid had this section been in effect at the time they were
levied; however, this subsection shall not validate assessments
in counties with litigation challenging the validity of an
assessment pending on January 1, 2002.1
Baker County has been designated a part of the North Central
Florida Rural Area of Critical Economic Concern by the Governor
pursuant to section 288.0656, Florida Statutes.2 Thus, Baker County
would qualify as a “county” within the scope of section 125.271(1)(a),
Florida Statutes, and is authorized to levy a “county emergency medical
service assessment” as provided therein.
This office has received a memorandum of law from an interested
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party in this matter suggesting that the issue of the imposition of a
special assessment for emergency medical services has been resolved
by the Florida Supreme Court and that such services cannot be funded
by special assessment as they cannot be determined to provide a special
benefit to the assessed property, a fundamental requirement of special
assessments. The Florida Supreme Court addressed the question of
whether a special assessment could be used to fund emergency medical
services in City of North Lauderdale v. SMM Properties, Inc., a 2002
Florida Supreme Court case.3 In that case the Court relied on a twopart test to review the validity of the city’s special assessment4 and held
that “emergency medical services did not provide a special benefit to the
assessed property because such services benefit people, not property.”
Further, the Court suggested that “the emergency medical services
portion of the special assessment has the indicia of a tax because it fails
to provide a special benefit to real property.”5
The situation you describe in Baker County is distinguishable
from the decision in the City of North Lauderdale, however, in that
the Legislature has specifically recognized that “[t]he authorization
provided in [section 125.271, Florida Statutes] shall be construed to be
general law authorization pursuant to ss. 1 and 9 of Art. VII of the State
Constitution[,]”6 i.e., a tax authorized by general law.7
The Florida Supreme Court has explained the distinction between
special assessments and taxes in a number of cases including City of
Boca Raton v. State,8 in which the Court explained that:
[A] legally imposed special assessment is not a tax. Taxes and
special assessments are distinguishable in that, while both are
mandatory, there is no requirement that taxes provide any
specific benefit to the property; instead, they may be levied
throughout the particular taxing unit for the general benefit of
residents and property. On the other hand, special assessments
must confer a specific benefit upon the land burdened by the
assessment. . . . As explained in Klemm v. Davenport:9
A tax is an enforced burden of contribution imposed by sovereign
right for the support of the government, the administration of
the law, and to execute the various functions the sovereign is
called on to perform. A special assessment is like a tax in that
it is an enforced contribution from the property owner, it may
possess other points of similarity to a tax but it is inherently
different and governed by entirely different principles. It is
imposed upon the theory that that portion of the community
which is required to bear it receives some special or peculiar
benefit in the enhancement of value of the property against
which it is imposed as a result of the improvement made with
the proceeds of the special assessment. It is limited to the
property benefitted, is not governed by uniformity and may be
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determined legislatively or judicially.10
While the Legislature has used the term “assessment” in section
125.271, Florida Statutes, the Legislature has identified the assessment
as a general tax, authorized pursuant to Florida constitutional provisions
and available to those counties falling within the scope of the definition
of “county” in that statute.11
In sum, it is my opinion that section 125.271, Florida Statutes,
authorizes qualifying counties, including Baker County, to fund the
costs of emergency medical services through the levy of a “county
emergency medical service assessment” pursuant to sections 1 and
9 of Article VII, Florida Constitution, which authorize local taxes as
provided by general law.
A statute is presumptively valid and must be obeyed and given effect
unless and until judicially declared invalid. Falco v. State, 407 So. 2d 203
(Fla. 1981); Belk James, Inc. v. Nuzum, 358 So. 2d 174, 177 (Fla. 1978);
Evans v. Hillsborough County, 186 So. 193, 196 (Fla. 1938). The Attorney
General cannot declare statute unconstitutional or invalid or advise any
officer to disregard legislative direction or mandate. On the contrary,
statute is presumed to be constitutional and must be given effect until
judicially declared invalid. Cf. Pickeril v. Schott, 55 So. 2d 716 (Fla. 1951)
and State ex rel. Atlantic Coastline R. Co. v. State Board of Equalizers, 94
So. 681, 682 (Fla. 1922).
1
See State of Florida, Office of the Governor, Executive Order Numbers
03-74 (2003) and 08-132 (2008).
2
3
825 So. 2d 343 (Fla. 2002).
4 To be considered a valid special assessment, an assessment must satisfy
a two-pronged test: first, “the property burdened by the assessment must
derive a ‘special benefit’ from the service provided by the assessment” and
second, “the assessment for the services must be properly apportioned.”
Desiderio Corporation v. City of Boynton Beach, 39 So. 3d 487, 493 (Fla.
4th DCA 2010) citing Lake County v. Water Oak Management Corp., 695
So. 2d 667, 669 (Fla. 1997).
5
6
Id. at 350.
Section 125.271(3), Fla. Stat.
7
And see Senate Staff Analysis and Economic Impact Statement, CS/
SB 2178, s. III. “Effect of Proposed Changes,” dated Feb. 26, 2002 (“The
CS includes language providing that the authorization provided in this
new section ‘shall be construed to be general law authorization pursuant
to ss. 1 and 9 of Art. VII, of the State Constitution’ – a tax authorized by
general law”).
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595 So. 2d 25 (Fla. 1992). See also City of North Lauderdale v. SMM
Properties, Inc., 825 So. 2d 343 (Fla. 2002); Collier County v. State, 733
So. 2d 1012, 1016 17 (Fla. 1999).
8
9
10
100 Fla. 627, 631 34, 129 So. 904, 907-908 (1930).
595 So. 2d 25 at 29 (Fla. 1992).
A statute is presumptively valid and must be obeyed and given effect
unless and until judicially declared invalid. Falco v. State, 407 So. 2d 203
(Fla. 1981); Belk-James, Inc. v. Nuzum, 358 So. 2d 174, 177 (Fla. 1978);
Evans v. Hillsborough County, 186 So. 193, 196 (Fla. 1938).
11
AGO 12-10 – February 28, 2012
DUAL OFFICE-HOLDING – SPECIAL OFFICERS FOR
CARRIERS – RAILROADS – RESERVE OFFICERS – LAW
ENFORCEMENT OFFICERS
SPECIAL OFFICER FOR RAILROAD SIMULTANEOUSLY
SERVING AS RESERVE OFFICER WITHOUT PAY FOR LOCAL
LAW ENFORCEMENT AGENCY
To: Mr. George Gingo, Attorney for Mr. Clifford Webster
QUESTION:
Whether a special officer for a carrier under Chapter 354,
Florida Statutes, may serve simultaneously as an unpaid reserve
deputy sheriff without violating the Florida constitutional
prohibition against dual office-holding?
SUMMARY:
A special officer for a carrier under Chapter 354, Florida
Statutes, may serve simultaneously as an unpaid reserve deputy
sheriff without violating the Florida constitutional prohibition
against dual office-holding expressed in Article II, section 5(a),
Florida Constitution.
According to your letter, Mr. Webster has been a Brevard County
deputy sheriff for the past 17 years and recently left the sheriff’s office
to take a position as a special officer for the Florida East Coast Railway
Police Department. As described in section 354.01, Florida Statutes,
Mr. Webster is a special officer for a carrier appointed by the Governor.
Mr. Webster is considering volunteering his time with a local law
enforcement agency as a reserve officer without remuneration, but is
concerned that the Florida constitutional prohibition against dual officeholding could preclude his service in both positions. You have asked for
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my assistance in determining whether Mr. Webster may lawfully serve
simultaneously in both capacities.
Chapter 354, Florida Statutes, provides for the appointment of
special officers employed by railroads and other common carriers for the
protection of the carrier’s employees, passengers, freight, equipment,
and properties.1 Appointments of special officers for carriers are
made by the Governor, and applicants are required to meet specified
law enforcement qualifications.2 While special officers are required to
meet the standards of a certified law enforcement officer in order to
be commissioned, certification is not granted to these officers.3 Section
354.02, Florida Statutes, provides for the powers of such special officers:
Each special officer shall have and exercise throughout every
county in which the common carrier for which he or she was
appointed, shall do business, operate, or own property, the
power to make arrests for violation of law on the property of
such common carrier, and to arrest persons, whether on or
off such carrier’s property, violating any law on such carrier’s
property, under the same conditions under which deputy
sheriffs may by law make arrests, and shall have authority to
carry weapons for the reasonable purpose of their offices.
These officers are required to provide a surety bond to the Governor for
the faithful performance of their duties.4 The statutes prescribe a term
of office for special officers and they may be removed by the Governor
at any time.5 Compensation for special officers is paid by the carrier
and they receive no fees or salary from the state or any county.6 Your
question requires a determination of whether this position constitutes
an “office” for purposes of Florida’s dual office-holding prohibition.
Article II, section 5(a) of the Florida Constitution, provides in
pertinent part:
No person shall hold at the same time more than one office
under the government of the state and the counties and
municipalities therein, except that a notary public or military
officer may hold another office, and any officer may be a member
of a constitution revision commission, taxation and budget
reform commission, constitutional convention, or statutory
body having only advisory powers.
This constitutional provision prohibits a person from simultaneously
serving in more than one “office” under the governments of the
state, counties, or municipalities. This office has concluded that the
constitutional prohibition applies to both elected and appointed offices.7
While the Constitution does not define the term “office,” the courts have
stated that the term “implies a delegation of a portion of the sovereign
power . . . [and] embraces the idea of tenure, duration, and duties in
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exercising some portion of the sovereign power, conferred or defined by
law and not by contract.”8
This office and the courts have long recognized that law enforcement
officers are “officers” subject to the constitutional dual office-holding
prohibition.9 The Florida Supreme Court has said:
It can hardly be questioned that a patrolman on a city
police force is clothed with sovereign power of the city while
discharging his duty. . . . True, he is an employee of the city but
he is also an officer. It is the character of duty performed that
must determine his status.10
It is the powers that a law enforcement officer may exercise,
particularly the authority to arrest without a warrant and to carry
firearms in carrying out his duties, not the salary or certification
requirements, that characterize the law enforcement officer as an
“officer.”11 Based on these considerations, this office has stated that a
certified reserve police officer is an “officer” for purposes of section 5(a),
Article II, Florida Constitution.12
However, the Supreme Court of Florida has recognized a limited
exception to the constitutional dual office-holding prohibition in Vinales
v. State,13 which concerned the appointment of municipal police officers
as state attorney investigators pursuant to statute. Since the police
officers’ appointment was temporary and no additional remuneration
was paid for performing the additional criminal investigative duties,
the Court held that the officers were not simultaneously holding two
offices and thus the constitutional dual office-holding prohibition did
not apply. The Second District Court of Appeal in Rampil v. State,14
following the Vinales exception, concluded that it was not a violation
of Article II, section 5(a), Florida Constitution, for a city police officer
to act in the capacity of deputy sheriff since that officer received no
remuneration for such duties.
The exception articulated in Vilales and Rampil has been applied only
when both offices have related to criminal investigation or prosecution
and not to the exercise of governmental power or performance of official
duties on a disparate board or position. Thus, this office, in considering
the Vinales and Rampil exception, has stated that the exception
is limited and does not apply to a member of a municipal board of
adjustment serving as a part time law enforcement officer or to a police
officer who serves as a law enforcement officer.15 Likewise, in Attorney
General Opinion 2006-27, this office concluded that the exception to
dual office-holding recognized by the courts in Vinales and Rampil
does not permit the police chief to serve as acting city manager without
resigning his or her office.
Based upon the powers extended to special officers for carriers, I
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conclude that these officers would come within the scope of the term
“officers” for purposes of Florida’s constitutional prohibition against dual
office-holding, i.e., they are commissioned by the Governor, serve terms
of office, have powers of arrest, and carry firearms. However, based on
the exception recognized in the Vinales case for law enforcement officers
performing additional law enforcement duties without remuneration, it
is my opinion that Mr. Webster may simultaneously serve as a special
officer and volunteer his time with a local law enforcement agency as
an unpaid reserve officer without violating Article II, section 5(a) of the
Florida Constitution.16
In sum, it is my opinion that a special officer for a carrier under
Chapter 354, Florida Statutes, may serve simultaneously as an unpaid
reserve deputy sheriff without violating the Florida constitutional
prohibition against dual office-holding expressed in Article II, section
5(a), Florida Constitution.
1
Section 354.01, Fla. Stat.
2
Id.
As to training requirements, see s. 943.13(1) - (10), Fla. Stat. And see
Sunset Review of Railroads, Chs. 351, 354, and s. 361.025, Fla. Stat.,
prepared by the Staff of the Florida House of Representatives Committee
on Regulatory Reform, November 1991.
3
4
Section 354.03, Fla. Stat.
See s. 354.05, Fla. Stat., which provides that a special officer’s
commission shall continue so long as he or she is employed in that
capacity by the railroad or other common carrier.
5
6
Section 354.04, Fla. Stat.
7
See, e.g., Op. Att’y Gen. Fla. 80-97 (1980).
State ex rel. Holloway v. Sheats, 83 So. 508, 509 (Fla. 1919). And see
State ex rel. Clyatt v. Hocker, 22 So. 721 (Fla. 1897).
8
See, e.g., Curry v. Hammond, 16 So. 2d 523, 524 (Fla. 1944); Maudsley
v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA 1974); Ops.
Att’y Gen. Fla. 57-165 (1957), 58-26 (1958), 69-2 (1969), 71-167 (1971),
72-348 (1972), 76-92 (1976), 77-89 (1977), 86-11 (1986), and 89-10 (1989).
9
10
Curry v. Hammond, id.
Maudsley v. City of North Lauderdale, 300 So. 2d 304 (Fla. 4th DCA
1974). See State ex rel. Gibbs v. Martens, 193 So. 835, 837 (Fla. 1940),
in which the Court held that a probation officer was an “officer” since he
had the right to arrest without a warrant for “no right is more sacred or
11
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more jealously guarded than the one that liberty shall not be infringed
except by due process of law.” And see Ops. Att’y Gen. Fla. 89-10 (1989),
stating that the absence of a requirement that police officers file financial
disclosure forms required of “public officials” does not alter their status as
“officers” for purposes of dual office-holding.
See Op. Att’y Gen. Fla. 77-63 (1977). And see Op. Att’y Gen. Fla. 86-105
(1986) concluding that auxiliary police officers who did not have authority
to make arrests but who were certified, carried firearms and assisted
regular police officers in carrying out their duties were “officers.” Compare
Op. Att’y Gen. Fla. 89-10 (1989) concluding that an administrative
law enforcement position, having no law enforcement certification
requirements or arrest powers and not authorized to independently
exercise the sovereign powers of the state, is an employment and not an
office for purposes of dual office-holding.
12
13
394 So. 2d 993 (Fla. 1981).
14
422 So. 2d 867 (Fla. 2d DCA 1982).
See Op. Att’y Gen. Fla. 84 25 (1984). And see Op. Att’y Gen. Fla. 8684 (1986) (Vinales and Rampil exceptions do not apply to a city council
member simultaneously serving as a certified auxiliary law enforcement
officer).
15
This office has stated that a part-time auxiliary or certified reserve
police officer is an “officer” for purposes of s. 5(a), Art. II, Fla. Const. See,
e.g., Ops. Att’y Gen. Fla. 86-105 (1986) and 77-63 (1977).
16
AGO 12-11 – April 25, 2012
LEGAL NOTICE – NEWSPAPERS
NEWSPAPER MUST BE PUBLISHED WEEKLY OR MORE OFTEN
FOR ONE YEAR PRIOR TO PUBLICATION OF LEGAL NOTICE
To: Mr. John B. Lynch, City Manager, City of Lynn Haven
QUESTION:
Is a local newspaper which published on a bi-weekly1 basis
for more than one year, but recently began publishing on a
weekly basis qualified for publication of legal notices pursuant
to Chapter 50, Florida Statutes?
SUMMARY:
A newspaper which has not been published on a weekly or
more often schedule for one year prior to the first publication of
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12-11
a legal notice would not qualify for publication of a legal notice
pursuant to Chapter 50, Florida Statutes.
You state that the city is exploring ways in which to reduce the
expense of publishing legal notices. Currently, there is only one
newspaper in the county which will publish public legal notices and you
feel the newspaper’s rates for such publications are excessive. You have
contacted a locally-owned newspaper with a circulation of 5000 which
prior to July 2011, was published on a twice-monthly basis. Since July,
2011, the paper has been published on a weekly basis. The question has
arisen whether a paper which has been publishing on a twice-monthly
basis for more than a year, but publishing on a weekly basis only since
July 2011, would meet the requirement of having been in existence for
one year.
Section 50.011, Florida Statutes, provides that any statutorily
prescribed legal notice, advertisement, or publication be published:
in a newspaper printed and published periodically once a week
or oftener, containing at least 25 percent of its words in the
English language, entered or qualified to be admitted and
entered as periodicals matter at a post office in the county
where published, for sale to the public generally, available
to the public generally for the publication of official or other
notices and customarily containing information of a public
character or of interest or of value to the residents or owners
of property in the county where published, or of interest or of
value to the general public.2 (e.s.)
In addition, section 50.031, Florida Statutes, requires, in part, that
such newspapers
at the time of such publication shall have been in existence for 1
year and shall have been entered as periodicals matter at a post
office in the county where published, or in a newspaper which
is a direct successor of a newspaper which together have been
so published; provided, however, that nothing herein contained
shall apply where in any county there shall be no newspaper
in existence which shall have been published for the length of
time above prescribed. (e.s.)
While there is an exception provided in section 50.031, Florida
Statutes, for counties in which there has been no newspaper in existence
that has been published for the requisite time, it would not appear to be
applicable to Bay County in which your city is located.3
In sections 50.011 and 50.031, Florida Statutes, the Legislature has
prescribed detailed minimum requirements a newspaper must meet
before it qualifies for publication of legal notices. This office has stated
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that strict compliance with these minimum requirements forecloses the
prospect of a successful due process challenge to the notice provided.4
Moreover, this office has consistently maintained that the one-year
requirement applies to both the existence of a newspaper within the
scope of section 50.031, Florida Statutes, and to the length of time that
such material must have been circulated as periodical material.5 This
conclusion is supported by the statutory requirements for the uniform
affidavit used to establish proof of publication which includes the
statement that the newspaper “is a newspaper published at __, in said
__ County, Florida, and that the said newspaper has heretofore been
continuously published in said __ County, Florida, each __ and has been
entered as periodicals matter at the post office in __, in said __ County,
Florida, for a period of 1 year next preceding the first publication of the
attached copy of advertisement[.]”6
In Attorney General Opinion 96-25, this office concluded that the joint
publication of a city’s legal notices in a weekly newspaper published
and circulated within the city at no charge, but with no second class
mailing permit, and in a neighboring city’s weekly newspaper with
limited circulation within the subject city, but with a second class
mailing permit, did not satisfy the publication requirements of section
50.011, Florida Statutes. Citing the prescribed detailed minimum
requirements in sections 50.011 and 50.031, Florida Statutes, that a
newspaper must meet before it qualifies for publication of legal notices,
the opinion found strict compliance with the minimum requirements
was the only means to foreclose the prospect of a successful due process
challenge to the notice provided.7 Neither of the papers used by the
city independently met the requirements for publication of legal notice
prescribed in Chapter 50, Florida Statutes.
In light of the potential legal consequences of insufficient legal notice
and this office’s previous opinions determining that strict compliance
with the minimum requirements of the statute must be met, it would
appear advisable to publish a legal notice in a newspaper that has
complied with all of the minimum requirements for at least one year
prior to the date of the first publication of a public legal notice.8
Accordingly, it is my opinion that a newspaper which has not been
published on a weekly or more often schedule for one year prior to the
first publication of a legal notice does not qualify for publication of a
legal notice pursuant to Chapter 50, Florida Statutes.
1
The term “bi-weekly” is used to denote a publication every two weeks.
See Op. Att’y Gen. Fla. 90-67 (1990), stating that a newspaper which
meets the requirements of ss. 50.011 and 50.031, Fla. Stat., may be
utilized for the publication of notices of proposed municipal ordinances as
required in s. 166.041(3)(a), Fla. Stat. And see Op. Att’y Gen. Fla. 96-25
2
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(1996).
You indicate the Panama City News Herald, currently a daily
newspaper published in Bay County, publishes legal notices.
3
See, e.g., Ops. Att’y Gen. Fla. 73-149 (1973) (publication in newspaper
not meeting the requirements of s. 50.011, Fla. Stat., does not meet the
requirements of due process of law); 94-24 (1994). And see Daytona
Leisure Corporation v. City of Daytona Beach, 539 So. 2d 597, 599 (Fla.
5th DCA 1989) (measures passed in contravention of notice requirements
are invalid if not strictly enacted pursuant to statutory requirements).
4
See Ops. Att’y Gen. Fla. 02-70 (2002) and 94-24 (1994). And see Ops.
Att’y Gen. Fla. 41-38 (1941), at p. 70; 64-150 (1964); 73-149 (1973); and
74-125 (1974). The earlier opinions refer to “second class mail.” Sections
21 and 22, Chapter 99-2, Laws of Florida, respectively amended ss.
50.011 and 50.031 to conform to the redesignation of second-class matter
as periodicals by the United States Postal Service.
5
6
See s. 50.051, Fla. Stat.
See Op. Att’y Gen. Fla. 73-149 (1973) (due process requirements are
not met by publication in newspaper not meeting the requirements of s.
50.011, Fla. Stat.).
7
See Ideal Farms Drainage District v. Certain Lands, 19 So. 2d 234 (Fla.
1944); Forsythe v. Longboat Key Beach Erosion Control District, 604 So.
2d 452 (Fla. 1992) (all parts of a statute must be read together in order
to achieve a consistent whole); State ex rel. Ashby v. Haddock, 140 So. 2d
631 (Fla. 1st DCA 1962).
8
AGO 12-12 – April 25, 2012
AIRPORT AUTHORITY – PUBLIC PROPERTY – BONDS –
LITTLE MILLER ACT – CONTRACTORS
WHETHER PAYMENT AND PERFORMANCE BOND MAY BE
REQUIRED FOR CONSTRUCTION ON AIRPORT AUTHORITY
PROPERTY
To: Mr. Kenneth W. Wright, Counsel for the Sanford Airport Authority
QUESTION:
Is a private for-profit party, which is occupying public land
pursuant to a long term lease with the public land owner, the
Sanford Airport Authority, in which the tenant is authorized to
contract to construct a private building, required to obtain a
performance and payment bond for such construction pursuant
to section 255.05, Florida Statutes?1
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SUMMARY:
A private for-profit party occupying public land pursuant to a
long term lease with the Sanford Airport Authority must obtain
a performance and payment bond pursuant to section 255.05,
Florida Statutes, for construction of improvements which will
be owned by the airport authority.
The Sanford Airport Authority was created by special act of the
Legislature as a dependent special district to the municipality.2 Its
members are appointed by the city commission which has the authority
to remove the members for misfeasance, malfeasance or willful neglect
of duty.3 In addition, the authority is required to submit its budget
to the city commission for approval.4 In reviewing its duties and
responsibilities, this office concluded that the Sanford Airport Authority
was an agency of the city.5 You have asked whether the airport authority
may amend its lease with a private party to remove a requirement that
a payment and performance bond be obtained by the private party for
construction on airport property and whether such action would expose
the airport authority, and consequently the municipality, to potential
liability for not requiring compliance with section 255.05, Florida
Statutes.
Florida law has long recognized the rights of laborers, materialmen,
and subcontractors to seek payment through statutory bonding
requirements for a contractor’s failure to furnish compensation.6 The
current statutory mechanisms for enforcing that policy are payment
and performance bonds for public works projects under section 255.05,
Florida Statutes, and payment bonds and construction liens for
private property under Part I, Chapter 713, Florida Statutes, Florida’s
“Construction Lien Law.”7 The legislative scheme set out in section
255.05, Florida Statutes, is designed to provide protection for those
providing work and materials on public projects because a mechanics’
lien cannot be perfected against public property.8
Section 255.05(1)(a), Florida Statutes, about which you have
specifically inquired, provides, in part, that:
Any person entering into a formal contract with the state or
any county, city, or political subdivision thereof, or other public
authority or private entity, for the construction of a public
building, for the prosecution and completion of a public work,
or for repairs upon a public building or public work shall be
required, before commencing the work or before recommencing
the work after a default or abandonment, to execute, deliver to
the public owner, and record in the public records of the county
where the improvement is located, a payment and performance
bond with a surety insurer authorized to do business in this
state as surety.
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Thus, the statute requires that a contractor for the construction of a
public building or public works project generally guarantee the prompt
payment of persons who furnish labor, services, or materials through
the use of a payment bond.9
The statute relating to public contractors’ bonds was patterned after
the federal Miller Act10 and was intended to establish for Florida a little
Miller Act whose general aim is to equate suppliers to public projects
against which materialmen’s liens are not available with those suppliers
to private projects enjoying the security of a lien.11 The statute is also
designed to afford protection to both the surety on the project and the
public. The bond itself protects the public, as project “owner,” from
two distinct defaults by a builder: the payment portion of the bond
contains the insurer’s undertaking to guarantee that all subcontractors
and materialmen will be paid and the performance part of the bond
guarantees that the contract will be fully performed.12 Further, Florida
court’s have recognized that “section 255.05 places a corresponding duty
on the public agency, as well as the contractor, to see that a bond is in
fact posted for the protection of the subcontractors before construction
commences.”13
As a statute designed to protect various interests, including those of
subcontractors, contractors, sureties, and the public, the straightforward
language of the statute sets forth a clear and simple method of bonding
payment for, and performance of, public construction projects.14
Florida’s little Miller Act is remedial in nature and thus, is entitled to a
liberal construction, within reason, to effect its intended purpose.15 The
statute has existed as a part of the Florida Statutes since 1915.16
Your question is whether the construction project contemplated
to be undertaken by the private for-profit party in this case involves
construction of a public building or a public work or repairs to a public
building or public work. Because it appears that the improvements
made to property owned and leased by the Sanford Airport Authority
are the property of the airport authority, it is my opinion that any such
project is subject to section 255.05, Florida Statutes.
The terms “public building or public work” are not defined by section
255.05, Florida Statutes. You have indicated by the terms of your
question that the construction contemplated is a building constructed
for private use on public land owned by the Sanford Airport Authority. A
“public work” within the scope of the federal Miller Act has been defined
as “project[s] carried on either directly by public authority or with
public aid to serve the interests of the general public.” The Eleventh
Circuit, in a recent federal Miller Act case,17 commented that the court
had not yet defined what makes a construction project a “public work”
within the meaning of the Miller Act, nor does the Miller Act itself
provide a definition. In attempting to identify what may constitute
a “public work” for Miller Act purposes, the Eleventh Circuit looked
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to a U. S. Supreme Court case involving a project authorized under
federal recovery legislation. In that earlier case, United States ex rel.
Noland Co. v. Irwin,18 the U. S. Supreme Court concluded that a library
constructed on the campus of Howard University was a “public work”
within the meaning of the Miller Act because it was constructed with
funds from the federal government and was established to serve the
interest of the general public, despite the fact that Howard University
was a private institution and held title to the land and the buildings.
There is no clearly articulated test identified by the courts for
determining whether a project is a “public work of the United States,”
within the scope of the federal Miller Act, but several factors have been
identified as indicia of such a project. Court cases suggest that factors
relevant to this determination include: whether the United States is
a contracting party, an obligee to the bond, an initiator or ultimate
operator of the project; whether the work is done on property belonging
to the United States; or whether the bonds are issued under the Miller
Act.19
A number of these factors which have been identified by the courts
are absent from the Orlando Sanford Airport Southeast Ramp Hangar
Development, Inc., project under consideration here. For example, you
have indicated that this construction project is to be privately funded.
However, government funding has never been the determinative factor
in considering whether the Miller Act applies. Rather, “[i]t must be
true that either (1) the subcontractors and suppliers of material could
assert an action for equitable recovery against the United States or one
of its agencies, or (2) normal state labor and material lien remedies are
unavailable because of federal ownership of the lands.”20 The terms of
the lease between the Sanford Airport Authority and the lessee clearly
make any improvements made, the property of the airport authority.
As public property cannot be the subject of a labor and material lien
remedy under Chapter 713, Florida Statutes, the assertion that this
project is not a “public work” would appear to foreclose any claim a
subcontractor or materialman might have against this property which
is clearly owned by a governmental entity.
The terms of Ground Lease Number 2003-08 between the Sanford
Airport Authority and the Orlando Sanford Airport Southeast Ramp
Hangar Development, Inc., clearly address the nature of improvements
and alterations to airport authority property. Section 20 of the lease
provides that:
All such improvements hereinafter made or placed on the
Premises (including any fixtures purchased by Lessee) shall
immediately become the property of the Lessor, subject to the
terms of the Lease and shall remain upon and be surrendered
with the Project as a part thereof at the termination, by lapse
of time or otherwise, of the term hereby granted. Lessee shall
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not enter into any agreement whatsoever, nor do or permit the
doing of anything, which would create, constitute or impose
any cloud on the title to or lien upon the Land, the Project, or
the Premises, or any part of or interest in any of them.
Thus, improvements to the leased property are the property of the
Sanford Airport Authority, a dependent special district of the City
of Sanford and a governmental entity. While section 22.J. of the
Ground Lease specifically requires lessee Orlando Sanford Airport
Southeast Ramp Hangar Development, Inc., to provide a payment and
performance bond in accordance with section 255.05, Florida Statutes,
for any improvements it may make to the property, you advise that this
provision may be eliminated from the lease. Regardless of the removal
of the payment and performance bond requirement, however, section
20 of the lease appears to control the determination of the nature of
the improvements made and whether this construction project is a
“public work.” In reading the little Miller Act liberally to effectuate its
purpose to provide protection for those providing work and materials
on projects involving public property and to protect public property from
liens, I am compelled to conclude that section 255.05, Florida Statutes,
would require a performance and payment bond for construction to be
undertaken on land owned by the Sanford Airport Authority.
In sum, it is my opinion that a private for-profit party occupying
public land pursuant to a long term lease with the Sanford Airport
Authority must obtain a performance and payment bond for such
construction under section 255.05, Florida Statutes, for construction of
improvements which will be owned by the airport authority.
1
I would note that you posed this question to my office in November 2011
and received an informal response concluding that the ground lease for
this property, which contained a provision requiring the lessee Orlando
Sanford Airport Southeast Ramp Hangar Development, Inc., to provide a
payment and performance bond in accordance with s. 255.05, Fla. Stat.,
for any improvements made to the property, would control. See Inf. Op. to
Wright, dated January 3, 2012. You have resubmitted your question and
advised this office that the authority is considering a request to remove
the provision requiring a performance bond from the lease. Thus, you ask
for reconsideration of this question.
2
See Ch. 71 924, Laws of Fla., as amended by Ch. 05-306, Laws of Fla.
3
See Ch. 71 924, Laws of Fla.
4
See s. 12, Ch. 71 924, supra.
See Inf. Op. to Rep. Starks, dated March 25, 1997, and concluding that,
because the authority was an agency of the city, a position on the airport
authority board would be subject to the constitutional dual office-holding
5
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prohibition.
See, e.g., Art. XVI, s. 22, Fla. Const. (1885), which provided that
“[t]he Legislature shall provide for giving to mechanics and laborers an
adequate lien on the subject matter of their labor[,]”and “History,” s.
255.05 and Part I, Ch. 713, Fla. Stat.
6
See s. 713.001, Fla. Stat., for the short title of Part I, Ch. 713, Fla. Stat.
Projects involving real property and the improvements thereon owned
by the state or any county, municipality, school board, or governmental
agency, commission, or political subdivision are excluded from coverage
under Part I, Ch. 713, Fla. Stat. See s. 713.01(26), Fla. Stat., defining
“real property” for purposes of this part to exclude governmental property.
7
See American Home Assurance Company v. Plaza Materials Corp., 908
So. 2d 360 (Fla. 2005), Coastal Caisson Drill Co. v. American Casualty Co.
of Reading, Pa., 523 So. 2d 791, 793 (Fla. 2d DCA 1988), approved, 542
So. 2d 957 (Fla. 1989); William H. Gulsby, Inc. v. Miller Construction Inc.,
of Leesburg, 351 So. 2d 396, 397 (Fla. 2d DCA 1977).
8
The statute also provides that, in lieu of the bond required by s. 255.05,
Fla. Stat., a contractor may file an alternative form of security which may
include cash, a money order, a certified check, a cashier’s check, or an
irrevocable letter of credit. See s. 255.05(7), Fla. Stat.
9
See 40 U.S.C.A. ss. 3131 - 3134 (formerly codified as 40 U.S.C.A. ss.
270a - 270d).
10
Delduca v. U.S. Fidelity & Guarantee Co., 357 F.2d 204, (5th Cir. Fla.
1966), rehearing denied, 362 F.2d 1012 (5th Cir. Fla. 1966). And see City
of Ocala v. Continental Casualty Co., 127 So. 326 (Fla. 1930); Collins for
Use and Benefit of Dixie Plywood Co. of Tampa v. National Fire Insurance
Co. of Hartford, 105 So. 2d 190 (Fla. 2d DCA 1958).
11
See American Home Assurance Company, supra n.8 at 363; and Coastal
Caisson, supra n.8 at 793.
12
See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942
(Fla. 4th DCA 1995) (county liable to subcontractor which had supplied
materials for public guardrail project where estimated annual amount
of guardrail contract was $250,000, where county failed to ensure that
contractor post a payment and performance bond before construction
commenced, and where contractor had become insolvent, making it
impossible for subcontractor to collect on default judgment against
contractor) and citing Warren v. Glens Falls Indem. Co., 66 So. 2d 54 (Fla.
1953) and Pavex Corp. v. Broward County Board of County Commissioners,
498 So. 2d 1317, 1318 (Fla. 4th DCA 1986), review dismissed, 509 So. 2d
118 (Fla. 1987).
13
14
15
American Home Assurance Company, supra n.8.
See, e.g., Aquatic Plant Management, Inc. v. Paramount Engineering,
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Inc., 977 So. 2d 600 (Fla. 4th DCA 2007); Runyon Enterprises, Inc. v. S.T.
Wicole Construction Corporation of Florida, Inc., 677 So. 2d 909 (Fla. 4th
DCA 1996); Gergora v. R.L. Lapp Forming, Inc., 619 F.2d 387 (1980).
16
See s. 1, Ch. 6867, Laws of Fla. (1915).
Scarborough v. Carotex Const., Inc., 420 Fed. Appx. 870 (11th Cir.
2011).
17
United States ex rel. Noland Co. v. Irwin, 316 U.S. 23, 28-30, 62 S.Ct.
899, 902, 86 L.Ed. 1241 (1942).
18
19
Operating Eng’rs Health & Welfare Trust Fund v. JWJ Contracting
Co., 135 F.3d 671, 675 (9th Cir. 1998), cited by the 11th Circuit in
Scarborough v. Carotex Const., Inc., 420 Fed. Appx. 870 (11th Cir. 2011).
See United States ex rel. Mississippi Road Supply Co. v. H.R. Morgan,
Inc., 542 F.2d 262, 265 (5th Cir. 1976), cert. denied, 434 U.S. 828, 98 S.Ct.
106, 54 L.Ed.2d 86 (1977), citing U.S. ex rel. Miller v. Mattingly Bridge
Co., 344 F.Supp. 459, 462 (W.D. Ky. 1972), overruled on other grounds,
554 F.2d 164 (5th Cir. 1977); FMI Contracting Corp. v. Fed. Ins. Co., 829
S.W.2d 907 (Tex.App.-Fort Worth 1992) (under the two-pronged test
of the Morgan case, this case falls under the Miller Act because of the
impossibility of any remedy in state court due to the federal ownership of
the land), citing F.D. Rich Co. v. United States ex rel. Industrial Lumber
Co., 417 U.S. 116, 122, 94 S.Ct. 2157 at 2161, 40 L.Ed.2d 703 at 709
(1974).
20
AGO 12-13 – April 25, 2012
PERMITS – STATE OF EMERGENCY – GOVERNOR –
MUNICIPALITIES – DEVELOPMENT
WHETHER MUNICIPALITY’S SITE PLAN APPROVAL
CONSTITUTES DEVELOPMENT ORDER FOR PURPOSES OF
TOLLING AND EXTENSION
To: Mr. Samuel S. Goren and Mr. Jacob G. Horowitz, Attorneys for the
City of Tamarac
QUESTIONS:
1. Does a site plan approval by the City of Tamarac constitute
a development order for purposes of section 252.363(1)(a)1.,
Florida Statutes?
2. If the answer to Question One is in the affirmative, does
the City of Tamarac have an affirmative obligation to take
action extending the site plan approval pursuant to section
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252.363(1)(a), Florida Statutes, or does the extension occur as
a matter of law without any municipal action or confirmation?
SUMMARY:
1. Section 252.363, Florida Statutes, contains no definition of
the term “development order” and no statutory definition of the
term “development order” includes a “site plan approval.” In
determining what may constitute a development order, Florida
courts have looked to local codes. However, the City of Tamarac
Code contains provisions which appear to be contradictory and
this office cannot interpret local codes or resolve inconsistencies
in local legislative language.
2. Section 252.363, Florida Statutes, contains no direction or
authority to a municipality to take affirmative action to extend
a permit or other authorization. Rather, the burden of seeking
an extension falls to the holder of the permit who must provide
written notification to the issuing authority of his or her
intention to exercise the tolling and extension of a qualifying
permit granted under the statute.
QUESTION 1.
Section 252.363, Florida Statutes, was created in section 494,
Chapter 2011-142, Laws of Florida, and tolls and extends the expiration
of development permits during and following a state of emergency
declared by the Governor. The act became effective July 1, 2011,1 and
provides, in part:
(1)(a) The declaration of a state of emergency by the Governor
tolls the period remaining to exercise the rights under a permit
or other authorization for the duration of the emergency
declaration. Further, the emergency declaration extends the
period remaining to exercise the rights under a permit or other
authorization for 6 months in addition to the tolled period. This
paragraph applies to the following:
1. The expiration of a development order issued by a local
government.
2.
The expiration of a building permit.
3. The expiration of a permit issued by the Department of
Environmental Protection or a water management district
pursuant to part IV of chapter 373.
4. The buildout date of a development of regional impact,
including any extension of a buildout date that was previously
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granted pursuant to s. 380.06(19)(c).
(b) Within 90 days after the termination of the emergency
declaration, the holder of the permit or other authorization
shall notify the issuing authority of the intent to exercise the
tolling and extension granted under paragraph (a). The notice
must be in writing and identify the specific permit or other
authorization qualifying for extension.
(c) If the permit or other authorization for a phased
construction project is extended, the commencement and
completion dates for any required mitigation are extended
such that the mitigation activities occur in the same timeframe
relative to the phase as originally permitted.
(d) This subsection does not apply to:
1. A permit or other authorization for a building, improvement,
or development located outside the geographic area for which
the declaration of a state of emergency applies.
2. A permit or other authorization under any programmatic or
regional general permit issued by the Army Corps of Engineers.
3. The holder of a permit or other authorization who is
determined by the authorizing agency to be in significant
noncompliance with the conditions of the permit or other
authorization through the issuance of a warning letter or
notice of violation, the initiation of formal enforcement, or an
equivalent action.
4. A permit or other authorization that is subject to a court
order specifying an expiration date or buildout date that would
be in conflict with the extensions granted in this section. (e.s.)
Section 252.363, Florida Statutes, requires the tolling and extension
of development orders following the declaration of a state of emergency
by the Governor.
While the term “development order” is not defined for purposes of
section 252.363, Florida Statutes, that phrase is defined elsewhere in
the statutes for land development and building construction purposes.
In the absence of specific direction by the Legislature, a definition of
the phrase “development order” contained in other land development
statutes may be helpful in delineating what may be considered a
development order within the scope of section 252.363(1)(a)1., Florida
Statutes.2
Part II, Chapter 163, Florida Statutes, is the “Community Planning
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Act,” the purpose of which is to
utilize and strengthen the existing role, processes, and powers
of local governments in the establishment and implementation
of comprehensive planning programs to guide and manage
future development consistent with the proper role of local
government.3
In this context, the act defines a “development order” as “any order
granting, denying, or granting with conditions an application for a
development permit.”4 A “[d]evelopment permit,” for purposes of the
“Community Planning Act”5 “includes any building permit, zoning
permit, subdivision approval, rezoning, certification, special exception,
variance, or any other official action of local government having the
effect of permitting the development of land.”6 Similarly, a “development
order” is defined in “The Florida Environmental Land and Water
Management Act of 1972,”7 as “any order granting, denying, or granting
with conditions an application for a development permit.”8 Section
380.031(4), Florida Statutes, defines a “[d]evelopment permit” as any
building permit, zoning permit, plat approval, or rezoning, certification,
variance, or other action having the effect of permitting development as
defined in this chapter.” None of these definitions specifically contains
“site plan approval” within its terms.
In a recent case, the Fourth District Court of Appeal looked to local code
definitions to determine whether a city’s actions in approving a revised
plat constituted a development order subject to challenge pursuant to
the statute governing standing to enforce local comprehensive plans.
In Graves v. City of Pompano Beach,9 a group of citizens brought a
declaratory judgment action seeking a declaration that the city’s revised
plat approval was inconsistent with the city’s comprehensive plan. The
City of Pompano Beach land development code adopted the statutory
definition for “development order,” but also extended the definition of
a “development permit” to include plat approval. The court relied on a
review and consideration of the development rights consequent to a plat
approval under the city’s land development code, to find that the plat
approval by the City of Pompano Beach was a “development order.”10
The City of Tamarac code defines a “site plan” as a technical
submission presented “prior to filing for any development permit[.]”11
However, the code also includes, within this same section, a definition
of the term “development permit” which specifically includes a “site
plan approval.”12 Thus, the City of Tamarac code contains inconsistent
provisions regarding whether a site plan approval may constitute a
development order under the provisions of the code. This office has no
authority to interpret local codes and cannot advise you which of these
definitions would control a determination of whether a site plan approval
under the City of Tamarac code would be a “development order”13 as that
term is used in section 252.363(1)(a)1., Florida Statutes. Nor can this
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office resolve mixed questions of law and fact and determine whether a
“site plan approval” under the City of Tamarac code would, in effect, be
an “official action . . . having the effect of permitting the development of
land”14 for purposes of the code.15
QUESTION 2.
You have also asked whether the city has an affirmative obligation
to take action extending development orders pursuant to section
252.363(1)(a), or whether the tolling and extension described in the
statute operate as a matter of law.
Section 252.363(1), Florida Statutes, provides that
(b) Within 90 days after the termination of the emergency
declaration, the holder of the permit or other authorization
shall notify the issuing authority of the intent to exercise the
tolling and extension granted under paragraph (a). The notice
must be in writing and identify the specific permit or other
authorization qualifying for extension.
(c) If the permit or other authorization for a phased
construction project is extended, the commencement and
completion dates for any required mitigation are extended
such that the mitigation activities occur in the same timeframe
relative to the phase as originally permitted.
Nothing in the statute imposes an obligation on the municipality
to take any action extending development orders, rather, it appears
that the Legislature intended to place that burden on the holder of the
permit who must provide written notification to the issuing authority
of his or her intent to exercise the tolling and extension of the statute.
As specifically provided in section 252.363(2), Florida Statutes, any
permit or other authorization that is the subject of an extension is
governed by the laws, administrative rules, and ordinances which were
in effect when the permit was issued.
Thus, it is my opinion that the City of Tamarac has no affirmative
obligation to take action extending the site plan approval pursuant to
section 252.363(1)(a), Florida Statutes, rather, the extension occurs as
a matter of law in response to a written notification of intent to exercise
the tolling and extension granted by the statute.
1
See s. 528, Ch. 2011-142, Laws of Fla.
See Krause v. Reno, 366 So. 2d 1244 (Fla. 3d DCA 1979) (lack of
definition for “agency” in Sunshine Law, s. 286.011, Fla. Stat., allows
2
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court to look to similar or analogous statutory provisions which give
effect to the same public policy underlying the Sunshine Law.); Ops. Att’y
Gen. Fla. 09-38 (2009) and 95-14 (1995) (definitions of terms in related
statutes may be reviewed to determine meaning).
3
Section 163.3161(2), Fla. Stat.
4
Section 163.3164(15), Fla. Stat.
5
See s. 163.3161, Fla. Stat., for the short title.
6
Section 163.3164(16), Fla. Stat.
7
Section 380.012, Fla. Stat., for the short title of the act.
8
Section 380.031(3), Fla. Stat.
9
Graves v. City of Pompano Beach, 74 So. 3d 595 (Fla. 4th DCA 2011).
And see Judge Gerber’s dissent in Graves v. City of Pompano Beach,
74 So. 3d at 599, in which he argues that the statutory definition of
“development permit” in s. 163.3164, Fla. Stat., which does not contain a
plat approval within its scope, would not permit the development of land
and would, thus, not constitute a “development order” within the scope of
the statute. Judge Gerber’s dissent argues that the statutory definition
controls over the city’s provision and that, by adding the city’s definition of
“development permit” to s. 163.3164’s definition, the court has broadened
the cause of action beyond that which the Legislature intended.
10
11
See s. 10-1, Art. I, Part I, Code of Ordinances, City of Tamarac.
12
Id.
See s. 16.01(3), Fla. Stat., prescribing the authority of the Attorney
General to issue opinions on questions of state law.
13
See the definition of “development permit” for purposes of Part II, Art.,
I, s. 10-1, Code of Ordinances, City of Tamarac. And see Graves v. City of
Pompano Beach, 74 So. 3d 595 (Fla. 4th DCA 2011).
14
Cf. Graves v. City of Pompano Beach, 74 So. 3d 595 (Fla. 4th DCA
2011) (in which the court, on rehearing, reviewed and considered the
development rights consequent to a plat approval under the city land
development code and found that the plant approval in that case did
constitute a development order under provisions of s. 163.3215(3), Fla.
Stat.).
15
AGO 12-14 – April 25, 2012
CODE ENFORCEMENT OFFICERS – COUNTIES – LAW
ENFORCEMENT OFFICERS – FIREARMS
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CODE ENFORCEMENT OFFICER NOT AUTHORIZED TO
CARRY FIREARMS WITHIN SCOPE OF DUTY AS CODE
ENFORCEMENT OFFICER; HOWEVER, LAW ENFORCEMENT
OFFICER DESIGNATED AS A CODE ENFORCEMENT OFFICER
MAY CARRY FIREARM IN CARRYING OUT LAW
ENFORCEMENT DUTIES
To: Ms. Alison P. Rogers, Escambia County Attorney
QUESTIONS:
1. May Escambia County authorize its code enforcement
officers acting pursuant to Chapter 162, Florida Statutes, to
openly carry firearms in the scope of their employment?
2. If so, is permission of the sheriff also required?
3. If a code enforcement officer has been trained and
registered as a law enforcement officer in the county’s “Original
Agency Identifier” account, may the county employ them with
all the entitlements of a law enforcement officer under Florida
law?
SUMMARY:
1. A code enforcement officer is not authorized to carry a
firearm within the scope of his or her employment. Should a
code enforcement officer also be certified as a law enforcement
officer, the carrying of a firearm would be attendant to the
individual’s status as a law enforcement officer, not as a code
enforcement officer.
2. In light of the answer to your first question, no further
comment is necessary.
3. A law enforcement officer employed as a code enforcement
officer is not acting as a law enforcement officer and would
not, therefore, be entitled to the benefits extended to law
enforcement officers under Florida Law.
In light of the interrelated nature of your questions, they will be
addressed together.
You state that Escambia County is a non-charter county. The
Escambia County Board of County Commissioners has a code
enforcement division which employs several officers who enforce the
county code and provide environmental code enforcement within the
unincorporated portion of the county. The county has adopted the
procedures in Chapter 162, Florida Statutes, for the enforcement of its
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code and employs a special magistrate to hear code enforcement cases.
The code enforcement officers do not carry firearms at this time, but due
to safety concerns, the board wishes to investigate the ability of such
officers to do so.1 According to your letter, the county uses the provisions
of Chapter 162, Florida Statutes, particularly sections 162.21-162.30 to
enforce its code provisions.
Chapter 162, Part I, Florida Statutes, authorizes cities and counties by
ordinance to create code enforcement boards for the enforcement of their
local codes.2 The provisions in that part, however, are a supplemental
means of obtaining compliance with local codes and “[n]othing contained
in ss. 162.01-162.12 shall prohibit a local governing body from enforcing
its codes by any other means.”3 The chapter contemplates a procedure
for the enforcement of local codes and ordinances through the imposition
of administrative fines and other noncriminal penalties.4
A “code inspector” is defined as “any authorized agent or employee of
the county or municipality whose duty it is to assure code compliance.”5
It is the duty of the code inspector to initiate enforcement proceedings
before the code enforcement board.6 The code inspector notifies a
violator of a violation and gives him a reasonable time to correct it.
If the violation continues, the inspector notifies the code enforcement
board and requests a hearing. The remainder of the enforcement
procedure is carried out by the code enforcement board.7
Chapter 162, Part II, Florida Statutes, sets forth further procedures
for the enforcement of county or municipal codes. Section 162.21(2),
Florida Statutes, provides:
A county or a municipality may designate certain of its
employees or agents as code enforcement officers.
The
training and qualifications of the employees or agents for such
designation shall be determined by the county or municipality.
Employees or agents who may be designated as code
enforcement officers may include, but are not limited to, code
inspectors, law enforcement officers, animal control officers, or
firesafety inspectors. Designation as a code enforcement officer
does not provide the code enforcement officer with the power of
arrest or subject the code enforcement officer to the provisions
of ss. 943.085-943.255. . . . (e.s.)
The inclusion of law enforcement officers in the list of employees or
agents who may be appointed as code enforcement officers indicates
that there is a distinction between the positions.8 Furthermore, the
statute makes it clear that designation as a code enforcement officer
does not provide such individual with the power of arrest or subject
him or her to the requirements of the Criminal Justice Standards and
Training Commission.9
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While this office does not interpret local codes and ordinances, I
would note that the Escambia County Code of Ordinances states that
a “[c]ode enforcement officer means any designated employee or agent
of the county whose duty it is to enforce codes through the issuance of
citations as provided in F.S. ch. 162, pt. II.”10
As you have indicated, certain code enforcement officers employed
by the county possess the qualifications for a law enforcement officer
pursuant to section 943.13, Florida Statutes; however, it would appear
that the job which they perform is enforcement of the county’s code, the
violation of which is a civil infraction subject to a civil penalty.11 This
office has recognized that a law enforcement officer is distinguishable
from a code enforcement officer since the law enforcement officer is
enforcing the criminal laws of this state.12
In Attorney General Opinion 97-12, this office was asked whether
a city’s designation of one of its police officers to also serve as a code
enforcement officer authorized the officer to carry firearms and make
arrests as a code enforcement officer. While municipalities do not have
home rule powers to grant non-law enforcement personnel the power
to make arrests, carry firearms, and conduct searches and seizures,13
the opinion recognized that code enforcement statutes do not prevent
a law enforcement officer designated as a code enforcement officer
from exercising his or her authority as a law enforcement officer. The
opinion noted that if the police officer, while carrying out duties of a
code enforcement officer, observes an offense for which an arrest may
be made, he or she may make such an arrest. However, since a code
enforcement officer has no authority to carry firearms or to make arrests,
the officer in making an arrest or carrying a firearm while carrying out
code enforcement duties “was doing so as a municipal police officer” and
not as a code enforcement officer.14
The courts of this state and this office have recognized that the
Legislature has preempted the field of firearms regulation.15 Any
ordinance or regulation attempting to regulate firearms is stated to be
null and void when enacted by jurisdictions other than the state or the
federal government.16 Thus, the lawful possession of a firearm by a
particular officer or employee in performing his or her duties must be
authorized by the Legislature.
In light of the foregoing discussion, it is clear that a law enforcement
officer employed as a code enforcement officer is not acting as a law
enforcement officer when he or she is carrying out the duties of the code
enforcement officer. Furthermore, section 162.21(2), Florida Statutes,
as noted above, clearly indicates that designation as a code enforcement
officer does not entitle the individual to the benefits extended to law
enforcement officers under Florida law. I would also note that the
Legislature has not included code enforcement officers in those positions
specified as “special risk class” under the Florida Retirement System.17
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Accordingly, it is my opinion that a code enforcement officer is not
authorized to carry a firearm within the scope of his or her employment
nor participate in benefits extended to law enforcement officers under
Florida law. However, a code enforcement officer who is a certified law
enforcement officer, carries a firearm attendant to his or her status as a
law enforcement officer, not as a code enforcement officer.
You indicate that previously some of the county’s code enforcement
officers were deputized by the sheriff and were certified law enforcement
officers; however, the sheriff revoked the deputy privileges, but the
officers continue to maintain their law enforcement training.
1
2
See s. 162.03, Fla. Stat.
3
Section 162.13, Fla. Stat.
4
See s. 162.02, Fla. Stat.
5
Section 162.04(2), Fla. Stat.
6
Section 162.06(1), Fla. Stat.
7
Sections 162.06-162.08, Fla. Stat.
See City of North Miami v. Miami Herald Publishing Co., 468 So. 2d
218, 220 (Fla. 1985) (in construing legislation, it is not assumed that the
Legislature acted pointlessly or enacted useless legislation).
8
9
Section 162.21(2), Fla. Stat.
10
Section 30-4, Escambia County Code of Ordinances.
See s. 30-64, Escambia County of Ordinances, Enforcement by citation,
providing:
11
The county code or any ordinance may be enforced using the
citation procedure. When the citation procedure is used to
enforce county codes and ordinances, the following will apply:
(1) A violation of the code or ordinance is deemed a civil
infraction.
(2) A maximum civil penalty not to exceed $500.00 may be
imposed.
(3) A civil penalty of less than the maximum civil penalty
established by the board of county commissioners may be
imposed if the person who has committed the civil infraction
does not contest the citation.
(4) A citation may be issued by a code enforcement officer who
has reasonable cause to believe that a person has committed
an act in violation of a code or ordinance.
(5) A citation may be contested in county court.
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(6) Such procedures and provisions as are necessary to enforce
county codes and ordinances. (e.s.)
12
See Op. Att’y Gen. Fla. 94-40 (1994) (absent legislative authorization
for code enforcement officers to possess law enforcement powers or
allowing a municipality to delegate such powers to a non-law enforcement
agent or employee, a municipality may not grant law enforcement powers
to its code enforcement officers). See also s. 943.10(1), Fla. Stat., defining
“[l]aw enforcement officer” as “any person who is elected, appointed,
or employed full time by any municipality or the state or any political
subdivision thereof; who is vested with the authority to bear arms and
make arrests; and whose primary responsibility is the prevention and
detection of crime or the enforcement of the penal, criminal, traffic, or
highway laws of the state.” (e.s.)
See Op. Att’y Gen. Fla. 81-38 (1981) (municipality has no home
rule power to grant members of its fire department or its fire officials
authority to serve summonses or criminal process, make arrests, carry
firearms, and make searches and seizures, or make affidavits necessary
to authorize arrests and searches and seizures, as a sheriff or his deputies
may do, in connection with the enforcement of its fire prevention code or
the enforcement of Ch. 633, Fla. Stat.). And see Op. Att’y Gen. Fla. 82-12
(1982) (power to create appointive office does not include power to vest
officer with powers of a law enforcement officer).
13
See also Op. Att’y Gen. Fla. 94-40 (1994) (absent legislative
authorization for code enforcement officers to possess law enforcement
powers or allowing a municipality to delegate such powers to a nonlaw enforcement agent or employee, a municipality may not grant law
enforcement powers to its code enforcement officers).
14
See Penelas v. Arms Technology, Inc., 778 So. 2d 1042 (Fla. 3d DCA
2011), review denied, 799 So. 2d 218 (Fla. 2001); National Rifle Association
of America, Inc. v. City of South Miami, 812 So. 2d 504 (Fla. 3d DCA
2002); Ops. Att’y Gen. Fla. 11-20 (2011), 11-17 (2011), and 08-34 (2008).
15
16
Section 790.33(2)(a), Fla. Stat.
See s. 121.0515(3), Fla. Stat., designating law enforcement officers,
firefighters, correctional officers, emergency medical technicians or
paramedics, community-based correctional probation officers, select
positions which require spending at least 75 percent of time performing
duties involving contact with patients or inmates in a correctional or
forensic facility or institution, youth custody officers, specified employees
of the Department of Law Enforcement in the crime laboratory or the
Division of State Fire Marshal in the forensic laboratory, and specified
employees (and direct supervisors) of a local government law enforcement
agency or medical examiner’s office spending at least 65 percent of time
performing duties involving the collection, examination, preservation,
documentation, preparation, or analysis of human tissues or fluids or
physical evidence having potential biological, chemical, or radiological
17
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hazard or contamination, or using chemicals, processes, or materials that
may have carcinogenic or health-damaging properties in the analysis of
such evidence.
However, subsection (4) of the statute provides a procedure for
designating a position as “special risk” by the Florida Department of
Management Services, when any member of the Florida Retirement
System employed by a county, municipality, or special district feels that
his or her position meets the criteria set forth for membership in the
Special Risk Class; the individual requests the employer to submit an
application to the department requesting “special risk” designation. If
the employer agrees that the member meets the requirements for Special
Risk Class membership, the employer must submit an application to the
department on behalf of the employee containing a certification that the
member meets the criteria for Special Risk Class membership set forth
in s. 121.0515, Fla. Stat., and such other supporting documentation as
may be required by administrative rule. The department shall, within
90 days, designate or refuse to designate the member as a special risk
member. If the employer declines to submit the member’s application to
the department or if the department does not designate the member as
a special risk member, the member or the employer may appeal to the
State Retirement Commission, as provided in s. 121.23, Fla. Stat., for
designation as a special risk member.
AGO 12-15 – April 25, 2012
PROPERTY APPRAISER – EDUCATIONAL PROPERTY –
PERSONS
WHETHER TAX EXEMPTION FOR EDUCATIONAL PROPERTY IS
AVAILABLE WHEN SCHOOL OWNED BY DIFFERENT PERSON
THAN REAL PROPERTY
To: The Honorable Kenneth M. Wilkinson, Lee County Property
Appraiser
QUESTION:
Is land deemed “owned by an educational institution” for
purposes of an educational exemption from taxation under
section 196.198, Florida Statutes, where the school is owned by
a corporate entity and the land owned by a different corporate
entity and the same two people are the sole members in both
entities?
SUMMARY:
An educational exemption from taxation is not available
pursuant to section 196.198, Florida Statutes, where the
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educational institution is owned by a corporate entity and the
real property is owned by a different corporate entity although
the same two people are the sole members of both entities.
According to information submitted with your request, School, LLC,
operates a private school on real property leased from Land, LLC. Mr.
and Mrs. Jones are the sole members of School, LLC, and Land, LLC.
The property is used exclusively for educational purposes. Land, LLC,
has applied for an educational exemption from ad valorem taxation. The
Lee County Property Appraiser does not believe Land, LLC, qualifies for
the exemption because the school is not owned by the “identical persons
who own the property” since Land, LLC, owns the property, but owns no
part of the school. As discussed more fully herein, this office concurs in
Mr. Wilkinson’s determination.
All property in this state is subject to taxation unless it is expressly
exempted.1 The specification of permissible exemptions to ad valorem
taxation in the Florida Constitution excludes any other exemptions.2
Section 196.001, Florida Statutes, implements these constitutional
directives. The statute is entitled “Property subject to taxation,” and
states:
Unless expressly exempted from taxation, the following
property shall be subject to taxation in the manner provided
by law:
(1) All real and personal property in this state and all personal
property belonging to persons residing in this state; and
(2) All leasehold interests in property of the United States,
of the state, or any political subdivision, municipality, agency,
authority, or other public body corporate of the state.
In claiming an exemption from taxation, the burden is on the claimant
to show clearly any entitlement to tax exemption.3 The rule is that
all property is subject to taxation unless expressly exempted and such
exemptions are strictly construed against the party claiming them.4
Section 196.198, Florida Statutes, provides the exemption from
taxation for educational property. In relevant part, the statute provides:
Educational institutions within this state and their property
used by them or by any other exempt entity or educational
institution exclusively for educational purposes shall be exempt
from taxation . . . . Property used exclusively for educational
purposes shall be deemed owned by an educational institution
if the entity owning 100 percent of the educational institution
is owned by the identical persons who own the property. . . .
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You ask whether this statutory language would allow the granting
of a property tax exemption to the private school property operated by
School, LLC, and owned by Land, LLC. While it is clear from your
letter that the same two people are the sole members of both School,
LLC, and Land, LLC, the statute requires that the entity owning 100
percent of the educational institution, School, LLC, must be owned by
the identical persons who own the property, that is Land, LLC.
“Persons” in this context may mean not only individuals but
corporations and other business entities. The term “persons” is not
defined for use in Chapter 196, Florida Statutes. However, section
1.01, Florida Statutes, provides a general definition of the term
“person,” as it may be used throughout the statutes (in the absence of
a more specific definition), which “includes individuals, children, firms,
associations, joint adventures, partnerships, estates, trusts, business
trusts, syndicates, fiduciaries, corporations, and all other groups or
combinations.”5 Thus, section 196.198, Florida Statutes, requires the
identical business entity to own the educational institution and the
property upon which it is located.
In the fact situation you have described, Land, LLC, and School,
LLC, are not the identical “person” but are individual, independently
incorporated entities. While the same two people are the sole members
of both limited liability corporations, the corporations or “persons”
are separate and distinct and not “the identical persons” as required
by section 196.198, Florida Statutes. Exemptions to taxation statutes
are strictly construed against the party claiming them, that is, Mr. and
Mrs. Jones, and I cannot conclude, based on the information you have
presented, that an educational exemption may be granted under these
circumstances.
Thus, it is my opinion that an educational exemption from taxation
is not available pursuant to section 196.198, Florida Statutes, where
the educational institution is owned by a corporate entity and the real
property is owned by a different corporate entity although the same two
people are the sole members of both entities.
See Art. VII, ss. 3 and 4, Fla. Const.; s. 196.001, Fla. Stat.; Colding v.
Herzog, 467 So. 2d 980 (Fla. 1985).
1
See Art. VII, s. 3, Fla. Const.; Sebring Airport Authority v. McIntyre,
718 So. 2d 296 (Fla. 2d DCA 1998), affirmed, 783 So. 2d 238 (Fla. 2001).
2
Volusia County v. Daytona Beach Racing and Recreational Facilities
District, 341 So. 2d 498 at 501 (Fla. 1976), appeal dismissed, 98 S.Ct. 32,
434 U.S. 804, 54 L. Ed. 2d 61 (1977).
3
See State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So. 2d 381
(Fla. 1958); Volusia County v. Daytona Beach Racing and Recreational
4
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12-16
Facilities District, 341 So. 2d 498 (1976), appeal dismissed, 98 S.Ct. 32,
434 U.S. 804, 54 L. Ed. 2d 61 (1977); Williams v. Jones, 326 So. 2d 425
(1975), appeal dismissed, 97 S.Ct 34, 429 U.S. 803, 50 L. Ed. 2d 63 (1976).
And see ss. 198.01(3) and 211.01(15), Fla. Stat., both of which define
“person” for purposes of taxation statutes and include business entities
within those definitions.
5
AGO 12-16 – April 25, 2012
PROPERTY APPRAISER – TAXATION – EXEMPTIONS –
VETERANS
DOCUMENTATION REQUIRED FOR VETERAN’S ELIGIBILITY
FOR TOTAL EXEMPTION
To: Ms. Ana C. Torres, Attorney for the Suwannee County Property
Appraiser
QUESTIONS:
1. What documentation certifies that a veteran is “totally and
permanently” disabled due to a service-connected disability,
which is necessary to establish prima facie evidence of eligibility
for the exemption under section 196.081(1)?
2. Because the Department of Veterans’ Affairs only issues
letter VAFL 27-333 to certify that a veteran is “totally and
permanently” disabled due to a service-connected disability
and eligible for the exemption under section 196.081(1), does a
property appraiser have any authority to rely on documentation
other than letter VAFL 27-333?1
3. If the answer to question 2 is in the affirmative, what
documentation, other than letter VAFL 27-333, is sufficient to
certify that a veteran is “totally and permanently” disabled due
to a service-connected disability and eligible for the exemption
under section 196.081(1)?
SUMMARY:
The VAFL 27-333 letter issued by United States Department
of Veterans Affairs certifying that a veteran is “totally and
permanently” disabled due to a service-connected disability is
not the only documentation that may be accepted by a property
appraiser in determining the eligibility of a veteran for the
exemption afforded by section 196.081(1), Florida Statutes.
While this office cannot list what documents may or may not be
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acceptable to establish eligibility, the statute requires that there
must be a letter from the United States Government or from the
Department of Veterans Affairs (or its predecessor) certifying
that the veteran is totally and permanently disabled from a
service-connected disability. Whether a letter provided by the
United States Government or the United States Department
of Veterans Affairs in any given instance is sufficient to satisfy
such a requirement is a determination that must be made by the
property appraiser on a case-by-case basis.
As your questions are interrelated, they will be answered together.
Section 196.081(1), Florida Statutes, provides:
Any real estate that is owned and used as a homestead by a
veteran who was honorably discharged with a service-connected
total and permanent disability and for whom a letter from the
United States Government or United States Department of
Veterans Affairs or its predecessor has been issued certifying
that the veteran is totally and permanently disabled is exempt
from taxation, if the veteran is a permanent resident of this
state on January 1 of the tax year for which exemption is being
claimed or was a permanent resident of this state on January 1
of the year the veteran died.2 (e.s.)
The process for applying for an exemption under this section is
described in section 196.011, Florida Statutes.3 During the 2012 regular
session, legislation was passed that would permit an applicant for the
exemption under this section to apply for the exemption before receiving
the necessary documentation from the United States Government or
the United States Department of Veterans Affairs or its predecessor.4
To implement the provisions of section 196.081, Florida Statutes,
the Department of Revenue has adopted Rule 12D-7.004, Florida
Administrative Code, which provides in pertinent part:
The veteran, his or her spouse, or surviving spouse must have
a letter from the United States Government or from the United
States Department of Veterans Affairs or its predecessor
certifying that the veteran has a service-connected total and
permanent disability or that the death of the veteran resulted
from service-connected causes while on active duty.5
You note that the Department of Revenue has stated that an
identification card issued by the State of Florida Department of
Veterans’ Affairs could not be used as proof of eligibility for the
disability exemption afforded by section 196.081, Florida Statutes.6
The letter notes the language of section 196.081 referring to a letter
from the United States Government or United States Department of
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Veterans Affairs or its predecessor as well as the language of section
295.17, Florida Statutes, which provides that the state card “may be
used by the veteran as proof of eligibility for any benefit provided by
state law for 100-percent, service-connected permanently and totally
disabled veterans except those benefits provided by ss. 196.081, 196.091,
and 196.24.”7 (e.s.)
You refer to VAFL 27-333, which you state is the only letter issued
by the Department of Veterans’ Affairs to certify that a veteran is
“totally and permanently” disabled with a service-connected disability.8
You, therefore, question whether a property appraiser may accept any
documentation other than VAFL 27-333 in granting an exemption for a
total and permanent service-connected disability.
As noted above, both the statute and the rule refer to a letter certifying
the veteran’s service-connected total and permanent disability from
the “the United States Government or United States Department
of Veterans Affairs or its predecessor.” (e.s.) Had the Legislature
intended to require that only such certification letters be issued by
the U.S. Department of Veterans Affairs, it could have easily done so,
but it did not. The word “or” is generally construed in the disjunctive
when used in a statute or rule and normally indicates that alternatives
were intended.9 Moreover, statutory language is not to be assumed to
be surplusage; rather a statute is to be construed to give meaning to
all words and phrases contained within statute.10 To read the phrase
“United States Government” as referring only to the United States
Department of Veterans Affairs would render the phrase meaningless.
The statute thus recognizes that a letter certifying a veteran’s serviceconnected total and permanent disability may come from the United
States Government as well as from the United States Department of
Veterans Affairs or its predecessor.
Accordingly, I am of the opinion that the VAFL 27-333 letter issued
by the United States Department of Veterans Affairs to certify that a
veteran is “totally and permanently” disabled due to a service-connected
disability is not the only documentation that may be accepted by a
property appraiser in determining the eligibility of a veteran for the
exemption afforded by section 196.081(1), Florida Statutes.
Your first and third questions concern the documentation necessary
to establish evidence of eligibility for the exemption under section
196.081(1), Florida Statutes. The statute requires a letter from the
United States Government or from the United States Department
of Veterans Affairs (or its predecessor) certifying that the veteran is
totally and permanently disabled from a service-connected disability.11
Pursuant to section 196.081(2), Florida Statutes, the production by
a veteran or the spouse or surviving spouse of a letter of total and
permanent disability from the United States Government or United
States Department of Veterans Affairs or its predecessor before the
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property appraiser is prima facie evidence of the fact that the veteran
or the surviving spouse is entitled to the exemption. This office,
however, cannot list what documents may or may not be acceptable to
establish eligibility. Moreover, whether a letter from the United States
Government or the United States Department of Veterans Affairs (or
its predecessor) presented to the property appraiser contains sufficient
information to constitute a certification of “total and permanent
disability” is a determination that must be made by the property
appraiser on a case-by-case basis.
While your letter states that the Florida Department of Veterans’
Affairs issues VAFL 27-333, the letter is issued by the U.S. Department
of Veterans Affairs, not the Florida Department of Veterans’ Affairs.
VAFL 27-333 is issued by the federal agency for use in Florida.
1
See Art. VII, s. 3(b), Fla. Const., which provides in pertinent part that
“[t]here shall be exempt from taxation . . . to every widow or widower
or person who is blind or totally and permanently disabled, property to
the value fixed by general law not less than five hundred dollars.” This
provision contemplates that legislative implementation be done by general
law. Section 196.081, Fla. Stat., constitutes such an implementation of
this constitutional provision. See Op. Att’y Gen. Fla. 76-228 (1976).
2
3
See s. 196.011, Fla. Stat., which provides:
Every person or organization who, on January 1, has the legal
title to real or personal property, except inventory, which is
entitled by law to exemption from taxation as a result of its
ownership and use shall, on or before March 1 of each year,
file an application for exemption with the county property
appraiser, listing and describing the property for which
exemption is claimed and certifying its ownership and use. The
Department of Revenue shall prescribe the forms upon which
the application is made. Failure to make application, when
required, on or before March 1 of any year shall constitute
a waiver of the exemption privilege for that year, except as
provided in subsection (7) or subsection (8).
The provisions of s. 196.011, Fla. Stat., are clearly applicable to
veterans claiming an exemption under s. 196.081, Fla. Stat. See, e.g., s.
196.011(1)(b), Fla. Stat.
See s. 19, HB 7097 (2012 regular session) which provides that upon
receipt of the documentation, the exemption shall be granted as of
the date of the original application, and the excess taxes paid shall be
refunded. Any refund of excess taxes paid shall be limited to those paid
during the 4-year period of limitation set forth in s. 197.182(1)(e), Fla.
Stat. The act was ordered engrossed, then enrolled on March 9, 2012,
Fla. House Journal at 1651.
4
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5
12-17
Rule 12D-7.004(2), Fla. Admin. C.
Florida Dept. of Revenue Property Tax Oversight Advisement Letter,
OPN 93-0049, dated October 19, 1993.
6
7
And see Rule 55A-1.001(3), Fla. Admin. C., providing in part:
The following benefits require additional proof of eligibility
and are not included in the benefits for which the identification
card provides proof of eligibility:
(a) Real estate that is used and owned as a homestead by an
eligible veteran that is exempt from taxation pursuant to the
provisions of Section 196.081 or 196.091, Florida Statutes.
(e.s.)
As noted supra, the VAFL 27-333 letter is issued by the U.S.
Department of Veterans Affairs for use in Florida.
8
See, e.g., Sparkman v. McClure, 498 So. 2d 892 (Fla. 1986); Telophase
Society of Florida, Inc. v. State Board of Funeral Directors and Embalmers,
334 So. 2d 563 (Fla. 1976); Fort Walton Beach Medical Center, Inc. v.
Dingler, 697 So. 2d 575 (Fla. 1st DCA 1997); Linkous v. Department of
Professional Regulation, 417 So. 2d 802 (Fla. 5th DCA 1982); Ops. Att’y
Gen. Fla. 00-06 (2000) (use of the term “or” in a statute is generally
construed to be disjunctive, indicating that alternatives were intended).
9
See, e.g., Terrinoni v. Westward Ho!, 418 So. 2d 1143 (Fla. 1st DCA
1982); Unruh v. State, 669 So. 2d 242 (Fla. 1996) (as a fundamental rule
of statutory interpretation, courts should avoid readings that would
render part of a statute meaningless); Ops. Att’y Gen. Fla. 95-27 (1995)
and 91-11 (1991) (statute must be construed so as to give meaning to all
words and phrases contained within that statute).
10
11
This office has been advised by the Florida Department of Veterans’
Affairs, Division of Benefits and Assistance, that, for example, in some
cases a branch of the U.S. armed forces has provided such a certification
to a veteran.
AGO 12-17 – May 17, 2012
DUAL OFFICE-HOLDING – SPECIAL MAGISTRATES –
VALUE ADJUSTMENT BOARDS – HEARING OFFICERS –
MUNICIPALITIES
VALUE ADJUSTMENT BOARD SPECIAL MAGISTRATE
APPOINTED FOR CALENDAR YEAR MAY NOT HOLD OTHER
OFFICE
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To: Ms. Rinky S. Parwani, Legal Counsel, Hillsborough County Value
Adjustment Board
QUESTION:
May a special magistrate appointed for a calendar year for
the county value adjustment board serve as a city’s hearing
officer without violating the constitutional dual office-holding
prohibition in section 5(a), Article II, Florida Constitution, if
the hearings for each governmental agency are conducted in
different months of the year and not simultaneously?
SUMMARY:
A special magistrate appointed for a calendar year for
the county value adjustment board may not also serve as a
city’s hearing officer, irrespective of whether the officer is
simultaneously conducting hearings during the term of office,
without violating the dual office-holding prohibition in section
5(a), Article II, Florida Constitution.
You pose the situation where a value adjustment board special
magistrate who is appointed by Hillsborough County for a calendar year
would be appointed as a hearing officer for a city in a different county
and the hearings for each governmental entity would be conducted in
different months and, therefore, not simultaneously. In this scenario,
the special magistrate for the value adjustment board would have
completed all hearings for petitions for the contract year, then begin
hearings for the city.1
Initially, I would note that section 194.035(1), Florida Statutes, states
that special magistrates may not be elected or appointed officials or
employees of the county and further precludes employees and elected or
appointed officials of a taxing jurisdiction or of the state from serving as
special magistrates. This contemplates a broader prohibition than mere
dual office-holding in that employees of a county, taxing jurisdiction, or
the state may not serve as special magistrates for the value adjustment
board. Your question, however, appears to pose a more particular
distinction for a special magistrate who has completed the hearings for
the value adjustment board for the year, but still holds the position of
special magistrate.
Section 5(a), Article II, Florida Constitution, provides:
No person shall hold at the same time more than one office
under the government of the state and the counties and
municipalities therein, except that a notary public or military
officer may hold another office, and any officer may be a member
of a constitution revision commission, taxation and budget
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reform commission, constitutional convention, or statutory
body having only advisory powers.
This constitutional provision prohibits a person from simultaneously
holding more than one “office” under the government of the state and
the counties and municipalities. The terms “office” or “officer” are
not defined and no distinction is made between part-time or full-time
officers, nor is any exception made therefor.2 The Florida Supreme
Court in State ex rel. Holloway v. Sheats,3 stated that the term “office,”
“implies a delegation of a portion of the sovereign power to, and the
possession of it by, the person filling the office[.]”4
In the instant situation, the authority to conduct hearings as a
special magistrate for the value adjustment board is inherent to the
position and is held by the individual regardless of whether the special
magistrate is in the process of conducting a hearing. Such authority
does not cease to exist when the special magistrate concludes a hearing
or conducts hearings on a part-time basis, but rather is attendant to
holding the office and remains at the officer’s disposal for the term of
the office.5 The powers and duties of a special master, therefore, are
not confined by the time period during which he or she is conducting
hearings. Rather, a special magistrate is an officer at all times during
his or her term of office.6 The same would hold true for an individual
appointed as a municipal hearing officer.
While Florida courts have recognized a limited exception to the
dual office-holding prohibition for law enforcement officers who are
temporarily assigned to perform law enforcement duties without
remuneration for another law enforcement agency,7 the exception
deals with the performance of additional law enforcement functions
and duties in a police capacity and not the exercise of governmental
power or performance of official duties for another governmental board
or entity exercising and performing quasi-judicial powers and duties.
Moreover, the exemption only applies when the officer performs the
additional duties without remuneration.
Accordingly, it is my opinion that a value adjustment board special
magistrate who has been appointed for a calendar year may not also
serve as a hearing officer for a municipality in another county, despite
the fact that the individual in his or her capacity in each office would
not be conducting hearings for both offices during the same time period.
This office has determined that a special magistrate for a value
adjustment board is an officer for purposes of the dual office-holding
prohibition. See Op. Att’y Gen. Fla. 96-91 (1996) (special master
appointed pursuant to s. 194.035, Fla. Stat., is an officer). It is assumed
for purposes of this discussion that the hearing officer for the city is an
officer subject to the prohibition. Cf. Inf. Op. to Ms. Susan H. Bingham,
1
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dated April 12, 1999, in which it was advised that simultaneous service
as a traffic court hearing officer and a municipal administrative hearing
master would violate the dual office-holding prohibition.
Compare s. 5(a), Art. II, supra, excepting from its terms notaries
public, military officers, members of a constitutional revision commission,
constitutional convention, or statutory body having only advisory powers.
2
3
83 So. 508 (Fla. 1919).
4
Id. at 509.
Cf. Ops. Att’y Gen. Fla. 77-63 (1977) (non-salaried, part-time, certified
auxiliary or reserve police officer is an “officer” within the purview of
the constitutional dual office-holding prohibition); 86-105 (1986) (citizen
trained and certified as an auxiliary law enforcement officer pursuant to
Ch. 943, Fla. Stat., authorized to carry a firearm and assist regular police
officers, is an “officer” for purposes of dual office-holding).
5
6
A contract or agreement for the hearing officer for the city has not been
provided, but it is assumed for purposes of this opinion that the hearing
officer is appointed for a term and, as discussed in the text regarding a
special magistrate, is exercising his or her duties as an officer and would
possess such authority throughout the term of the office.
Compare Vinales v. State, 394 So. 2d 993 (Fla. 1981) (section 5[a],
Art. II, did not apply to appointment of municipal police officers as
state attorney investigators, since appointment is temporary and with
no additional remuneration), and Rampil v. State, 422 So. 2d 867 (Fla.
2d DCA 1982) (following Vinales exception, concluding that city police
officer, in conducting a wiretap, could act in capacity as deputy sheriff,
since officer received no remuneration for such duties). See also Op. Att’y
Gen. Fla. 12-10 (2012) (special officer for a carrier under Ch. 354, Fla.
Stat., may serve simultaneously as an unpaid reserve deputy sheriff
without violating the Florida constitutional prohibition against dual
office-holding in s. 5[a], Art. II, Fla. Const.).
7
AGO 12-18 – May 17, 2012
VALUE ADJUSTMENT BOARDS – ELECTIONS – TERMS OF
OFFICE – MUNICIPALITIES – CITY COMMISSIONERS –
TAXING AUTHORITY
REQUIREMENT THAT VALUE ADJUSTMENT BOARD MEMBER
NOT SERVE AS MEMBER OF ANY TAXING AUTHORITY
To: Mr. Monroe D. Kiar, Attorney for the Broward County Value
Adjustment Board
QUESTIONS:
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1. Is a citizen board member of the Broward County Value
Adjustment Board required to resign his position on the Value
Adjustment Board prior to taking elected office under section
194.015, Florida Statutes?
2. If the response to Question One is in the affirmative, may
that resignation take place anytime up to the moment that the
citizen board member is sworn into local elected office?
SUMMARY:
1. A citizen member of a county value adjustment board
is prohibited by section 194.015, Florida Statutes, from
simultaneously serving on the value adjustment board and being
a member or an employee of a municipality.
2. As required by section 194.015, Florida Statutes, a member
of the value adjustment board must resign his or her office
on the board on or before becoming a “member” of the city
commission, that is, no later than commencement of his or her
term of office as a city commissioner.
As special legal counsel for the Broward County Value Adjustment
Board you have advised this office that a citizen member of the board
is planning to file as a candidate for city commissioner of the City of
Weston. Based on the language of section 194.015, Florida Statutes,
you have questions relating to this member’s potential candidacy and its
effects on his or her service on the Broward County Value Adjustment
Board.1
QUESTION 1.
Section 194.015, Florida Statutes, creates a value adjustment board
for each county and provides for the membership of the board. Two
citizen members shall be appointed to each value adjustment board:
[O]ne of whom shall be appointed by the governing body of the
county and must own homestead property within the county
and one of whom must be appointed by the school board and
must own a business occupying commercial space located
within the school district.2
With regard to citizen members of the board, the statute provides that
“[a] citizen member may not be a member or an employee of any taxing
authority, and may not be a person who represents property owners in
any administrative or judicial review of property taxes.”
The statute does not specifically delineate what may constitute
“any taxing authority” although this particular statute uses the term
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in several places.3 Neither this office nor the courts are authorized to
amplify legislative requirements with their own notions of what might
be appropriate.4 If additional requirements are to be imposed, they
should be inserted by the Legislature.5
In the absence of statutory definition, words of common usage are
construed in their plain and ordinary sense and, if necessary, the
plain and ordinary meaning of a word can be ascertained by reference
to a dictionary.6 Black’s Law Dictionary defines the term “authority”
as “[a] governmental agency or corporation that administers a public
enterprise.”7 A “tax” is defined as “a monetary charge imposed by the
government on persons, entities, transactions, or property to yield public
revenue.”8 Similarly, Webster’s New Universal Unabridged Dictionary
defines a “tax” as “a sum of money demanded by a government for
its support or for special facilities or services, levied upon incomes,
property, sales, etc.”9 An “authority” is defined as “a person or body of
persons in whom authority is vested, as a governmental agency.”10
Since section 194.015, Florida Statutes, does not define the phrase
“taxing authority,” it may also be helpful to consider a definition of
“taxing authority” provided elsewhere in the Florida Statutes. Section
163.340, Florida Statutes, relating to community redevelopment defines
the term “[t]axing authority” to mean “a public body that levies or is
authorized to levy an ad valorem tax on real property located in a
community redevelopment area.”11
Applying general rules of statutory construction and using other
statutory definitions for support, it would appear that the term “taxing
authority” as it is used in section 194.015, Florida Statutes, refers to
a public body that levies or is authorized to levy taxes. It is without
question that a municipality is a “taxing authority” within the scope of
this general definition for purposes of the Florida Constitution and the
Florida Statutes.12
Thus, it is my opinion that a citizen member of a county value
adjustment board is prohibited by section 194.015, Florida Statutes,
from serving on the value adjustment board and also being a member or
an employee of a municipality.13
QUESTION 2.
My response to your first question was in the affirmative and you
have also asked when the citizen member must resign his or her value
adjustment board office after being elected as an officer of the city in
order to satisfy the terms of section 194.015, Florida Statutes.14 Because
the statute states that “[a] citizen member may not be a member or
an employee of any taxing authority,” it would appear that resignation
must occur no later than commencement of the term of office of the
elected official.
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Article VI, section 6 of the Florida Constitution provides that
municipal elections shall be as provided by law. Section 166.021(4),
Florida Statutes, requires referendum approval for matters prescribed
by municipal charter relating to terms of office for municipal officers.
The City of Weston adopted its charter by referendum on November 7,
2006.15
Article V of the City of Weston Charter provides that terms of office
for the Mayor and Commissioners of the city “shall commence at the
first regularly scheduled City Commission Meeting after receipt of
certification of the election (the “Certification”) or 20 days after the
Certification is received, whichever is earlier.”16 A term of office is
generally defined as “[t]he period during which an elected officer or
appointee may hold office, perform its functions, and enjoy its privileges
and emoluments”17 and it is commencement of the term of office which
determines when a commissioner becomes an active “member” of the
commission.18
Thus, it is my opinion that, as required by section 194.015, Florida
Statutes, a member of the value adjustment board must resign his or
her office on the board on or before becoming a “member” of the city
commission, that is, no later than commencement of his or her term as
a city commissioner.
1
Your questions have been rephrased to enable this office to comment.
You have been advised that questions relating to Florida’s Resign to Run
Law must be addressed by the Division of Elections and that questions
on the interpretation of administrative rules must be addressed by the
agency promulgating those particular rules, in this case, the Department
of Revenue.
And see Op. Att’y Gen. Fla. 08-56 (2008), considering the qualification
that a citizen member “own a business occupying commercial space
located within the school district.”
2
The statute also prohibits private counsel for the board from
representing “any taxing authority[.]”
3
4
Johnson v. Taggart, 92 So. 2d 606 (Fla. 1957).
Id. at 608. And see Sarasota Herald Tribune Company v. Sarasota
County, 632 So. 2d 606, 607 (Fla. 2d DCA 1993).
5
Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000); Rollins v. Pizzarelli, 761
So. 2d 294 (Fla. 2000); Green v. State, 604 So. 2d 471 (Fla. 1992).
6
7
Black’s Law Dictionary (8th ed. 1999) at 143.
8
Id. at 1496.
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9
Webster’s New Universal Unabridged Dictionary (2003) at 1947.
10
Id. at 139.
11
Section 163.340(24), Fla. Stat.
See Art. VII, s. 9, Fla. Const. “Local Taxes,” which provides the authority
to levy ad valorem taxes; and see, e.g., s. 193.0235, Fla. Stat. (ad valorem
taxes and non ad valorem assessments against subdivision property); s.
200.065, Fla. Stat. (method for fixing millage by taxing authorities).
12
I would also note that the dual office-holding prohibition of the Florida
Constitution would appear to preclude a value adjustment board member
from simultaneously serving as an officer of the state, counties, or
municipalities. See Ops. Att’y Gen. Fla. 06-13 (2006), 85-21 (1985), and
84-25 (1984).
13
As noted supra, questions involving the applicability of the Resign to
Run Law, section 99.012, Fla. Stat., should be directed to the Division of
Elections and no comment is expressed herein regarding the applicability
of that statute.
14
See Charter of the City of Weston, as adopted by referendum on
November 7, 2000, and amended by referenda on November 5, 2002,
March 11, 2003, November 2, 2004, and November 7, 2006.
15
16
Id. at s. 5.01(g).
17
See Black’s Law Dictionary (8th ed. 1999) at 1512.
18
And see s. 2.03(a), Charter of the City of Weston, which requires that
“[e]ach Commissioner and the Mayor shall remain in office until his or
her successor is elected and assumes the duties of the position.”
AGO 12-19 – May 30, 2012
RE: MUNICIPALITIES – INFRASTRUCTURE – TAXATION –
BEACHES – BEACH EROSION – SURTAX
WHETHER CITY MAY USE LOCAL GOVERNMENT
INFRASTRUCTURE SURTAX TO FUND BEACH EROSION
CONTROL PROJECTS AND STUDIES
To: Mr. D. Andrew Smith, III, City Attorney, City of Flagler Beach
QUESTIONS:
1. Is the City of Flagler Beach authorized by section
212.055(2), Florida Statutes, to use funds collected pursuant to
that statute to fund studies and construction of public capital
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12-19
projects relating to beach erosion control?
2. If the City of Flagler Beach is authorized to make such
expenditures, is the Flagler County referendum ballot language
sufficiently broad to permit the same expenditures?
SUMMARY:
1. To the extent that the City of Flagler Beach proposes to
construct beach control mechanisms that would satisfy the
terms of section 212.055(2), Florida Statutes, the statute would
authorize the city to use surtax funds to fund the construction
of beach erosion control mechanisms and to fund the design and
planning costs associated with the project.
2. Expenditures of the Flagler County Ten (10) Year Sales
Surtax to Fund Infrastructure Improvements are limited to
those public projects and types of projects which involve roads,
streets, pedestrian safety projects, motor vehicles, public
buildings and associated capital facilities. Expenditures for
design and planning studies which are undertaken in association
with an authorized project are appropriate expenditures of
surtax funds.
Initially, I would note that this office has concluded in a number of
previous opinions that section 212.055(2), Florida Statutes, requires
that a general description of the projects to be funded by a local
government infrastructure surtax must be placed on the ballot to
approve the imposition of the surtax. Revenues from the surtax must be
expended on projects that fall within the general description contained
on the ballot.1
According to your letter, Flagler County conducted a referendum in
which county electors authorized the county to adopt the “Flagler County
Ten (10) Year Sales Surtax to Fund Infrastructure Improvements” (the
“Flagler Surtax”). The ballot language read as follows:
To provide the funding for necessary public capital projects,
Flagler County and its cities require additional revenue. The
proposed revenue source is a ten (10) year 0.5 cent (0.5¢) per
dollar sales surtax on taxable transactions occurring within
Flagler County. These revenues would be used for funding
public projects and improvements such as the renovation,
reconstruction and construction of roads, streets, pedestrian
safety projects, motor vehicles, public buildings and associated
capital facilities throughout Flagler County.
Flagler County subsequently adopted an ordinance implementing the
surtax. The City of Flagler Beach is located within Flagler County and
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currently receives funds collected via the Flagler Surtax.
You have not provided this office with specifics of the “beach erosion
control mechanisms” proposed to be constructed by the city and my
comments will, therefore, be general in nature and based on your
assertion that these are “public capital projects” and “fixed assets
consisting of fixtures and fixed equipment.”
QUESTION 1.
Florida follows the general rule that taxes may be levied, assessed,
and collected only as prescribed by statute.2 Although a municipality
is granted broad home rule powers by Article VIII, section 2(b), Florida
Constitution, as implemented by section 166.021, Florida Statutes, its
taxing power is derived from Article VII of the Florida Constitution,
not Article VIII, Florida Constitution.3 Thus, this office has stated that
a county or municipality has no home rule powers with respect to the
levy of taxes, but must be able to point to constitutional or statutory
authority in exercising its taxing power.4
Section 212.055(2), Florida Statutes, authorizes local governments to
levy a discretionary sales surtax pursuant to an ordinance enacted by
the members of the county governing body and approved by a majority
of the county electors voting in a referendum on the surtax. The
statute specifically addresses the purposes for which the surtax may be
expended. Subsection (2)(d), states:
The proceeds of the surtax authorized by this subsection and
any accrued interest shall be expended . . . to finance, plan, and
construct infrastructure; to acquire land for public recreation,
conservation, or protection of natural resources; or to finance
the closure of county owned or municipally owned solid waste
landfills that have been closed or are required to be closed by
order of the Department of Environmental Protection. . . . The
proceeds and any interest may not be used for the operational
expenses of infrastructure . . .
1.
For the purposes of this paragraph, “infrastructure” means:
a. Any fixed capital expenditure or fixed capital outlay
associated with the construction, reconstruction, or
improvement of public facilities that have a life expectancy
of 5 or more years and any related land acquisition, land
improvement, design, and engineering costs.
The terms “fixed capital expenditure” and “fixed capital outlay” are
not defined for purposes of this section. Although the terms are not
defined in Chapter 212, Florida Statutes, the term “[f]ixed capital
outlay” is defined in Chapter 216, the statutory chapter that relates
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12-19
to state planning and budgeting. Pursuant to section 216.011(1)(p),
Florida Statutes, a “[f]ixed capital outlay” is
the appropriation category used to fund real property (land,
buildings, including appurtenances, fixtures and fixed
equipment, structures, etc.), including additions, replacements,
major repairs, and renovations to real property which
materially extend its useful life or materially improve or change
its functional use and including furniture and equipment
necessary to furnish and operate a new or improved facility. . . .
An “[e]xpenditure” is defined in section 216.011(1)(m), Florida
Statutes, to mean “the creation or incurring of a legal obligation to
disburse money.”5
In the absence of a definition of these terms for purposes of Chapter
212, Florida Statutes, a common understanding or definition of the
component parts of these phrases may also be useful in determining
their scope.6 The term “fixed” is generally understood to mean something
that is securely placed or established.7 “Fixed capital” has been defined
to mean the capital invested in fixed assets (land, buildings, machinery)8
or capital that is durable in character (such as buildings and machinery)
and can be used over an extended period of time.9
Thus, section 212.055, Florida Statutes, authorizes the expenditure of
the proceeds of the surtax authorized by this subsection to finance, plan,
and construct “infrastructure” as that term is defined in the statute.
That definition includes, by its terms, “land improvement, design, and
engineering costs” associated with the construction, reconstruction, or
improvement of public facilities having a life span of 5 or more years.
You have provided me with no details of what types of beach erosion
control projects may be under consideration, but have characterized
proposed beach erosion controls constructed by the city as “fixed assets
consisting of fixtures and fixed equipment that would improve public
beach facilities by countering beach erosion and materially extending
the useful life of the City’s public beaches[.]” You also indicate that
these permanent beach erosion control mechanisms erected by the city
“would certainly be intended to have a life expectancy of more than five
years.” To the extent that the projects themselves satisfy the statutory
criteria, I am of the opinion that the projects themselves and studies
which involve planning, property design and engineering costs may be
funded with local government infrastructure surtax revenues.
In Attorney General Opinion 94-79, this office considered whether
land improvement or design expenses could properly be purchased with
the proceeds of the discretionary sales surtax provided for in section
212.055(2), Florida Statutes. The opinion considered the definitions
of “fixed capital expenditure” and “fixed capital outlay” as well as
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“infrastructure” to determine that such items as fencing, swings, lumber
for bleachers and lighting fixtures, and the materials for landscape
design and tree and shrubbery planting would not be appropriate
expenditures of surtax proceeds. The opinion notes that these expenses
are more in the nature of day-to-day operational expenses that may not
be paid for with surtax funds. However, land improvement or design
expenses that occur in conjunction with a fixed capital expenditure or
fixed capital outlay associated with the construction, reconstruction or
improvement of public facilities, or an expenditure for such things as
materials for landscape design may be purchased with the proceeds of
the surtax when a new public facility is being built or an existing public
facility is being improved. The opinion concludes that these funds may
not be used independently for landscape design and improvement in the
absence of a related fixed capital outlay.
As you have described the City of Flagler Beach erosion control
project, the project would involve the construction of fixtures and fixed
equipment and the studies and plans involved in the construction of
such capital projects. Based on the language of section 212.055(2),
Florida Statutes, and previous opinions of this office, it is my opinion
that section 212.055(2), Florida Statutes, would authorize the city
to use surtax funds to fund the construction of beach erosion control
mechanisms and to fund the planning and studies involved in planning
this infrastructure project and the design and planning costs associated
with the project.
QUESTION 2.
As noted above, this office has previously concluded that section
212.055(2), Florida Statutes, requires that a general description of
the projects to be funded by a local government infrastructure surtax
must be placed on the ballot to approve the imposition of the surtax.10
As required by section 212.055(2)(b), Florida Statutes, “[a] statement
which includes a brief general description of the projects to be funded by
the surtax and which conforms to the requirements of s. 101.161 shall
be placed on the ballot[.]” Florida courts have recognized the general
rule that tax revenues must be expended for the purposes for which
they were collected, that is, funds raised by taxation for one purpose
cannot be diverted to another use.11 Thus, revenues from the surtax
must be expended on projects that fall within the general description
contained on the ballot.
Flagler County conducted a referendum in which county electors
authorized the county to adopt the “Flagler County Ten (10) Year Sales
Surtax to Fund Infrastructure Improvements” (the “Flagler Surtax”)
with the following ballot language:
To provide the funding for necessary public capital projects,
Flagler County and its cities require additional revenue. The
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12-19
proposed revenue source is a ten (10) year 0.5 cent (0.5¢) per
dollar sales surtax on taxable transactions occurring within
Flagler County. These revenues would be used for funding
public projects and improvements such as the renovation,
reconstruction and construction of roads, streets, pedestrian
safety projects, motor vehicles, public buildings and associated
capital facilities throughout Flagler County.
I understand your second question to be whether the ballot language
“funding public projects and improvements such as the renovation,
reconstruction and construction of roads, streets, pedestrian safety
projects, motor vehicles, public buildings and associated capital
facilities throughout Flagler County” would encompass public capital
projects relating to beach erosion control and the studies attendant to
these projects.
Under the doctrine of noscitur a sociis, the meaning of statutory
terms, and the legislative intent behind them, may be discovered by
referring to words associated with them in the statute.12 Under this
doctrine, words take their meaning based on their context or association
with other words in the statute. Thus, the phrase “public projects and
improvements” must be read in reference to the word associated with
it in the ballot language, i.e., “roads, streets, pedestrian safety projects,
motor vehicles, public buildings and associated capital facilities[.]”
To read the ballot language providing for funding “public projects and
improvements” without the qualifying language following it on the ballot
would appear to present so broad a categorization as to deny the voters
any genuine notice of what might be funded by the bond referendum.
That is, to read the ballot language “public projects and improvements”
without limitations expressed in the “such as” clause would effectively
authorize expenditures for a wide variety of projects without providing
the voters with a reasonable idea of what these projects might be. To
conclude that the use of a general description such as “public projects”
is sufficient to advise the voters of the purposes for which the surtax is
to be levied would effectively defeat the statutory purpose of requiring
such a description.
The referendum language limits use of these surtax funds for “public
projects and improvements such as the renovation, reconstruction and
construction of roads, streets, pedestrian safety projects, motor vehicles,
public buildings and associated capital facilities throughout Flagler
County.” This office has been presented with no description of what
types of projects may be under consideration. Thus, I cannot advise
you whether the permanent beach erosion control mechanisms the City
of Flagler Beach ultimately constructs would come within the scope of
this referendum language. However, as was concluded in my response
to Question One, to the extent that studies and design and planning
costs are undertaken in conjunction with an authorized project, these
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expenses would constitute appropriate expenditures of surtax proceeds.
Thus, it is my opinion that expenditures of the Flagler County Ten
(10) Year Sales Surtax to Fund Infrastructure Improvements are
limited to those public projects and types of projects “such as” roads,
streets, pedestrian safety projects, motor vehicles, public buildings,
and associated capital facilities. Expenditures for design and planning
studies which are undertaken in conjunction with an authorized project
are appropriate expenditures of local surtax funds.
See Op. Att’y Gen. Fla. 00-06 (2000) (s. 212.055[2], Fla. Stat., requires
that a general description of the projects to be funded by local government
infrastructure surtax be placed on the ballot to approve imposition of
surtax; revenues from surtax must be expended on projects falling within
general description contained on ballot); cf. Op. Att’y Gen. Fla. 08-08
(2008).
1
See Walter E. Heller & Company Southeast, Inc. v. Williams, 450 So. 2d
521 (Fla. 3d DCA 1984), review denied, 462 So. 2d 1108 (Fla. 1985); State
ex rel. Seaboard Air Line R. Co. v. Gay, 35 So. 2d 403 (Fla. 1948); Maas
Brothers, Inc. v. Dickinson, 195 So. 2d 193 (Fla. 1967).
2
See generally Contractors and Builders Association of Pinellas County
v. City of Dunedin, 329 So. 2d 314, 317 (Fla. 1976). See also City of Tampa
v. Birdsong Motors, Inc., 261 So. 2d 1 (Fla. 1972) (municipality’s power to
tax is subject to the restrictions in Art. VII, s. 9, Fla. Const.). And see Art.
VII, s. 9, Fla. Const., setting out taxing authority for counties.
3
See, e.g., Ops. Att’y Gen. Fla. 00-06 (2000) (county must expend revenues
from surtax on projects within the general description on ballot); 90-23
(1990) (city may not provide for the rebate of ad valorem taxes collected
on newly annexed property, in the absence of constitutional or statutory
authority allowing such action); 87-45 (1987); and 84-65 (1984) (units
of local government have no inherent power to impose taxes; the taxing
power must be derived from the state).
4
And see Op. Att’y Gen. Fla. 03-17 (2003), considering these definitions
in relation to s. 212.055(2), Fla. Stat.
5
Where a statute does not specifically define words of common usage, such
words must be given their plain and ordinary meaning. See Southeastern
Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d
1351 (Fla. 1984).
6
See Webster’s Third New International Dictionary “Fixed,” p. 861
(unabridged ed. 1981); 36A C.J.S. “Fix” p. 583 (“Fixed” has been interpreted
to mean established, firm, fastened, finally determined upon, immovable,
securely placed); and see Webster’s New Universal Unabridged Dictionary
“fixed,” p. 727 (2003) (“fastened, attached, or placed so as to be firm and
not readily movable; firmly implanted; stationary; rigid”).
7
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8
12-20
See Black’s Law Dictionary “Fixed capital,” p. 221 (8th ed. 1999).
See Webster’s Third New International Dictionary “Fixed capital,” p.
861 (unabridged ed. 1981).
9
See, e.g., Op. Att’y Gen. Fla. 08-08 (2008) and Attorney General
Opinions cited therein.
10
See, e.g., Supreme Forest Woodmen Circle v. Hobe Sound Co., 189 So.
249 (Fla. 1939); Ops. Att’y Gen. Fla. 00 29 (2000) and 77-26 (1977). Cf.
Dickinson v. Stone, 251 So. 2d 268 (Fla. 1971). And see Oven v. Ausley,
143 So. 588, 589-590 (Fla. 1932), stating:
11
When an enforced contribution is exacted from the people by
the power of taxation, it is for a specific public purpose, and
the fund so raised is a trust fund in the hands of the legal
custodians of it. There may exist circumstances in which the
fund may be diverted to some other lawful purpose than that for
which it was raised. Appropriation of public moneys for certain
public purposes involves the power of taxation, and when the
money is taken from a fund created by the levy of a tax and
applied to some other purpose it is equivalent to the levy of a
tax for such purpose. The limitation upon the rate of taxation
is for the protection of taxpayers and to secure economy in the
expenditure of public moneys.
And see Op. Att’y Gen. Fla. 02-55 (2002) (school capital outlay tax moneys
collected to fund district school projects would not be an appropriate
resource for funding projects on property no longer owned or controlled
by the school district).
See Turnberry Isle Resort and Club v. Fernandez, 666 So. 2d 254
(Fla. 3d DCA 1996); Cepcot Corporation v. Department of Business and
Professional Regulation, Construction Industry Licensing Board, 658 So.
2d 1092 (Fla. 2d DCA 1995); Ops. Att’y Gen. Fla. 00-07 (2000) (while staff
analysis refers to “invoices,” that term should be construed in light of the
other types of information referenced); 94-12 (1994); 90-55 (1990) (terms
of section should be construed in connection with, and their meaning
ascertained by reference to, other words and phrases of the section with
which they are associated).
12
AGO 12-20 – June 27, 2012
GOVERNMENT IN THE SUNSHINE – WHISTLE-BLOWERS –
PUBLIC RECORDS – OPEN MEETINGS – HILLSBOROUGH
TRANSIT AUTHORITY
CONSIDERATION OF CONFIDENTIAL INFORMATION AT
AUTHORITY MEETING
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To: Mr. Charles Fletcher, General Counsel, Hillsborough Transit
Authority
QUESTIONS:
1. May the HART board of directors be designated as an
appropriate local official permitted to receive complaints
and investigative documents under section 112.3188, Florida
Statutes?
2. If so, is the board required to consider and take action
upon such a complaint at a public meeting pursuant to section
286.011, Florida Statutes?
SUMMARY:
1. The HART board of directors may be designated as the
appropriate local official to receive complaints and investigative
documents under section 112.3188, Florida Statutes. In light of
the discussion in Question Two, however, such designation may
not be advisable.
2. The HART board of directors is a collegial public body
which must comply with the public meeting requirements in
section 286.011, Florida Statutes, when carrying out official
business of the authority. Absent a statutory exemption, the
handling of confidential information or records during the
course of public meetings does not otherwise allow meetings of
the board to be closed.
You state that the Hillsborough Transit Authority (HART) board
of directors has adopted an interim procedure naming itself as the
appropriate local official to receive certain whistle-blower complaints
and to investigate such claims.1 The board, however, questions whether
it may carry out such functions and, if so, whether it must do so at an
open meeting.
QUESTION 1.
The Whistle-blower’s Act (act), sections 112.3187-112.31895, Florida
Statutes, is intended to prevent agencies, or independent contractors of
agencies, from taking retaliatory action against an employee who reports
violations of law on the part of a public employer or an independent
contractor.2 It protects any individual “who discloses information to an
appropriate agency alleging improper use of governmental office, gross
waste of funds, or any other abuse or gross neglect of duty on the part of
an agency, public officer, or employee.”3
In order to qualify as a whistle-blower complaint, particular
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information must be disclosed to certain statutorily designated officials.4
The act provides that for disclosures concerning a local governmental
entity, such as a county, the information must be disclosed to a chief
executive officer as defined in section 447.203(9), Florida Statutes, or
“other appropriate local official.”5
While the term “other appropriate local official” is not defined in the
act, this office in Attorney General Opinion 96-40 considered whether
a town’s ethics commission could be considered within the scope of the
term. Recognizing that the use of a singular noun could raise questions
of its application to a collegial body, the opinion found that the
legislation clearly contemplated that confidential information gathered
during the processing of a complaint could be shared with others and
still maintain its confidential status.6 The opinion stated that to read
the act otherwise would render its confidentiality provisions useless and
negate the protections afforded to individuals who come forward with
complaints. Based upon the above, this office concluded that the town’s
ethics commission constituted an “other appropriate local official.”7
Here, the board of directors has been named the “appropriate local
official” to receive and consider certain whistle-blower complaints.
Applying the analysis and conclusion in Attorney General Opinion 96-40
and finding nothing in the Whistle-blower Act that would preclude the
appointment of a board to be the appropriate agency official to handle
whistle-blower complaints, I would conclude that the HART board of
directors may receive and act upon such complaints. In light of the
discussion in Question Two, however, such a designation to a collegial
body subject to the open meetings requirements in section 286.011,
Florida Statutes, may not be advisable.
QUESTION 2.
Section 112.3188(1), Florida Statutes, provides:
(1) The name or identity of any individual who discloses in
good faith to the Chief Inspector General or an agency inspector
general, a local chief executive officer, or other appropriate local
official information that alleges that an employee or agent of an
agency or independent contractor:
(a) Has violated or is suspected of having violated any federal,
state, or local law, rule, or regulation, thereby creating and
presenting a substantial and specific danger to the public’s
health, safety, or welfare; or
(b) Has committed an act of gross mismanagement,
malfeasance, misfeasance, gross waste of public funds, or gross
neglect of duty may not be disclosed to anyone other than a
member of the Chief Inspector General’s, agency inspector
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general’s, internal auditor’s, local chief executive officer’s,
or other appropriate local official’s staff without the written
consent of the individual, unless the Chief Inspector General,
internal auditor, agency inspector general, local chief executive
officer, or other appropriate local official determines that: the
disclosure of the individual’s identity is necessary to prevent a
substantial and specific danger to the public’s health, safety, or
welfare or to prevent the imminent commission of a crime; or
the disclosure is unavoidable and absolutely necessary during
the course of the audit, evaluation, or investigation.
Moreover, all information received in the course of a whistle-blower
investigation is confidential and exempt, if the information is being
received or derived from allegations as set forth in paragraph (1)(a) or
paragraph (1)(b) of section 112.3188(1) and an investigation is active.8
Thus, the act protects the identity of employees and persons who
disclose information that can serve as the basis for a whistle-blower
complaint, as well as information received in the course of a whistleblower investigation. The act specifies those to whom confidential
information may be disclosed and limits the disclosure of a whistleblower’s identity to specific circumstances. You have not asserted that
such circumstances are present.
As a collegial body of a public agency created by law or ordinance,
however, the board of directors for HART must take official action
at a public meeting which complies with the requirements of section
286.011, Florida Statutes, Florida’s Government in the Sunshine Law.9
Only the Legislature, by general law passed by a two-thirds majority,
may provide for the exemption of meetings from the Sunshine Law.10
The Supreme Court of Florida has held that in the absence of a
statute exempting a meeting in which privileged material is discussed,
section 286.011, Florida Statutes, may not be construed to contain any
exceptions for such meetings.11 Section 119.07(7), Florida Statutes,
clearly provides that an exemption from the Public Records Law “does
not imply an exemption from s. 286.011. The exemption from s. 286.011
must be expressly provided.” Thus, exemptions from the Public Records
Law do not by implication allow a public agency to close a meeting
where exempt records are to be discussed in the absence of a specific
exemption from the Sunshine Law.12
This office, in an opinion request with confidentiality concerns
similar to those you have raised, concluded that a committee created
by a public agency and charged with the responsibility of reviewing
confidential files was subject to the requirements of section 286.011,
Florida Statutes, in the absence of an exemption from the Sunshine
Law. The committee involved in Attorney General Opinion 95-65
was established to provide for uniform case review and approval of
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12-20
treatment for emotionally disturbed children and adolescents. In
reviewing individual cases, confidential information contained within
the clinical files of patients was disseminated to the committee and
case managers presented psychiatric and psychological evaluations of
children and updated the committee on individual children’s progress
in treatment. While several statutory exemptions to the Sunshine Law
for meetings or portions of meetings at which confidential records must
be considered were cited, no exemption from section 286.011, Florida
Statutes, was found for the review committees presented in the opinion.
The opinion concluded that the meetings at which confidential records
were discussed were subject to the Government in the Sunshine Law.
I would also note that in Attorney General Opinion 2010-04, this office
declined to comment on particular procedures for conducting meetings of
a school board at which confidential student records would be discussed,
but suggested that the school board be sensitive to the confidentiality of
such records reviewed during a meeting and protect the records to the
extent that is possible to protect the privacy of the student involved.
Similarly, the HART board must protect the confidential information
it is considering at a meeting and must not disclose the name of the
whistle-blower unless one of the specific circumstances listed in the
statute is present.13
Several statutory provisions exempt meetings of various boards or
committees from the Sunshine Law when confidential information is
presented or discussed.14 You have not cited, nor have I found, any
statutory provision that would close the meetings of the HART board
of directors when it is considering a whistle-blower complaint. Absent
a statutory exemption from section 286.011, Florida Statutes, for
the HART board of directors when it is considering or acting upon a
whistle-blower complaint, the board must otherwise comply with the
public meetings requirements of the Sunshine Law and may not close
its meetings.
See HART Board of Directors, Interim Whistleblower Complaint
Review Procedures, Doc. \551050\1 - #2807895v3, designates the HART
board of directors as the appropriate official to receive and investigate
whistle-blower complaints when a complaint alleges a violation by the
chief executive officer (CEO) or a board member, or involves a conflict
by the CEO that precludes the CEO from appropriately addressing the
complaint.
1
See s. 112.3187(3)(a), Fla. Stat., defining “Agency” as “any state,
regional, county, local, or municipal government entity, whether executive,
judicial, or legislative; any official, officer, department, division, bureau,
commission, authority, or political subdivision therein; or any public
school, community college, or state university.”
2
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See s. 112.3187(2), Fla. Stat.
See Op. Att’y Gen. Fla. 93-80 (1993) in which it was concluded that a
complaint filed with the Office of the Public Counsel did not come within
the scope of the Whistle-blower’s Act so that the protections of the act
would be extended to the complainant, nor would transferring a copy of
the complaint to the Chief Inspector General transform the complaint
into one made within the terms of the statute.
4
Section 112.3187(6), Fla. Stat. See s. 447.203(9), Fla. Stat., stating
that “‘[c]hief executive officer’ for the state shall mean the Governor
and for other public employers shall mean the person, whether elected
or appointed, who is responsible to the legislative body of the public
employer for the administration of the governmental affairs of the public
employer.”
5
See Op. Att’y Gen. Fla. 96-40 (1996) citing Senate Staff Analysis
and Economic Impact Statement, Senate Bill 530, March 20, 1995, and
comparing Op. Att’y Gen. Fla. 85-99 (1985), in which this office concluded
that the term “chief executive officer” could include a duly appointed labor
negotiating committee such that discussions between the committee and
the governing body relative to collective bargaining negotiations would be
exempt from the public meetings law as provided under state statute.
6
Cf. Hutchison v. Prudential Insurance Co. of America, 645 So. 2d
1047, 1049 (Fla. 3d DCA 1994) (sheriff’s department determined to be an
appropriate governmental agency to receive whistle-blower complaint, as
it had authority to “otherwise remedy the violation or act”). And see Op.
Att’y Gen. Fla. 10-48 (2010) (county’s ethics commission designated to
investigate whistle-blower complaints).
7
Section 112.3188(2)(b), Fla. Stat. See also s. 112.3188(2)(c), Fla.
Stat., providing an exception for the release of confidential and exempt
information, when it is determined that disclosure of the information is
absolutely necessary to prevent a substantial and specific danger to the
public’s health, safety, or welfare or to prevent the imminent commission
of a crime, to persons who are in a position to prevent the public danger
or to prevent the imminent commission of a crime based on the disclosed
information.
8
Section 286.011, Fla. Stat., requires that all meetings of any board or
commission of any state agency or authority or of any agency or authority
of any county, municipal corporation, or political subdivision, except as
otherwise provided in the Constitution, at which official acts are to be
taken are declared to be public meetings open to the public at all times,
and no resolution, rule, or formal action shall be considered binding except
as taken or made at such meeting. The board or commission must provide
reasonable notice of all such meetings and the minutes of a meeting of
any such board or commission of any such state agency or authority shall
be promptly recorded, and such records shall be open to public inspection.
9
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10
See s. 24, Art. I, Fla. Const.
11
See City of Miami Beach v. Berns, 245 So. 2d 38 (Fla. 1971).
12-21
See Ops. Att’y Gen. Fla. 04-44 (2004) (PRIDE), 95-65 (1995) (district case
review committee), 93-41 (1993) (county criminal justice commission), 9188 (1991) (pension board), and 91-75 (1991) (school board). And see Op.
Att’y Gen. Fla. 05-03 (2005) (confidentiality provisions of cited federal law
do not authorize child abuse death review committee to close its meetings
although the committee should take steps to ensure that identifying
information is not disclosed at such meetings).
12
Cf. Op. Att’y Gen. Fla. 96-40 (1996) (town’s ethics commission may not
require an individual to sign a waiver of confidentiality as a condition of
processing a complaint under the “Whistle-blower’s Act,” in light of the
statute’s terms making the identity of the complainant confidential as an
integral part of the process).
13
See, e.g., s. 286.0113(1), Fla. Stat. (portion of meeting that would
reveal a confidential security system plan or portion thereof is exempt
from s. 286.011 and s. 24[b], Art. I, State Const.); s. 288.9551(3), Fla.
Stat. (portion of meeting of board of directors of Scripps Florida Funding
Corp. at which confidential information is presented or discussed is
exempt from s. 286.011 and s. 24[b], Art. I, State Const., and records
generated during any portion of an exempt meeting are confidential
and exempt from s. 119.07[1] and s. 24[a], Art. I, State Const.); s.
383.412(3)(a), Fla. Stat. (portions of meetings of the State Child Abuse
Death Review Committee or a local committee at which confidential
information is discussed are exempt from s. 286.011 and s. 24[b], Art. I,
State Const.); s. 627.0628(3)(f)2.a., Fla. Stat. (portion of meeting of the
Florida Commission on Hurricane Loss Projection Methodology or of a
rate proceeding on an insurer’s rate filing at which a confidential trade
secret is discussed is exempt from s. 286.011 and s. 24[b], Art. I., State
Const.); s. 1004.226(8)(b)1., Fla. Stat. (portion of meeting of the Florida
Technology, Research, and Scholarship Board at which confidential
information is discussed is exempt from s. 286.011 and s. 24[b], Art. I,
State Const.); and s. 1004.4472(4), Fla. Stat. (portion of meeting of the
Florida Institute for Human and Machine Cognition, Inc., or a subsidiary
at which confidential information is presented or discussed is exempt
from s. 286.011 and s. 24[b], Art. I, State Const.).
14
AGO 12-21 – June 27, 2012
PUBLIC SERVANTS – PUBLIC CORRUPTION – BID
TAMPERING – CRIME STOPPERS
NON-PROFIT CRIME STOPPERS NOT “PUBLIC SERVANT” FOR
PURPOSES OF BID TAMPERING PROSECUTION
233
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
To: The Honorable Jerry Hill, State Attorney, Tenth Judicial Circuit
QUESTION:
Is the executive director of the Heartland Crime Stoppers
Program a public servant for purposes of alleged bid tampering
under section 838.22, Florida Statutes?
SUMMARY:
The executive director of the Heartland Crime Stoppers
Program, a private, non-profit corporation, does not fall within
the definition of a “public servant” for purposes of prosecution
under section 838.22, Florida Statutes.
As a result of an investigation by your office into the activities of the
Heartland Crime Stoppers Program (HCS) and its executive director
involving alleged bid tampering under section 838.22, Florida Statutes,
you question whether the program is a public entity and its executive
director a public servant subject to the provisions of the statute. You
state that Polk County Crime Stoppers, Incorporated, d/b/a Heartland
Crime Stoppers, is funded in large part by a grant from the Attorney
General’s Office,1 but also receives donations from other law enforcement
agencies and the public. Heartland Crime Stoppers is a registered nonprofit corporation in Florida and qualifies as a 501(c)(3) corporation
with the Internal Revenue Service. The HCS’s website states that its
program began in 1982 as a result of the combined efforts of the city
commission and the city’s police department, but now operates as an
independent organization. The program provides a method for local law
enforcement to receive information on crimes.2
Section 838.22, Florida Statutes, makes it unlawful for a public
servant with corrupt intent to influence or attempt to influence
the competitive bidding process undertaken by any state, county,
municipal, or special district agency, or any other public entity, for the
procurement of commodities or services.3 For purposes of the statute,
section 838.014(6), Florida Statutes, defines “[p]ublic servant” as:
(a) Any officer or employee of a state, county, municipal, or
special district agency or entity;
(b) Any legislative or judicial officer or employee;
(c) Any person, except a witness, who acts as a general or
special magistrate, receiver, auditor, arbitrator, umpire,
referee, consultant, or hearing officer while performing a
governmental function; or
(d) A candidate for election or appointment to any of the
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12-21
positions listed in this subsection, or an individual who has been
elected to, but has yet to officially assume the responsibilities
of, public office.4
The plain language of the statute defines “public servant” in a
manner that would appear to exclude officers or employees of a private
entity. Neither section 838.014 nor section 838.22, Florida Statutes,
has been interpreted by a court of this state for purposes of determining
what constitutes a “public servant.” The definition of a “public servant,”
however, was analyzed in an interim report prepared in 2010 by the
Nineteenth Statewide Grand Jury on public corruption in Florida.5
Testimony heard by the grand jury indicated that impediments to
prosecuting criminal violations under Chapter 838, Florida Statutes,
were in large part due to the current definition of “public servant,” as
the “narrow definition . . . prevents numerous prosecutions of corrupt
individuals who are serving a governmental function or service but are
not within reach of the law as written.”6 The report recognized that
many governmental duties have been shifted to private or semi-private
entities and actors who do not fall within the existing narrow definition,
thereby escaping prosecution under the anti-corruption laws.7
The Grand Jury’s first and “most critical” recommendation was to
redefine “public servant” to include
[a]ny officer, director, partner, manager, representative, or
employee of a nongovernmental entity, private corporation,
quasi-public corporation, quasi-public entity or anyone covered
under chapter 119 that is authorized by law or contract to
perform a governmental function or provide a governmental
service on behalf of the state, county, municipal, or special
district agency or entity to the extent that the individual’s
conduct relates to the performance of the governmental
function or provision of the governmental service.8
The report further suggested defining “governmental function” or
“governmental service” for purposes of the act to mean “performing a
function or serving a governmental purpose which could properly be
performed or served by an appropriate governmental unit or which is
demonstrated to perform a function or serve a purpose which would
otherwise be a valid subject for the allocation of public funds.”9
The present definition of “public servant” came into existence when
the “Paul Mendelson Citizens’ Right to Honest Government Act”
was enacted.10 The original bill filed for enactment of the legislation
proposed defining “public servant” to include:
[a]ny officer, director, partner, manager, representative, or
employee of a nongovernmental entity that is authorized
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by law or contract to perform a governmental function or
provide a governmental service on behalf of a state, county,
municipal, or special district agency or entity to the extent
that the individual’s conduct relates to the performance of
the governmental function or provision of the governmental
service[.]11
This language from the original bill was deleted and the present
definition substituted, however, in a strike all amendment, which, as
stated by the sponsor, “does not contain reference to non-governmental
entities.”12 The sponsor further expressed concern “about bringing
non-governmental folks potentially into that net; we didn’t think that
that was good public policy.”13 As noted in the grand jury report, the
amendment to the original bill has no reference to an agent of the
government or a person acting on behalf of an agent or employee of
the government and it struck language which would have included nongovernmental entities performing a governmental function or service.
The report states that the amendment “managed to omit anyone who
is not directly an ‘officer or employee of a state, county, municipal, or
special district agency or entity.’”14
Although the grand jury report was issued in 2010, it does not appear
that the Legislature has modified the definition of “public servant” to
accommodate the grand jury’s recommendation.
In light of the grand jury’s analysis of the present definition of “public
servant” in section 838.014(6), Florida Statutes, and the fact that nongovernmental entities performing governmental acts or services are
not included within the definition, I must conclude that the executive
director of the Heartland Crime Stoppers Program is not a “public
servant.”
I would note, however, that you have indicated that alleged bid
tampering activities by the Heartland Crime Stoppers Program and
its executive director would be subject to prosecution if the executive
director was a “public servant” under the bid tampering statute. It
is regrettable that such an organization using public funds cannot be
held accountable for actions that could be prosecuted if carried out by
an individual meeting the technical definition of a “public servant.”
Consideration of this situation for possible legislative action to ensure
accountability of the expenditure of public funds may be advisable.
1
Section 16.555(5), Fla. Stat., provides:
(a) The [D]epartment [of Legal Affairs] shall be the
disbursing authority for distribution of funding to units of
local government, upon their application to the department for
funding assistance.
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12-21
(b) Funds deposited in the trust fund pursuant to paragraph
(4)(b) shall be disbursed as provided in this paragraph. Any
county may apply to the department for a grant from the funds
collected in the judicial circuit in which the county is located
under s. 938.06. A grant may be awarded only to counties which
are served by an official member of the Florida Association
of Crime Stoppers and may only be used to support Crime
Stoppers and their crime fighting programs. Only one such
official member shall be eligible for support within any county.
In order to aid the department in determining eligibility, the
secretary of the Florida Association of Crime Stoppers shall
furnish the department with a schedule of authorized crime
stoppers programs and shall update the schedule as necessary.
The department shall award grants to eligible counties from
available funds and shall distribute funds as equitably as
possible, based on amounts collected within each county, when
more than one county is eligible within a judicial circuit.
2
See http://www.heartlandcrimestoppers.com/about.aspx.
The statute specifies instances in which unlawful activity occurs and
provides penalties:
3
(1) It is unlawful for a public servant, with corrupt intent
to influence or attempt to influence the competitive bidding
process undertaken by any state, county, municipal, or special
district agency, or any other public entity, for the procurement
of commodities or services, to:
(a) Disclose material information concerning a bid or
other aspects of the competitive bidding process when such
information is not publicly disclosed.
(b) Alter or amend a submitted bid, documents or other
materials supporting a submitted bid, or bid results for the
purpose of intentionally providing a competitive advantage to
any person who submits a bid.
(2) It is unlawful for a public servant, with corrupt intent to
obtain a benefit for any person or to cause unlawful harm to
another, to circumvent a competitive bidding process required
by law or rule by using a sole-source contract for commodities
or services.
(3) It is unlawful for any person to knowingly agree, conspire,
combine, or confederate, directly or indirectly, with a public
servant to violate subsection (1) or subsection (2).
(4) It is unlawful for any person to knowingly enter into a
contract for commodities or services which was secured by a
public servant acting in violation of subsection (1) or subsection
(2).
(5) Any person who violates this section commits a felony
of the second degree, punishable as provided in s. 775.082,
s. 775.083, or s. 775.084.
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Section 838.014(6), Fla. Stat.
See Nineteenth Statewide Grand Jury, Case No. SC 09-1910,
First Interim Report, “A Study of Public Corruption in Florida and
Recommended Solutions,” dated December 17, 2010.
5
6
Id. at p. 17.
7
Id. at pp. 17-18.
8
Id. at pp. 16-17.
9
Id. at p. 17.
10
Chapter 2003-158, Laws of Fla.
See HB 847, 2003 Regular Legislative Session, Original Filed Version,
known as the “Citizens’ Right to Honest Government Act.” See also
Florida Public Corruption Study Commission, Final Report, February
3, 2000, p. 8, proposing a comprehensive definition of “public servant”
to include not only public employees but also specifically described nongovernmental entities performing “privatized” governmental services
and functions authorized by law or contract.
11
Subcommittee on Ethics and Elections, Florida House of
Representatives, Rep. Goodlette, HB 847, March 27, 2003, Tape 2 of 2.
12
13
Id.
Nineteenth Statewide Grand Jury, Case No. SC 09-1910, supra n.5 at
p. 19.
14
AGO 12-22 – August 1, 2012
PUBLIC OFFICERS – TERMS OF OFFICE – SPECIAL
DISTRICTS – TERM LIMITS – BAY MEDICAL CENTER
REAPPOINTMENT ELIGIBILITY OF INDIVIDUAL WHO HAS
SERVED TWO FOUR YEAR TERMS WITH A BREAK OF SERVICE
OF ONE YEAR BETWEEN TERMS
To: Mr. Terrell K. Arline, Bay County Attorney
QUESTION:
Under the provisions of Chapter 2005-343, Laws of Florida,
may a person who has served two four-year terms on the Board
of Trustees of Bay Medical Center, separated by a one-year
absence, be reconfirmed to another four-year term?
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SUMMARY:
An individual who has served one four-year term, followed by
a one-year absence, then served another four-year term has not
served two consecutive, full four-year terms which would render
him or her ineligible for reappointment to the board.
Chapter 2005-343, Laws of Florida, codifies all previously enacted
special acts relating to the Board of Trustees of Bay Medical Center
(board) and provides a single comprehensive charter for the independent
special district which was previously created.1 The charter provides
that the board shall consist of nine persons, each appointed to serve
four-year terms.2
Relative to your question, the act states:
A person who has served two full, consecutive terms as a
member of the board of trustees shall not be eligible for
reconfirmation until the next regular appointment process
occurring approximately 2 years after that person’s termination
of service.3 (e.s.)
You state that recently a nominee was presented for consideration
who has served one four-year term as the county commission’s appointee,
followed by a one-year absence, then reappointed by the medical staff
as its appointee to serve another four-year term. The member has now
been nominated to serve another four-year term. Counsel for the special
district has opined that the nomination may go forward because the
member has not served two full, consecutive terms. The chairman of
the county commission, however, is concerned that such a construction
of the special act weakens the term limit provisions, by allowing a
member to serve numerous terms by leaving the board between terms.
This opinion is expressly limited to a consideration of the application of
Chapter 2005-343, Laws of Florida, under the specific facts presented
in your inquiry.
It is a generally established principle that the right to hold office is
a valuable one which should not be curtailed in the absence of plain
provisions of law.4 If ambiguity exists in construing provisions limiting
the right to hold office, those provisions should be construed in favor of
eligibility.5
The plain language of section 3(3) of Chapter 2005-343, Laws of
Florida, states that a person must serve two, full consecutive terms
before becoming ineligible for consideration to fill another term of office
for a period of two years. It is a general rule of statutory construction
that in the absence of a statutory definition, the plain and ordinary
meaning of words can be ascertained if necessary by reference to a
dictionary.6 The term “consecutive” is defined as “having no interval or
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break: continuous.”7 In the instant inquiry, the individual has served
one four-year term with a break of one year before serving a second
term. Under such facts, it does not appear that the individual has
served two “consecutive” terms.
Accordingly, it is my opinion that an individual who has served one
four-year term, followed by a one-year absence, then served another
four-year term has not served two consecutive, full four-year terms
which would render the individual ineligible for reappointment to the
board.
1
Section 1, Ch. 2005-343, Laws of Fla.
2
Section 3(3), Ch. 2005-343, Laws of Fla.
3
Id.
See, e.g., Op. Att’y Gen. Fla. 71-324 (1971). And see Treiman v.
Malmquist, 342 So. 2d 972 (Fla. 1977); Ervin v. Collins, 85 So. 2d 852
(Fla. 1956) (statutes and constitutions imposing restrictions upon the
right of a person to hold office should receive a liberal construction in favor
of the right of the people to exercise freedom of choice in the selection of
officers); Vieira v. Slaughter, 318 So. 2d 490 (Fla. 1st DCA 1975), cert.
denied, 341 So. 2d 293 (Fla. 1976).
4
5
Ervin, supra at 856.
6
See Green v. State, 604 So. 2d 471, 473 (Fla. 1992); Plante v. Department
of Business and Professional Regulation, 685 So. 2d 886 (Fla. 4th DCA
1996); State v. Cohen, 696 So. 2d 435 (Fla. 4th DCA 1997).
Webster’s Third New International Dictionary (1981, unabridged), p.
482.
7
AGO 12-23 – August 1, 2012
SPECIAL DISTRICTS – MOBILE HOME PARK RECREATION
DISTRICTS – VACANCIES
REQUIREMENTS FOR FILLING VACANCIES ON BOARD OF
TRUSTEES OF MOBILE HOME PARK RECREATION DISTRICT
To: Mr. Karl W. Bohne, Jr., General Counsel for the Port Malabar
Holiday Park Mobile Home Park Recreation District
QUESTIONS:
1. In the event that a vacancy on the board of trustees of
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the Port Malabar Holiday Park Mobile Home Park Recreation
District cannot be filled by appointment by the board, may the
board continue to operate with less than nine members?
2. In the event that a vacancy on the board of trustees of the
district cannot be filled by appointment of the board should such
a vacancy in office for the unexpired term be filled pursuant to
section 114.04, Florida Statutes?
3. If the answer to Question 2 is in the affirmative, then in
the event that the Governor is unable to fill the vacancy in the
office for the unexpired term pursuant to section 114.04, Florida
Statutes, is the district required to hold a special election to fill
the vacant office for the remaining unexpired term?
SUMMARY:
1. The board of trustees of the Port Malabar Holiday Park
Mobile Home Park Recreation District is, by statute, constituted
as a nine-member board. This office cannot advise the board
that it may continue to do business indefinitely with less than
the statutorily prescribed number of board members. However,
the statute does not require the suspension of business upon the
occurrence of a vacancy and would appear to allow the board to
continue to function and conduct district business while seeking
a person to fill the vacancy on the board.
2. The provisions of section 114.04, Florida Statutes, do not
apply to the Port Malabar Holiday Park Mobile Home Park
Recreation District as the Legislature has prescribed the method
of filling vacancies on the board of trustees in section 418.302(5),
Florida Statutes.
3. In light of my response to Question Two, no discussion of
your third question is necessary.
The Port Malabar Holiday Park Mobile Home Park Recreation
District was created in 1983 pursuant to Part II, Chapter 418, Florida
Statutes, as a mobile home recreation district. The district operates
as an independent special district.1 Pursuant to section 418.304(3),
Florida Statutes, the board of trustees of the district is authorized:
To acquire, purchase, construct, improve, equip, and maintain
streets and lights, recreational facilities, and other common
areas of all types, including real property and personal
property, within the boundaries of the existing platted mobile
home park to be acquired by the district; such acquisition may
be by purchase, lease, or gift.
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The district may levy a special assessment known as a “recreation
district tax” against all improved residential parcels situated within
the district for the purpose of providing funds to implement the powers
of the district.2 In addition, the district may “issue bonds or notes to
finance, in whole or in part, the cost of construction, acquisition, or
improvement of common real property and personal property of the
district.”3 Thus, the Port Malabar Holiday Park Mobile Home Park
Recreation District was created pursuant to section 418.30, Florida
Statutes, as an independent special district authorized to levy special
assessments against the taxable real estate within its boundaries for
recreational purposes.
The statutes prescribe the composition and duties of the governing
body of a mobile home park recreation district. Section 418.302,
Florida Statutes, states that the governing body “shall consist of a ninemember board of trustees” who are elected by district electors and serve
staggered two-year terms. Trustees may succeed themselves in office.4
As prescribed by statute:
Any vacancy on the board of trustees shall be filled for the
unexpired term by the appointment of a successor from among
the qualified electors of the district by the remaining trustees.
Any trustee who fails to discharge her or his duties may be
removed for cause by the board of trustees after due notice
and an opportunity to be heard upon charges of malfeasance
or misfeasance. A trustee who is not guilty of malfeasance or
misfeasance in office is relieved of any personal liability for acts
done by her or him while holding office. Except with respect
to matters wherein it is adjudged that the trustee is liable for
gross negligence or misconduct in the performance of her or
his duties, a trustee who is made a party to any action, suit, or
proceeding solely by reason of her or his holding office in the
district shall be indemnified by the district against reasonable
expenses, including attorney’s fees, incurred by the trustee in
defending such suit, action, or proceeding.5
Thus, the statute specifically provides that any vacancy on the board
of trustees must be filled by the appointment of a successor to fill the
remainder of the unexpired term. This successor must be appointed by
the trustees from among the qualified electors of the district.6 According
to your letter, “the District may not be able to fill vacancies7 for the
unexpired term of an office as there appears to be no qualified elector
willing to step up and fill the vacancy [sic] office.”
QUESTION 1.
You ask whether, in the event that a vacancy on the board of trustees
of the Port Malabar Holiday Park Mobile Home Park Recreation
District cannot be filled by appointment by the board, the board may
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12-23
continue to operate with less than nine members. According to your
letter, a quorum of members on the board of trustees for the district
would continue to be present in order to conduct business.
Section 418.302(1), Florida Statutes, provides that “[t]he governing
body of a recreation district created pursuant to s. 418.30 shall consist
of a nine-member board of trustees elected by the electors of the district.”
(e.s.) And, section 418.302(5), Florida Statutes, says a vacancy shall
be filled. It is the general rule that a legislative direction as to how a
thing is to be done is, in effect, a prohibition against its being done in
any other way.8
The district cannot contravene the statutory requirement of a ninemember board of trustees by conducting business in an on-going fashion
with an eight-member board. However, the statute does not require
the suspension of business upon the occurrence of a vacancy, but would
appear to allow the board to continue to function and conduct district
business while seeking a person to fill the vacancy on the board so long
as a quorum is present.
QUESTION 2.
You have also asked whether the Governor may fill the vacancy
pursuant to section 114.04, Florida Statutes, in the event that a vacancy
on the board of trustees of the district cannot be filled by appointment
of the board.
Section 114.04, Florida Statutes, makes provision for filling vacancies
in district offices:
Except as otherwise provided in the State Constitution, the
Governor shall fill by appointment any vacancy in a state,
district, or county office, other than a member or officer of the
Legislature, for the remainder of the term of an appointive
officer and for the remainder of the term of an elective office, if
there is less than 28 months remaining in the term; otherwise,
until the first Tuesday after the first Monday following the next
general election. . . .
Despite the language in section 114.04, Florida Statutes, which
authorizes the Governor to fill vacancies in district offices, the
Legislature specifically provided in section 418.302(5), Florida Statutes,
that vacancies on the board of trustees of mobile home park recreation
districts would be filled by appointment by the remaining trustees.
In Attorney General Opinion 99-21, this office considered a similar
question with regard to vacancies on the Board of Commissioners of
the West Volusia Hospital Authority and concluded that it was the
district’s enabling legislation that controlled the filling of vacancies.
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The enabling legislation for the hospital authority required that the
remaining members of the authority’s board of commissioners fill any
vacancies on the board. However, the commissioners questioned their
authority to fill a vacancy in light of the language in section 114.04,
Florida Statutes. The 1999 opinion noted that this office had earlier
recognized that the language requiring that vacancies in a state, district
or county office (other than a member of the Legislature) be filled by
the governor was added by an amendment to the statutes in 1977.9
These earlier opinions, however, recognize that the Legislature has the
authority to provide by general or special law for the filling of vacancies
in special district offices and has done so outside the terms of section
114.04, Florida Statutes. Because this office must presume the validity
of duly enacted legislation, Attorney General Opinion 99-21 concluded
that the enabling legislation for the West Volusia Hospital Authority
controlled the filling of vacancies on the board of commissioners and
that section 114.04, Florida Statutes, did not apply.
Likewise, the Legislature, in adopting section 418.302, Florida
Statutes,10 had the authority to provide for the filling of vacancies in
office on the boards of trustees of mobile home park recreation districts
and did so in subsection (5). This office cannot declare a statue repealed
by implication, rather, the terms of the statute are presumed valid and
effective until declared otherwise by a court of competent jurisdiction in
an appropriate judicial proceeding. Furthermore, it is the last adopted
expression of the Legislature that will generally prevail in the case of
two statutory provisions that cannot be reconciled.11 Section 418.302,
Florida Statutes, is not only the more specific expression of legislative
intent,12 being directed specifically to mobile home park recreation
districts rather than to special districts generally, but it is the later
expression of the Legislature’s intent having been adopted in 1983.13
Thus, it is my opinion that, in the event a vacancy on the board of
trustees of the district cannot be filled by appointment of the board, the
provisions of section 114.04, Florida Statutes, may not be utilized to fill
a vacancy on the board.
QUESTION 3.
In light of my response to your second question, no discussion of your
third question is necessary.
1
See Official List of Special Districts Online - Directory, compiled by
the Department of Economic Opportunity pursuant to s. 189.4035(1), Fla.
Stat. And see s. 418.30, Fla. Stat., authorizing any municipality or county
in the state to create one or more mobile home park recreation districts
by ordinance approved by a vote of the electors residing in the proposed
district.
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2
Section 418.304(4), Fla. Stat.
3
Section 418.304(5), Fla. Stat.
4
Section 418.302(3), Fla. Stat.
5
Section 418.302(5), Fla. Stat.
12-23
And see Art. VI, Port Malabar Holiday Park Mobile Home District
Recreation District Board of Trustees by-laws which provides that “[i]f
the office of any member of the Board of Trustees becomes vacant prior
to the expiration, of such member’s term of office, the Board of Trustees
shall fit [sic] the vacancy by appointment of a successor from among the
electors of the District. Such appointed shall hold office for the remainder
of the term of the vacant office.”
6
You have not indicated the nature of any vacancy, but Art. X, s. 3, Fla.
Const., provides that a “[v]acancy in office shall occur upon the creation
of an office, upon the death, removal from office, or resignation of the
incumbent or the incumbent’s succession to another office, unexplained
absence for sixty consecutive days, or failure to maintain the residence
required when elected or appointed, and upon failure of one elected or
appointed to office to qualify within thirty days from the commencement
of the term.”
7
See Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle
Hotel, 56 So. 2d 341, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815, 817
(Fla. 1976).
8
See s. 1, Ch. 77-235, Laws of Fla. The amendment removed language
stating that a vacancy was created when “any office created or continued
by the constitution or laws shall not have been filled by election or
appointment under the constitution or law creating or continuing such
office.” The 1977 amendment changed the language to provide that an
office shall be deemed vacant when created.
9
Section 418.302, Fla. Stat., authorizing the creation of mobile home
park recreation districts was enacted in 1983 as s. 35, Ch. 83-204, Laws
of Fla. Subsection (5) was a part of that original legislation and remains
substantially unchanged.
10
See Askew v. Schuster, 331 So. 2d 297 (Fla. 1976); Florida Association
of Counties, Inc. v. Department of Administration, Division of Retirement,
580 So. 2d 641 (Fla. 1st DCA 1991), approved, 595 So. 2d 42 (Fla. 1992)
(general rule is that in cases of conflicting statutory provisions, latter
expression will prevail over former).
11
A specific statute covering a particular subject area will control over
a statute covering the same and other subjects in more general terms.
See McKendry v. State, 641 So. 2d 45 (Fla. 1994); Gretz v. Florida
Unemployment Appeals Commission, 572 So. 2d 1384 (Fla. 1991) (specific
statute stating no fee for transcript preparation in unemployment
12
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compensation appeals controls over general statute requiring agency to
provide transcripts at actual cost); Barnett Banks, Inc. v. Department of
Revenue, 738 So. 2d 502 (Fla. 1st DCA 1999).
The language with which this opinion is concerned was added to s.
114.04, Fla. Stat., by amendment in 1977. See s. 1, Ch. 77-235, Laws of
Fla.
13
AGO 12-24 – August 1, 2012
RE: SPECIAL DISTRICTS – AIRPORTS – CONTRACTS –
COMMODITIES
WHETHER AIRPORT AUTHORITY IS “ELIGIBLE ENTITY”
FOR PURPOSES OF PURCHASING COMMODITIES OR
CONTRACTUAL SERVICES USING PURCHASING AGREEMENTS
OF STATE AND OTHER SPECIAL DISTRICTS
To: Mr. Paul R. Pizzo, Counsel for the Sebring Airport Authority
QUESTION:
Is the Sebring Airport Authority an “eligible user” under
section 287.056(1), Florida Statutes, authorized to purchase
commodities and contractual services from state purchasing
agreements and state term contracts as provided under section
287.057, Florida Statutes?
SUMMARY:
The Sebring Airport Authority is an “eligible user” under
section 287.056(1), Florida Statutes, and is authorized to
purchase commodities and contractual services from state
purchasing agreements and state term contracts as provided
under section 287.057, Florida Statutes.
The Sebring Airport Authority is a dependent special district of
the City of Sebring exercising “powers relating to aviation conferred
upon municipalities by general law, including the provisions of chapter
332, Florida Statutes, or the Federal Aviation Administration.”1 The
charter of the district is codified in Chapter 2005-300, Laws of Florida,
as amended by Chapter 2011-265, Laws of Florida. The Legislature has
constituted the authority as a public instrumentality and stated that
the exercise of the powers granted to the authority by its charter “shall
be deemed and held to be the performance of essential governmental
functions.”2
The Sebring Airport Authority is authorized to exercise its powers
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
12-24
and jurisdiction over the “Sebring Regional Airport and Industrial
Park”3 and the jurisdictional boundaries of the district are prescribed.4
Among the powers specifically granted to the airport authority is the
power to adopt bylaws for the regulation of affairs of the authority and
the conduct of its business5 and to acquire, lease, construct, reconstruct,
improve, extend, repair, maintain, and operate “any airport and
other facilities, including tire and automobile testing and racing, and
commercial and industrial facilities, which may be located on the
property of the authority.”6 The authority is empowered to issue bonds
to finance the acquisition, construction, reconstruction, improvement,
extension, enlargement, or equipment needed for airport facilities.7
Contractual authority is extended to the district as may be “necessary
or incidental to the performance of its duties and the execution of its
powers under this act[.]”8
Administrative agencies, such as the airport authority, are creatures
of statute and derive only the power specified therein.9 The powers of
administrative agencies are measured and limited by statutes or acts in
which such powers are expressly granted or implicitly conferred.10
In 2011, the Legislature amended the authority’s charter to specifically
authorize purchases as provided in section 189.4221, Florida Statutes:
The authority may purchase commodities or contractual
services from the purchasing agreements of other special
districts, municipalities, or counties as provided in section
189.4221, Florida Statutes.11
While acknowledging that the airport authority may now purchase
commodities or contractual services using the purchasing agreements
of other special districts, municipalities, or counties, you question
whether the authority may purchase commodities or contractual
services using state term contracts and purchasing agreements under
section 287.057, Florida Statutes. Legislative history relating to the
amendment of section 189.4221, Florida Statutes, states that “special
districts may purchase commodities and contractual services from the
DMS purchasing agreements and state term contracts”12 and you have
asked for reassurance that this is indeed the state of the law.
Section 287.056(1), Florida Statutes, provides that “[a]gencies shall,
and eligible users may, purchase commodities and contractual services
from purchasing agreements established and state term contracts
procured, pursuant to s. 287.057, by the department.” The statute
requires that each such agency agreement include
(a) A provision specifying a scope of work that clearly
establishes all tasks that the contractor is required to perform.
(b) A provision dividing the contract into quantifiable,
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measurable, and verifiable units of deliverables that must
be received and accepted in writing by the contract manager
before payment. Each deliverable must be directly related to
the scope of work and specify the required minimum level of
service to be performed and the criteria for evaluating the
successful completion of each deliverable.13
An “eligible user,” as that term is used in Part I, Chapter 287,
Florida Statutes, is “any person or entity authorized by the department
[Department of Management Services] pursuant to rule to purchase
from state term contracts or to use the online procurement system.”14
The Department of Management Services has promulgated Rule 60A1.005, Florida Administrative Code, which provides that “eligible users”
include “[a]ll governmental agencies, as defined in Section 163.3164,
F.S., which have a physical presence within the State of Florida[.]”
Listed among the governmental agencies in section 163.3164(21),
Florida Statutes, the “Community Planning Act,” is
(c) Any local government, as defined in this section, or any
department, commission, agency, or other instrumentality
thereof.
(d) Any school board or other special district, authority, or
governmental entity.
As a dependent special district of the City of Sebring, the Sebring
Airport Authority would fall within the scope of this definition and
would constitute an “eligible user” for purposes of section 287.056(1),
Florida Statutes.
Thus, as an administrative agency, the Sebring Airport Authority
is empowered to contract and authorized, in its discretion, to utilize
the provisions of section 287.056(1), Florida Statutes, to purchase from
state term contracts or to use the online procurement system. This is
the same conclusion presented to the Legislature by staff in 2009 when
considering SB 712 which, following adoption, became section 189.4221,
Florida Statutes.15
Further, nothing in the amendment of the Sebring Airport Authority’s
charter to allow the authority to take advantage of the provisions of
section 189.4221, Florida Statutes, or in that amendment’s legislative
history would suggest that the Legislature intended to restrict the
ability of the airport authority to utilize the provisions of section
287.056(1), Florida Statutes.16 Rather, the amendments made to the
airport authority’s charter in Chapter 2011-265, Laws of Florida,
appear to have been intended as an expansion of the authority’s power
to purchase commodities or contractual services.17
Thus, it is my opinion that the Sebring Airport Authority is an “eligible
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
12-24
user” under section 287.056(1), Florida Statutes, and is authorized to
purchase commodities and contractual services from state purchasing
agreements and state term contracts as provided under section 287.057,
Florida Statutes.18
1
See s. 17, Ch. 2005-300, Laws of Fla.
2
See s. 2, Ch. 2005-300, Laws of Fla.
3
See s. 3, Ch. 2005-300, Laws of Fla.
Section 3, Ch. 2005-300, Laws of Fla., sets forth the boundaries of the
Sebring Airport Authority.
4
5
Section 6(1), Ch. 2005-300, Laws of Fla.
Section 6(5), Ch. 2011-265, Laws of Fla., amending Ch. 2005-300, Laws
of Fla.
6
7
Section 6(6), Ch. 2005-300, Laws of Fla.
Section 6(10), supra. And see s. 8, Ch. 2005-300, Laws of Fla., requiring
certain contracts for services or purchases over $10,000 be awarded by
sealed bids with notice.
8
Grove Isle, Ltd. v. State Dept. of Environmental Regulation, 454 So. 2d
571 (Fla. 1st DCA 1984).
9
10
Coastal Petroleum Co. v. State Dept. of Environmental Protection, 649
So. 2d 930 (Fla. 1st DCA 1995), review denied, 660 So. 2d 712, appeal
after remand, 672 So. 2d 571, rehearing denied, review denied, Chiles v.
Coastal Petroleum Co., 678 So. 2d 1287; State Dept. of Environmental
Regulation v. Puckett Oil Co., Inc., 577 So. 2d 988 (Fla. 1st DCA 1991).
11
See s. 8(2), Ch. 2011-265, Laws of Fla.
See Florida Senate Bill Analysis and Fiscal Impact Statement on CS/
CS/SB 712, section II, “Agency Procurement of Personal Property and
Services – Chapter 287, F.S.,” dated April 21, 2009.
12
13
Section 287.056(1), Fla. Stat.
14
Section 287.012(11), Fla. Stat.; and see subsection (9) thereof for the
definition of “[d]epartment.”
See Florida Senate Bill Analysis and Fiscal Impact Statement on
CS/CS/SB 712, p. 2, “Agency Procurement of Personal Property and
Services – Chapter 287, F.S.,” dated April 21, 2009.
15
Cf. Mann v. Goodyear Tire and Rubber Co., 300 So. 2d 666 (Fla. 1974)
(repeal of statutes by implication is disfavored in the law, and that
16
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construction is favored which permits a separate field of operation for
each statute validly enacted on the same subject); Agency for Health Care
Administration v. In re Estate of Johnson, 743 So. 2d 83 (Fla. 3d DCA
1999).
17
See The Florida Senate website, CS/HB 1489: Sebring Airport
Authority, Highlands County, 2011 Legislative Session, for the description
of this local bill and providing that the bill “expands power to purchase
commodities or contractual services.”
However, the Sebring Airport Authority operates under a restriction,
imposed in s. 8, Ch. 2011-265, Laws of Fla., that requires certain contracts
involving expenditures of more than $10,000 be awarded by sealed bids
under the provisions set forth therein. The language of s. 8 provides that
the authority is authorized to reject all bids.
18
AGO 12-25 – August 7, 2012
EDUCATION – SCHOOLS – SCHOOL ACHIEVEMENT AWARDS
TEACHERS CONSIDERED SCHOOL STAFF PARTICIPATING
IN DETERMINATION OF USE OF SCHOOL ACHIEVEMENT
AWARDS
To: Mr. Usher L. Brown, Attorney for the School Board of Osceola
County
QUESTIONS:
1. Does section 1008.36, Florida Statutes, allow classroom
teachers to participate in the joint determination by school staff
and the school advisory council for the use of school recognition
funds?
2. If classroom teachers outnumber other school staff
engaged in the joint determination with the school advisory
council regarding the distribution and use of school recognition
funds, may the school develop a procedure by which the position
of the school staff is decided by a vote of all of the staff at the
school, including the teachers?
SUMMARY:
Absent a legislative intent limiting participation in the
process, classroom teachers would be considered part of the
school’s staff participating in the joint determination by
school staff and the school advisory council of the use of school
recognition funds. There is nothing in the legislation which
would appear to preclude the adoption of a procedure whereby
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12-25
all of the staff, including teachers, may vote on the matter.
As your questions are interrelated, they will be answered together.
You state that the School Board of Osceola County allows the schools
eligible for financial awards under section 1008.36, Florida Statutes,
flexibility to decide at the school level how the awards will be distributed
and that generally the individual school will make the determination in
conjunction with its school advisory council. In light of the provisions
in section 1008.36, Florida Statutes, stating that should the school’s
staff and the school advisory council fail to reach an agreement, the
awards are distributed equally to all classroom teachers currently
teaching in the school, you are concerned that teachers participating
in the determination could purposely thwart an agreement in order
to ensure such a distribution of the award. You, therefore, question
whether the Legislature intended that teachers could participate in the
joint decision-making process and, if so, whether there are limits on the
extent of their participation.
Section 1008.36, Florida Statutes, characterizes the “Florida
School Recognition Program” as a performance incentive program for
“outstanding faculty and staff” in highly productive schools.1 It was
created to provide financial awards to all public schools, including
charter schools, receiving a school grade of “A,” making excellent
progress, or demonstrating exemplary improvement due to innovation
and effort by improving at least one letter grade or by improving more
than one letter grade and sustaining the improvement the following
school year.2
Section 1008.36(4), Florida Statutes, provides:
All selected schools shall receive financial awards depending
on the availability of funds appropriated and the number and
size of schools selected to receive an award. Funds must be
distributed to the school’s fiscal agent and placed in the school’s
account and must be used for purposes listed in subsection (5)
as determined jointly by the school’s staff and school advisory
council. If school staff and the school advisory council cannot
reach agreement by February 1, the awards must be equally
distributed to all classroom teachers currently teaching in
the school. If a school selected to receive a school recognition
award is no longer in existence at the time the award is paid,
the district school superintendent shall distribute the funds to
teachers who taught at the school in the previous year in the
form of a bonus.3 (e.s.)
Thus, the Legislature has used the term “school’s staff” to identify the
employees of the school who participate in the determination of the use of
school recognition awards, without defining the term for purposes of the
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statute. Absent a statutory definition for the term “staff” or a legislative
intent that it be defined in another manner, the plain and ordinary
meaning of the term may be used.4 The term “staff” is commonly defined
as “the personnel responsible for the functioning of an institution or the
establishment or the carrying out of an assigned task under an overall
director or head[,]” such as “the teaching and administrative personnel
of an educational institution[.]”5 The Legislature’s use of the term
“school’s staff” is broad enough to encompass classroom teachers. For
instance, in other areas of the school code, “staff” has been used to refer
to instructional personnel.6 Moreover, in defining certain positions,
ranging from principals to educational support employees, the school
code characterizes such positions as “staff members.”7 Clearly, had the
Legislature wished to restrict or exclude certain members of the school’s
staff from the process of participating in the determination of the use
of financial awards, it could have easily stated its intent and done so.
While you have expressed concern that teachers could have a special
interest in making sure there was no agreement between the school’s
staff and the school advisory council so that school recognition awards
would be distributed only to teachers, there is nothing in section
1008.36, Florida Statutes, indicating that the participation of teachers
in the process is to be limited, nor may this office read such a limitation
where no such intent is present.8 Such matters should be addressed
to your legislative delegation for clarification. While this office has
recognized that school boards possess home rule powers, the exercise
of such authority must be consistent with the provisions of state law.9
Accordingly, any action taken by the school must be consistent with the
provisions of section 1008.36, Florida Statutes.
In light of the Legislature’s use of the broad term “school’s staff” in
delineating those who are to participate in the process and the absence
of any limitation on school employees included within that term, it is my
opinion that classroom teachers are included as part of the school’s staff
which are allowed to participate in the joint determination by school
staff and the school advisory council for the use of school recognition
funds. Nothing in the legislation would appear to preclude the adoption
of a procedure whereby all of the staff, including teachers, may vote on
the matter. Due to the concerns you have expressed, however, it may be
advisable to seek legislative clarification on this issue.
1
Section 1008.36(1), Fla. Stat.
2
See s. 1008.36(2) and (3), Fla. Stat.
Section 1008.36(5), Fla. Stat., states that school recognition awards
must be used for the following:
3
(a) Nonrecurring bonuses to the faculty and staff;
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(b) Nonrecurring expenditures for educational equipment
or materials to assist in maintaining and improving student
performance; or
(c) Temporary personnel for the school to assist in maintaining
and improving student performance.
See, e.g., Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000) (absent
statutory definition, words of common usage are construed in their plain
and ordinary sense and, if necessary, plain and ordinary meaning of the
word can be ascertained by reference to a dictionary); Rollins v. Pizzarelli,
761 So. 2d 294 (Fla. 2000); In re McCollam, 612 So. 2d 572 (Fla. 1993)
(when language of statute is clear and unambiguous and conveys a
clear meaning, statute must be given its plain and ordinary meaning);
Frankenmuth Mutual Insurance Company v. Magaha, 769 So. 2d 1012
(Fla. 2000) (in ascertaining the plain and ordinary meaning of a term,
a court may refer to a dictionary); Ops. Att’y Gen. Fla. 93-47 (1993) (in
construing statute which is clear and unambiguous, the plain meaning of
statute must first be considered) and 93-02 (1993) (it is presumed that the
Legislature knows the meaning of the words it uses and conveys its intent
by the use of specific terms, courts must apply the plain meaning of those
words if they are unambiguous).
4
Webster’s Third New International Dictionary (unabridged, 1981), p.
2219.
5
See s. 1012.01(2), Fla. Stat., defining “Instructional personnel” as
“any K-12 staff member whose function includes the provision of direct
instructional services to students.” The subsection further states that
“Classroom teachers” are “staff members assigned the professional
activity of instructing students in courses in classroom situations,”
and student personnel services, librarians/media specialists, and other
instructional staff (primary specialists, learning resource specialists,
instructional trainers, adjunct educators, and similar positions) as “staff
members.” (e.s.)
6
7
See s. 1012.01(3) and (6), Fla. Stat.
See, e.g., Ops. Att’y Gen. Fla. 82-80 (1982) (Attorney General is not free
to add words to a statute to support a conclusion that the plain wording of
the statute does not supply); 94-09 (1994); 87-43 (1987); 86-32 (1986); and
82-20 (1982). And see Chaffee v. Miami Transfer Company, Inc., 288 So.
2d 209 (Fla. 1974) (Attorney General’s Office has no authority to supply
additional words to or modify the meaning of a duly enacted statute).
8
See, e.g., Ops. Att’y Gen. Fla. 03-55 (2003) and 83-72 (1983); and see
W.E.R. v. School Board of Polk County, 749 So. 2d 540 (Fla. 2d DCA 2000)
(while school board has significant authority in matters not addressed
specifically by the Legislature, it is prohibited from promulgating rules at
variance with legislation).
9
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AGO 12-26 – August 7, 2012
SPECIAL DISTRICTS – PUBLIC FUNDS – LAKE ASBURY
MUNICIPAL SERVICE BENEFIT DISTRICT
AUTHORITY TO PURCHASE LAND WITH BOAT RAMP AND
ALLOW PUBLIC USE
To: Mr. Wayne E. Flowers, Attorney for the Lake Asbury Municipal
Services District
QUESTIONS:
1. May the Lake Asbury Municipal Services District acquire
parcels of land with boat ramps which, in addition to providing
access to lakes for district purposes, would provide access to lot
owners within the district?
2. If so, must the district allow the general public to use the
boat ramps?
SUMMARY:
1. The Lake Asbury Municipal Services District may acquire
parcels of land with boat ramps should the district’s governing
board determine that such acquisition primarily facilitates the
purpose of maintaining the lakes and dams under the district’s
jurisdiction.
2. While the incidental use of the boat ramps by the general
public would not raise concerns regarding the propriety of
acquiring and maintaining the property for district purposes,
restricting the use to lot owners within the district could be
seen as an expenditure of public funds in order to facilitate the
private use of the boat ramps for select individuals and thus
prohibited.
QUESTION 1.
Chapter 86-392, Laws of Florida (1986), creates the Lake Asbury
Municipal Services District (district).1 The purpose of the district is the
“continuing maintenance of the lakes and dams known as Lake Asbury,
South Lake Asbury, and Lake Ryan in Clay County, Florida.”2 Among
the powers granted to the district’s governing board is the authority to
“purchase, hold, lease, sell, or otherwise acquire and convey such real
and personal property and interest therein as may be necessary or proper
to carry out the purpose of this act” and to “acquire, construct, operate,
maintain, equip, improve, extend, and enlarge capital projects within or
without the district for the purposes of enabling the district to perform
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the specialized public functions or services as herein provided[.]”3 (e.s.)
The enabling legislation for the district grants authority to acquire
property and expend district funds for capital projects in carrying out
the purpose of the district, i.e., maintaining the lakes and dams under
the district’s jurisdiction. This limitation reiterates the long-standing
interpretation by Florida courts and this office that the exercise of
such powers is limited to carrying out expressly stated purposes. As
a statutorily created entity, the district has only such powers and
authority as have been expressly granted by law or may be necessarily
implied therefrom in order to carry out an expressly granted power.4
Any reasonable doubt as to the lawful existence of a particular power
sought to be exercised must be resolved against the exercise thereof.5
The implied powers accorded to administrative agencies must be
indispensable to powers expressly granted, that is, those powers that
are necessary or fairly or reasonably implied as an incident to those
powers.6
There is no doubt that the district has the authority to acquire property
such as parcels of land and expend funds for capital projects such as boat
ramps when such actions fulfill the district’s purpose of maintaining the
lakes and dams within the district. It would appear that access to the
lakes would be necessary to facilitate their maintenance and that of the
dams.7 Such a determination, however, must be made by the governing
body of the district and cannot be delegated to this office.8
QUESTION 2.
The issue of whether boat ramps acquired and maintained by the
district must be open to the general public or may be restricted to lot
owners within the district requires a discussion of the appropriate
expenditure of public funds.9 Article VII, section 10, Florida Constitution,
prohibits the state and its subdivisions from using their taxing power or
pledging public credit to aid any private person or entity. The purpose
of this constitutional provision is “to protect public funds and resources
from being exploited in assisting or promoting private ventures when the
public would be at most only incidentally benefited.”10 If the expenditure
primarily or substantially serves a public purpose, however, the fact
that the expenditure may also incidentally benefit private individuals
does not violate Article VII, section 10.11
In order to satisfy Article VII, section 10, Florida Constitution, the
expenditure of district funds must be for a public purpose. This office, in
determining whether public funds may be expended for improvements
to private property such as private roads, has considered whether the
governmental entity has a property right or interest in such property or
whether the public has an easement or right to use the property.
For example, in Attorney General Opinion 79-14, this office concluded
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that the expenditure of public funds by a municipality to repair or
maintain private streets in which the municipality has no property
rights or interest, and over which the public has no easement or right
of use, would appear to contravene the public purpose requirements of
Article VII, section 10, Florida Constitution.12 Similarly, this office in
Attorney General Opinion 85-101 concluded that public funds could not
be used to maintain a private bridge that was not open to or set apart
for the public and upon which the public had no right to travel.
In Northern Palm Beach County Water Control District v. State,13 the
Supreme Court of Florida concluded that Article VII, section 10, Florida
Constitution, did not prohibit the water control district from issuing
bonds to finance on-site road improvements in a district created for the
purpose of draining and reclaiming the land. In reaching its decision,
the Court relied on the fact that the district’s taxing power was not
involved, there was no pledge of the district’s credit, the Legislature
had set forth a declaration of the public purpose to be served, and the
district would retain ownership of the roadways in question.
The Court expressed concern that public access to the roads would be
limited: “[T]he fact that public access to the roads will be limited raises
a question of whether the stated public purposes are only incidental to
a primary private purpose . . . .”14 The fact that the district retained
ownership of the roadways in question, coupled with the legislative
declaration of a public purpose, “leads us to the conclusion that the
on-site road improvements serve a public purpose.”15 The Court
stated, however, that “[a] broad, general public purpose . . . will not
constitutionally sustain a project that in terms of direct, actual use, is
purely a private enterprise.”16
The district’s purchase of boat ramps and restriction of their use to only
those members of the public owning lots within the district could raise
concerns similar to those highlighted by the Court in Northern Palm
Beach County Water Control District, i.e., citing a broad general public
purpose of maintaining the dams and lakes may not constitutionally
sustain the use of the ramps by only those members of the public who
own lots within the district. Such a limited use only by the lot owners
would have the appearance of providing a privilege to specific private
individuals to the exclusion of the general public.17 The incidental use of
the boat ramps by the general public, however, would not raise similar
concerns, since there would be no specific private individuals who would
benefit from the expenditure of public funds.
Accordingly, it is my opinion that the district is authorized to
purchase property and expend district funds for capital projects to fulfill
the purposes of the district, i.e., the maintenance of lakes and dams
within the district and incidentally provide access to such property to
the general public.
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1
Section 1, Ch. 86-392, Laws of Fla. (1986).
2
Section 2(1), Ch. 86-392, Laws of Fla. (1986).
3
Section 2(4), Ch. 86-392, Laws of Fla. (1986).
12-26
See Halifax Drainage District of Volusia County v. State, 185 So. 123,
129 (Fla. 1938); Ops. Att’y Gen. Fla. 96-90 (1996) and 89-42 (1989).
4
See Halifax Drainage District at 129; State ex rel. Greenberg v. Florida
State Board of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), cert.
dismissed, 300 So. 2d 900 (Fla. 1974); City of Cape Coral v. GAC Utilities,
Inc., of Florida, 281 So. 2d 493 (Fla. 1973). And see, e.g., Ops. Att’y Gen.
Fla. 02-30 (2002) and 04-48 (2004).
5
See, e.g., Gardinier, Inc. v. Florida Department of Pollution Control,
300 So. 2d 75, 76 (Fla. 1st DCA 1974); Williams v. Florida Real Estate
Commission, 232 So. 2d 239, 240 (Fla. 4th DCA 1970).
6
You state that the district and its contractors use the boat ramps
to access the lakes to perform certain functions, such as, aquatic weed
control, dam and water control structure inspection and maintenance,
and water quality testing.
7
8
See, e.g., Ops. Att’y Gen. Fla. 86-35 (1986) and 90-74 (1990).
While the question of whether the district may acquire the boat ramps
and prohibit their use by any members of the public has not been raised,
such a prohibition would not alter the conclusion that the district may
obtain the subject property upon an appropriate determination that such
action fulfills a district purpose.
9
10
Bannon v. Port of Palm Beach District, 246 So. 2d 737, 741 (Fla. 1971).
See, e.g., State v. Housing Finance Authority of Polk County, 376 So. 2d
1158, 1160 (Fla. 1979). If the county’s taxing power or pledge of credit is
involved, the improvements must serve a paramount public purpose. See
Orange County Industrial Development Authority v. State, 427 So. 2d 174
(Fla. 1983). If, however, neither the taxing power nor a pledge of credit is
involved, then it is enough to show only that a public purpose is involved.
Linscott v. Orange County Industrial Development Authority, 443 So. 2d
97 (Fla. 1983).
11
And see Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966);
Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963); Op. Att’y
Gen. Fla. 73-222 (1973) (expenditure of county funds to provide minor
work or repair on private roads). Cf. Brumby v. City of Clearwater, 149 So.
203 (Fla. 1933), in which the Supreme Court of Florida voided a contract
between a city and a private individual whereby the city financed the
dredging of a channel leading to the private individual’s place of business,
because “the contract clearly required the appropriation of public money
12
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for the individual benefit of the appellant[.]”
13
604 So. 2d 440 (Fla. 1992).
14
Id. at 443.
15
Id.
16
Id., quoting, Orange County Industrial Development Authority v. State,
427 So. 2d 174, 179 (Fla. 1983).
Cf. City of Maitland v. Orlando Bassmasters Association of Orlando,
Florida, Inc., 431 So. 2d 178 (Fla. 5th DCA 1983), in which the district
court found no rational basis in a municipal ordinance which prohibited
nonresidents of the city from obtaining parking permits for boat trailer
spaces in a municipal lakefront park; rather, the only basis for the
ordinance was the fact that residents desired an assured parking space
near the municipal boat ramp. See also Op. Att’y Gen. Fla. 76-124 (1976)
(while municipality may charge a fee for individual use of a municipally
owned park or other municipal recreational facility which is reasonably
related to the expense incurred in operating and maintaining the park
or facility, the municipality may not charge a higher fee to nonresidents
than residents unless all relevant economic factors establish a rational
foundation for such differentiation).
17
AGO 12-27 – August 7, 2012
BUILDING CONSTRUCTION STANDARDS – ARCHITECTS –
ENGINEERS – PRIVATE PROVIDERS – LICENSURE –
CERTIFICATION – BUILDING PLANS – INSPECTION
WHETHER BUSINESS ENTITY CAN BE “PRIVATE PROVIDER”
FOR PURPOSES OF ALTERNATIVE PLANS REVIEW AND
INSPECTION; QUALIFICATIONS FOR PRIVATE PROVIDERS
To: Mr. John C. Randolph, Attorney for the Town of Palm Beach
QUESTIONS:
1. Pursuant to section 553.791, Florida Statutes, can a
company be considered a “private provider” if it hires an
architect or engineer to provide inspection and plan review
services?
2. Does a company that employs an architect or engineer and
enters into a contract with an owner to provide inspection or
plan review services where that architect or engineer will be the
private provider meet the requirements of the private provider
statute?
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3. What is acceptable proof that the architect or engineer
is a bona fide employee of the company within the meaning of
section 553.791, Florida Statutes?
SUMMARY:
1. Pursuant to section 553.791, Florida Statutes, a business
entity such as a corporation, partnership, or firm may be
considered a “private provider” only if it is certified or
licensed pursuant to Chapters 471 or 481, Florida Statutes.
Thus, a company that hires an architect or engineer, but is not
otherwise certified or licensed pursuant to Chapters 471 and/
or 481, Florida Statutes, is not a private provider. Further, a
duly authorized representative of a private provider must be
licensed or certified as an engineer or architect and must act as
the agent for an individual or business entity that satisfies the
statutory requirements for a “private provider.”
2. A company that employs an architect or engineer and
enters into a contract with an owner to provide inspection or
plan review services where that architect or engineer will be
the private provider may meet the requirements of the private
provider statute by acting as a “private provider’s firm” if it
otherwise satisfies the requirements of section 553.791, Florida
Statutes.
3. Section 553.791, Florida Statutes, authorizes a local
government to develop a registration system for private providers
and duly authorized representatives which requires proof of
licensure as an engineer or architect and proof of insurance. The
statue also requires that “duly authorized representatives” be
entitled to receive unemployment compensation benefits under
Chapter 443, Florida Statutes, and the criteria for employment
set forth in that chapter may be reviewed.
According to your letter, a company has represented itself as a private
provider of architectural or engineering services pursuant to section
553.791, Florida Statutes, but its officers are neither licensed engineers
nor architects. Rather, the company has used an architect it has hired
to sign and seal plans. Your client, the Director of Planning, Zoning
and Building for the Town of Palm Beach, questions the circumstances
under which a company may be considered a private provider.
QUESTION 1.
Your question requires consideration of section 553.791, Florida
Statutes, which provides alternatives for building plans review and
inspection. The statute authorizes the fee owner of a building or
structure or the fee owner’s contractor1 to use a private provider to review
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plans and provide building code inspection services as an alternative to
such activities being performed by a local building official.2 The fee
owner may elect to use the private provider for plans review or required
building inspections or both of these services. All such services must be
memorialized in a written contract between the private provider, or the
private provider’s firm, and the fee owner.3
The statute defines a “[p]rivate provider” for purposes of section
553.791, Florida Statutes, as:
a person licensed as an engineer under chapter 471 or as an
architect under chapter 481. For purposes of performing
inspections under this section for additions and alterations that
are limited to 1,000 square feet or less to residential buildings,
the term “private provider” also includes a person who holds a
standard certificate under part XII of chapter 468.4
Further, a private provider and any duly authorized representative5 of
that provider “may only perform building code inspection services that are
within the disciplines covered by that person’s licensure or certification
under chapter 468, chapter 471, or chapter 481”6 and must maintain
insurance for professional liability covering all services performed as a
private provider.7 When performing building code inspection services,
a private provider is subject to the disciplinary guidelines of the
applicable professional board with licensing or certification jurisdiction
over that profession.8 Finally, the statutes contain a conflict provision
prohibiting a private provider from providing building code inspection
services on any building designed or constructed by the private provider
or the private provider’s firm.9
The statute does not provide a definition of “person,” but a general
definition of that term is contained in section 1.01, Florida Statutes,
and includes “individuals . . . firms, associations, joint adventures,
partnerships, . . . corporations, and all other groups or combinations.”
The term “person” at common law and apart from any statutory
enactment limiting its meaning includes both natural and artificial
persons.10
Section 553.791(2), Florida Statutes, directs that “all such services”
provided to a fee owner or the fee owner’s contractor shall be evidenced
by a written contract “between the private provider, or the private
provider’s firm” and the fee owner. The definition of a “private provider”
appears to accommodate both individuals and corporations or business
partnerships.
You have suggested that “a company or other business entity cannot
meet the licensure requirements of Chapters 471 and 481, Florida
Statutes, and therefore cannot meet the statutory definition of a Private
Provider.” However, both Chapters 471 and 481, Florida Statutes,
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appear to recognize that licensed engineers and architects may be
businesses that practice these professions in Florida as well as the
individuals who are licensed to practice these professions.
Chapter 471, Florida Statutes, regulates the practice of engineering
in Florida.11 Section 471.005(8), Florida Statutes, defining “[l]icense” for
purposes of that chapter defines the term as “the licensing of engineers
or certification of businesses to practice engineering in this state.”12 (e.s.)
An “[e]ngineer” is “a person who is licensed to engage in the practice
of engineering” and includes the terms “professional engineer” and
“licensed engineer[.]”13 Finally, a “[c]ertificate of authorization” is itself
defined as “a license to practice engineering issued . . . to a corporation
or partnership.”14 Section 471.003, Florida Statutes, sets forth the
qualifications for practicing engineering and includes exemptions
from licensure requirements. Among those who are not required to be
licensed under the provisions of Chapter 471, Florida Statutes, as a
licensed engineer are “[e]mployees of a firm, corporation, or partnership
who are the subordinates of a person in responsible charge, licensed
under this chapter.”15 Thus, Chapter 471, Florida Statutes, authorizes
both natural persons and businesses to be “licensed” within the scope of
licensure as an engineer or engineering practice.
Chapter 481, Florida Statutes, provides Florida’s statutory regulations
on the practice of architecture. An “[a]rchitect” or “registered architect”
is defined as “a natural person who is licensed under this part to engage
in the practice of architecture.” While it is clear that an architect may
only be a natural person, a business entity may be certified to practice the
profession of architecture. While the statutes provide for a “certificate
of registration,”16 that is, a license issued “to a natural person” to engage
in the practice of architecture, the statutes also provides a “certificate of
authorization”17 which is issued by the department “to a corporation or
partnership to practice architecture[.]”
The practice of architecture by licensees through a corporation, limited
liability company, or partnership offering architectural services to the
public, or by a corporation, limited liability company, or partnership
offering architectural services to the public through licensees under this
part as agents, employees, officers, or partners, is specifically authorized
subject to the provisions of section 481.219, Florida Statutes.18 As
provided in this statute, the Board of Architecture and Interior Design
shall certify an applicant as qualified for a “certificate of authorization”
to offer architectural services provided that:
(a) One or more of the principal officers of the corporation
or limited liability company, or one or more partners of the
partnership, and all personnel of the corporation, limited
liability company, or partnership who act in its behalf in this
state as architects, are registered as provided by this part; or
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(b) One or more of the principal officers of the corporation or one
or more partners of the partnership, and all personnel of the
corporation, limited liability company, or partnership who act
in its behalf in this state as interior designers, are registered as
provided by this part.
Any applicant who has been certified by the board as qualified and who
has paid the statutory fee must be issued a certificate of authorization.19
A certificate of authorization is required for a corporation, limited liability
company, partnership, or person practicing under a fictitious name, who
offers architectural services to the public jointly or separately.20
Thus, it does not appear to be the case that only natural persons may
act as private providers as only natural persons are capable of licensure
or certification.21 However, while it appears that business entities
may come within the scope of section 553.791, Florida Statutes, not all
business entities may qualify as private providers. A private provider
must be an individual or business entity that is certified or licensed
to provide engineering or architectural services or a duly authorized
representative of that individual or entity and must maintain
professional liability insurance. Further, as provided in section
553.791(1)(e), Florida Statutes, a “[d]uly authorized representative” is
an agent of the private provider:
“Duly authorized representative” means an agent of the private
provider identified in the permit application who reviews plans
or performs inspections as provided by this section and who is
licensed as an engineer under chapter 471 or as an architect
under chapter 481 or who holds a standard certificate under
part XII of chapter 468.
The duly authorized representative is the agent of the private provider
and a private provider must come within the statutory definition in
section 553.791(1)(I), Florida Statutes, that is, licensure or certification
pursuant to Chapters 471 or 481, Florida Statutes, is required. The
statute also requires that any duly authorized representative who is
sent to a building site to perform the required inspections must be
“an employee of the private provider entitled to receive reemployment
assistance benefits under chapter 443.”22
Section 553.791(2), Florida Statutes, authorizes the fee owner of a
building or structure, or his or her contractor, to choose to use a private
provider for building code inspections services. All such services shall
be rendered subject to a written contract between the private provider
or the private provider’s firm and the fee owner. The definition of a
“[p]rivate provider” does not distinguish between natural and artificial
persons and would, therefore, appear to include business entities
as well as licensed individuals. Both Chapters 471 and 481, Florida
Statutes, contemplate the licensure or certification of individuals as
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well as business entities such as partnerships, corporations, or firms.
However, as discussed herein, a private provider must be licensed and
must maintain professional liability insurance.
In sum, it is my opinion that pursuant to section 553.791, Florida
Statutes, a business entity such as a corporation, partnership, or firm
may be considered a “private provider” only if it is certified or licensed
pursuant to Chapters 471 or 481, Florida Statutes. Thus, a company
that hires an architect or engineer, but is not otherwise certified or
licensed pursuant to Chapters 471 and/or 481, Florida Statutes, is not a
private provider. Further, a duly authorized representative of a private
provider must be licensed or certified as an engineer or architect and
must act as the agent for an individual or business entity that satisfies
the statutory requirements for a “private provider.”
QUESTION 2.
You also ask whether a company may come within the provisions of
section 553.791, Florida Statutes, if the company employs an architect
or engineer and enters into a contract with a property owner to provide
inspection or plan review services in situations where the architect or
engineer will be the private provider of building code inspection services.
Section 553.791, Florida Statutes, refers to a “private provider’s firm”
in several places but provides no definition. The statute requires that
building code inspection services be the subject of a written contract
between the “private provider, or the private provider’s firm, and the fee
owner or the fee owner’s contractor.”23 The statute prohibits a private
provider from providing building code inspection services “upon any
building designed or constructed by the private provider or the private
provider’s firm.”24 And finally, the statute requires that a fee owner
using a private provider for building code inspection services must
provide notice to the local building official on a form to be adopted by
the Florida Building Commission. This notice must include particular
information including:
The name, firm, address, telephone number, and facsimile
number of each private provider who is performing or will
perform such services, his or her professional license or
certification number, qualification statements or resumes, and,
if required by the local building official, a certificate of insurance
demonstrating that professional liability insurance coverage is
in place for the private provider’s firm, the private provider, and
any duly authorized representative in the amounts required by
this section.25
Thus, the “private provider’s firm” must be capable of securing
professional liability insurance coverage.
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In light of the Legislature’s use of the phrase “private provider’s firm,”
it would appear that a company that employs an architect or engineer
and enters into a contract with an owner to provide inspection or plan
review services where that architect or engineer will be the private
provider may meet the requirements of the private provider statute so
long as it is capable of otherwise meeting the statutory requirements.
QUESTION 3.
You have asked what may constitute acceptable proof that an
architect or engineer is a bona fide employee of the private provider
within the meaning of section 553.791, Florida Statutes.
Section 553.791(15), Florida Statutes, provides that:
(a) A local enforcement agency, local building official, or
local government may not adopt or enforce any laws, rules,
procedures, policies, qualifications, or standards more stringent
than those prescribed by this section.
(b) A local enforcement agency, local building official, or local
government may establish, for private providers and duly
authorized representatives working within that jurisdiction,
a system of registration to verify compliance with the
licensure requirements of paragraph (1)(I) and the insurance
requirements of subsection (16).
(c) This section does not limit the authority of the local
building official to issue a stop work order for a building project
or any portion of the project, as provided by law, if the official
determines that a condition on the building site constitutes an
immediate threat to public safety and welfare.
The statute authorizes the development at the local level of a
“system of registration to verify compliance with the licensure
requirements . . . and insurance requirements[.]” The statute precludes
local officials from adopting or enforcing any qualifications or standards
more stringent than those established by the statute.26
Thus, it would appear that proof of licensure of the individual or
the certification of the business entity (or both in the case of a “duly
authorized representative”) as an engineer or architect may be required
pursuant to a duly adopted registration system under section 553.791,
Florida Statutes, along with proof of insurance in the amounts specified
in subsection (16):
A private provider may perform building code inspection
services on a building project under this section only if the
private provider maintains insurance for professional liability
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covering all services performed as a private provider. Such
insurance shall have minimum policy limits of $1 million per
occurrence and $2 million in the aggregate for any project
with a construction cost of $5 million or less and $2 million
per occurrence and $4 million in the aggregate for any project
with a construction cost of over $5 million. Nothing in this
section limits the ability of a fee owner to require additional
insurance or higher policy limits. For these purposes, the term
“construction cost” means the total cost of building construction
as stated in the building permit application. If the private
provider chooses to secure claims made coverage to fulfill this
requirement, the private provider must also maintain coverage
for a minimum of 5 years subsequent to the performance of
building code inspection services. The insurance required under
this subsection shall be written only by insurers authorized to
do business in this state with a minimum A.M. Best’s rating
of A. Before providing building code inspection services within
a local building official’s jurisdiction, a private provider must
provide to the local building official a certificate of insurance
evidencing that the coverages required under this subsection are
in force. (e.s.)
In addition, the statute requires that a “duly authorized
representative” of a private provider “must be an employee of the
private provider entitled to receive reemployment assistance benefits
under chapter 443.”27 It would appear to be appropriate for a local
government to determine compliance with this statutory requirement.
The statute makes private providers subject to the disciplinary
guidelines of the applicable professional boards with jurisdiction
over their license or certification under Chapters 471 or 481, Florida
Statutes. Complaint processing, investigation, and discipline that may
arise out of a private provider’s performance of building code inspection
services are to be conducted by the applicable professional board.28 Local
governments and building officials are provided immunity from liability
“to any person or party for any action or inaction” by a fee owner of a
building or by a private provider or its duly authorized representative in
connection with the building code inspection services provided pursuant
to the statute.
Thus, it is my opinion that section 553.791, Florida Statutes,
authorizes a local government to develop a registration system for
private providers and duly authorized representatives which requires
proof of licensure of the individual or the certification of the business
entity (or both in the case of a “duly authorized representative”) as an
engineer or architect and proof of insurance in the amounts specified
in that statute. Appropriate inquiries may also be made to determine
whether a “duly authorized representative” is an employee of the
private provider entitled to receive reemployment assistance benefits
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under Chapter 443, Florida Statutes.
The statute requires that the fee owner’s contractor have written
authorization from the fee owner in order to act. See s. 553.791(2), Fla.
Stat.
1
See Florida House of Representatives Committee on Local Government
& Veterans Affairs, Staff Analysis of HB 1307, dated February 5, 2002
(HB 1307 created s. 553.791, Fla. Stat.)
2
3
Section 553.791(2), Fla. Stat.
Part XII, Ch. 468, Fla. Stat., regulates the practice of building code
administration and inspection in Florida. See s. 468.601, Fla. Stat. You
have not indicated that you are concerned with private providers certified
pursuant to Part XII, Ch. 468, Fla. Stat.
4
The term “[d]uly authorized representative” is defined in
s. 553.791(1)(e), Fla. Stat., to mean “an agent of the private provider
identified in the permit application who reviews plans or performs
inspections as provided by this section and who is licensed as an engineer
under chapter 471 or as an architect under chapter 481 or who holds a
standard certificate under part XII of chapter 468.”
5
6
Section 553.791(3), Fla. Stat.
7
Section 553.791(16), Fla. Stat.
8
Section 553.791(17), Fla. Stat.
9
Id. n.6.
See Op. Atty Gen. Fla. 85-99 (1985) citing City of Grand Rapids v.
Harper, 188 N.W.2d 668, 671 (Ct. App. Mich. 1971); 18 Am. Jur. 2d
Corporations s. 20 (stating that persons are divided by law into persons
natural and persons artificial). Cf. City of St. Petersburg v. Carter, 39 So.
2d 804 (Fla. 1949) (definition of term “persons” dependent upon purpose
of subject enactment, administrative construction of it, other legislative
enactments, and attendant circumstances); Village of El Portal v. City
of Miami Shores, 362 So. 2d 275 (Fla. 1978) (meaning of term “persons”
solely one of legislative intent and must be resolved by taking into account
totality of circumstances surrounding statute’s enactment).
10
See s. 471.001, Fla. Stat., for the Legislature’s statement of purpose for
the chapter.
11
And see s. 471.005(3), Fla. Stat., providing that a “[c]ertificate of
authorization” means “a license to practice engineering issued by the
management corporation [Florida Engineers Management Corporation]
to a corporation or partnership.”
12
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13
Section 471.005(5), Fla. Stat.
14
Section 471.005(3), Fla. Stat.
15
Section 471.003(2)(e), Fla. Stat.
16
Section 481.203(4), Fla. Stat.
17
Section 481.203(5), Fla. Stat.
12-28
Cf. District Board of Trustees v. Morgan, 890 So. 2d 1155 (Fla. 5th DCA
2004) (the purpose of s. 481.219, Fla. Stat., is to avoid a misrepresentation
regarding the composition of architectural business entities that enter
contracts for work on Florida projects; s. 481.219, Fla. Stat., is not
intended by the Legislature to assure that all architects working in
Florida are licensed).
18
19
Section 481.219(6), Fla. Stat.
20
Section 481.219(2), Fla. Stat.
I note that section 553.791, Fla. Stat., uses the term “individual,” as
distinguished from “person,” where the intent seems to be to identify a
natural person. See s. 553.791(1)(g), Fla. Stat., identifying the “[l]ocal
building official” as an “individual.”
21
Section 553.791(8), Fla. Stat. And see ss. 443.036 and 443.1216,
Fla. Stat., delineating “employment” subject to Ch. 443, Fla. Stat., the
“Unemployment Compensation Law.”
22
23
Section 553.791(2), Fla. Stat.
24
Id. at subsection (3).
25
Section 553.791(4)(b), Fla. Stat.
It is the rule that a legislative direction as to how a thing shall be done
is, in effect, a prohibition against its being done in any other way. Alsop
v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle Hotel, 56
So. 2d 341, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815, 817 (Fla.
1976).
26
27
Section 553.791(8), Fla. Stat.
28
See s. 553.791(17), Fla. Stat.
AGO 12-28 – August 8, 2012
DUAL OFFICE-HOLDING – COUNTIES – EMERGENCY
MANAGEMENT – MUNICIPALITIES – CITY COUNCIL
267
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WHETHER COUNTY DIRECTOR OF COUNTY EMERGENCY
MANAGEMENT IS OFFICER OR EMPLOYEE
To: Ms. L. Rebecca Behl-Hill, Assistant County Attorney, Brevard
County
QUESTIONS:
1. May an elected member of a local city council simultaneously
hold the position of County Director of the Emergency
Operations Center without violating Florida’s constitutional
dual office-holding prohibition?
2. If the answer to Question One is that a violation will occur,
can the Director designate someone else to vote in her place
in an emergency; therefore removing any concern over the
decision-making authority granted to the Director as a member
of the policy group during a declared emergency?
SUMMARY:
1. The position of the Brevard County Director of the
Emergency Operations Center is an office, not an employment,
and is subject to the dual office-holding prohibition contained
in Article II, section 5(a) of the Florida Constitution. Thus, a
city councilwoman may not simultaneously hold that office
and the office of county Director of the Emergency Operations
Center without violating the constitutional dual office-holding
prohibition.
2. A violation of the prohibition set forth in Article II, section
5(a), Florida Constitution, cannot be avoided by the abstention
or recusal from certain votes by the director of a county
emergency operations center.
QUESTION 1.
According to your letter, a Brevard County employee was recently
appointed by the county manager to act as Interim Director of the
Emergency Operations Center. This employee is also an elected
member of a local city council. You recognize that the position of city
councilwoman is a public office. However, you suggest that the Director
of the Emergency Operations Center may be a county employee rather
than an officer based on the duties of that position under section 252.38,
Florida Statutes.
The constitutional dual office-holding provision is contained in Article
II, section 5(a) of the Florida Constitution, and provides in part that:
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No person shall hold at the same time more than one office
under the government of the state and the counties and
municipalities therein, except that a notary public or military
officer may hold another office, and any officer may be a member
of a constitution revision commission, taxation and budget
reform commission, constitutional convention, or statutory
body having only advisory powers.
This provision of the constitution prohibits a person from
simultaneously holding more than one “office” under the government
of the state, counties, and municipalities. It is not necessary that the
two offices be within the same governmental unit. Thus, for example, a
municipal officer is precluded from holding not only another municipal
office, but also a state or county office.
The prohibition applies to both elected and appointed offices.1 There
is no definition of the term “office” in the Constitution, although the
Supreme Court of Florida has stated that the term “implies a delegation
of a portion of the sovereign power to, and the possession of it by, the
person filling the office . . . .”2 Within the scope of the term are the
concepts of tenure, duration, and duties in exercising some portion of
the sovereign power, conferred or defined by law rather than by contract.
By contrast, an “employment” does not “comprehend a delegation of any
part of the sovereign power.”3
Section 252.38, Florida Statutes, makes provision for the emergency
management powers of political subdivisions. With regard to counties,
the statute recognizes that “[s]afeguarding the life and property of
its citizens is an innate responsibility of the governing body of each
political subdivision of the state.”4 To accomplish this responsibility,
the Legislature has authorized counties to establish and maintain
emergency management agencies. As defined in section 252.34(5),
Florida Statutes, “[l]ocal emergency management agency” means “an
organization created in accordance with the provisions of ss. 252.31 252.90 to discharge the emergency management responsibilities and
functions of a political subdivision.”
Each agency is required by statute to have a director, appointed by
the board of county commissioners or the chief administrative officer
of the county and serving at the pleasure of the appointing officer
or officers.5 The statute provides an ex officio exception for county
constitutional officers to serve as the county emergency management
director and an employee of a county constitutional officer also may
do so.6 Section 252.38(1)(b), Florida Statutes, provides that “[e]ach
director has direct responsibility for the organization, administration,
and operation of the county emergency management agency” and acts
as liaison to the Florida Division of Emergency Management and to
other local emergency management agencies and organizations.
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As discussed above, the county emergency management director
is statutorily charged with discharging the emergency management
responsibilities and functions of the county. Section 252.38(3), Florida
Statutes, outlines the emergency management powers of political
subdivisions. Among the powers political subdivisions may exercise in
emergencies is the power:
1. To appropriate and expend funds; make contracts;
obtain and distribute equipment, materials, and supplies for
emergency management purposes; provide for the health and
safety of persons and property, including emergency assistance
to the victims of any emergency; and direct and coordinate the
development of emergency management plans and programs
in accordance with the policies and plans set by the federal and
state emergency management agencies.
2. To appoint, employ, remove, or provide, with or without
compensation, coordinators, rescue teams, fire and police
personnel, and other emergency management workers.
*
*
*
4. To assign and make available for duty the offices and
agencies of the political subdivision, including the employees,
property, or equipment thereof relating to firefighting,
engineering, rescue, health, medical and related services, police,
transportation, construction, and similar items or services for
emergency operation purposes, as the primary emergency
management forces of the political subdivision for employment
within or outside the political limits of the subdivision.7
In addition, the political subdivision has the authority to waive the
procedures and formalities otherwise required of political subdivisions
for:
a. Performance of public work and taking whatever prudent
action is necessary to ensure the health, safety, and welfare of
the community.
b.
Entering into contracts.
c.
Incurring obligations.
d.
Employment of permanent and temporary workers.
e.
Utilization of volunteer workers.
f.
Rental of equipment.
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g. Acquisition and distribution, with or without compensation,
of supplies, materials, and facilities.
h.
Appropriation and expenditure of public funds.8
As the officer charged with discharging the emergency management
responsibilities and functions of the county, the county emergency
management director appears to have been delegated a substantial
portion of the sovereign power of the county.
Based on the statutory enumeration of powers set forth in section
252.38, Florida Statutes, and exercisable by the director of the county
emergency management agency on behalf of the county, it is my opinion
that the director of a county emergency management agency is an officer
rather than an employee. The county emergency management director
acts in the service of the government and derives his or her position
from a duly and legally authorized appointment. The duties of the
emergency management director are continuous in nature and defined
by rules prescribed by government and not by contract. The director of
the county emergency management exercises important public powers,
trusts, and duties, as part of the administration of the government.
In sum, it is my opinion that the position of the Brevard County
Director of the Emergency Operations Center is an office, not an
employment, and is subject to the dual office-holding prohibition
contained in Article II, section 5(a) of the Florida Constitution. Thus,
a city councilwoman may not simultaneously hold that office and the
office of Director of the Emergency Operations Center without violating
the constitutional dual office-holding prohibition.
QUESTION 2.
You also ask whether the constitutional prohibition can be avoided if
the director of the emergency operations center designates an alternate
to vote in her place during an emergency.
The dual office-holding prohibition is a limitation on the holding
of two offices, it is not a conflict provision which could be avoided by
abstention or recusal from a particular vote as is contemplated by section
112.3143(3), Florida Statutes. The dual office-holding prohibition
cannot be overcome by delegating some of the duties of a second office to
another while continuing in that office.
I would note that the Florida Supreme Court in Holley v. Adams,9
a 1970 decision, established the general rule that “[t]he acceptance
of an incompatible office by one already holding office operates as a
resignation of the first.”10 Thus, an officer accepting another office in
violation of the dual office-holding prohibition may create a vacancy in
the first office.
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In sum, it is my opinion that a violation of the prohibition set forth in
Article II, section 5(a), Florida Constitution, cannot be avoided by the
delegation of certain voting rights by the director of a county emergency
operations center.
See State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919) (“An
employment does not authorize the exercise in one’s own right of any
sovereign power or any prescribed independent authority of a governmental
nature; and this constitutes perhaps the most decisive difference between
an employment and an office, and between an employe[e] and an officer.”).
And see, e.g., Ops. Att’y Gen. Fla. 96-91 (1996) (special master of county
value adjustment board an officer); 84-93 (1984) (legal counsel to local
government code enforcement board an employee); and 73-332 (1973)
(attorney for county commission an employee).
1
2
Holloway v. Sheats, id.
See Ops. Att’y Gen. Fla. 05-15 (2005), 96-24 (1996), 80-97 (1980), and
69-2 (1969).
3
4
Section 252.38, Fla. Stat.
5
Section 252.38(1)(b), Fla. Stat.
6
Id.
7
Section 252.38(3)(a)1. - 4., Fla. Stat.
8
Section 252.38(3)(a)5., Fla. Stat.
9
238 So. 2d 401 (Fla. 1970).
10
Id. at 407
AGO 12-29 – September 18, 2012
FIREARMS – WEAPONS – CRIMES – DOMESTIC VIOLENCE
PLEA OF NOLO CONTENDERE WITH ADJUDICATION
WITHHELD AS CONVICTION FOR BARRING POSSESSION OF A
FIREARM
To: Major General Emmett R. Titshaw, Jr., Florida National Guard
QUESTION:
Does a plea of nolo contendere to a misdemeanor charge of
domestic violence with adjudication of guilt withheld and a
term of probation imposed constitute a conviction for purposes
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of barring an individual from possessing a firearm or weapon
pursuant to 18 United States Code section 922(g)(9)?
SUMMARY:
An individual who has entered a plea of nolo contendere to a
misdemeanor charge for domestic violence, with adjudication
of guilt withheld and a term of probation imposed, would not be
considered “convicted” for the purpose of permanently barring
such individual from possessing a firearm pursuant to 18 United
States Code section 922(g)(9).
You indicate that under 18 United States Code section 922(g)(9),
the “Lautenberg Amendment,” an individual who is “convicted” of a
misdemeanor crime involving domestic violence is precluded from
carrying or possessing a firearm.1 Your letter states that in determining
whether a “conviction” is a qualifying Lautenberg conviction, the
controlling law is that of the state in which the proceedings for the
domestic violence charge were held.
The pertinent provision in 18 United States Code section 922, states
that it is unlawful for any person “who has been convicted in any court
of a misdemeanor crime of domestic violence, to ship or transport in
interstate or foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce.”2
(e.s.) As you have noted, and the federal act appears to indicate, the
determination of whether an individual has been “convicted” of a
misdemeanor crime of domestic violence for purposes of the act is made
by the laws of the jurisdiction in which the proceedings were held.3
In Florida, the term “conviction” is generally recognized as a
“determination of guilt by verdict of the jury or by plea of guilty, and
does not require adjudication by the court.”4 An adjudication of guilt
following a plea of no contest also qualifies as a “conviction.”5 A no
contest plea followed by withholding of adjudication of guilt, however, is
not generally considered a conviction. In Garron v. State,6 the Supreme
Court of Florida concluded there was no conviction or guilty plea where
a defendant had pled no contest and adjudication of guilt was withheld,
stating:
A nolo plea means “no contest,” not “I confess.” It simply means
that the defendant, for whatever reason, chooses not to contest
the charge. He does not plead either guilty or not guilty, and it
does not function as such a plea.7
It has been recognized that the term “conviction” used in Florida
law is “a ‘chameleon-like’ term that has drawn its meaning from the
particular statutory context in which the term is used.”8 (e.s.) As a result,
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there have been departures from the general rule of no conviction when
there is a nolo contendere plea with adjudication of guilt withheld. For
instance, in Montgomery v. State,9 the Supreme Court of Florida found
that an individual is considered “convicted” when he or she enters a nolo
contendere plea and adjudication of guilt is withheld, in the context of
determining whether an individual has a prior conviction for sentencing
guidelines purposes. For sentencing purposes, the Montgomery Court
noted that Chapter 921, Florida Statutes, for purposes of the sentencing
statute, defines “conviction” as “a determination of guilt that is the result
of a plea or a trial, regardless of whether adjudication is withheld.”10 (e.s.)
The Court further noted that the Florida Rules of Criminal Procedure,
used to implement the sentencing guidelines, define “conviction” as “a
determination of guilt resulting from plea or trial, regardless of whether
adjudication was withheld or whether imposition of sentence was
suspended.”11 (e.s.) Following the plain language of the statute, the
Court concluded that a no contest plea is a conviction, regardless of
adjudication being withheld, for sentencing guideline purposes.12
It should be recognized, however, that the Montgomery Court did not
overrule Garron, but rather acknowledged that the Legislature had
created an exception to the general rule in Florida and made a nolo
contendere plea with adjudication of guilt withheld a conviction for
purposes of sentencing matters. No such similar definition or language
recognizing a nolo contendere plea with adjudication of guilt withheld as
a conviction is found in the statutes relating to misdemeanor domestic
violence. Clearly, had the Legislature wished to make the entry of a
nolo contendere plea with adjudication of guilt withheld tantamount to
a conviction in such matters, it could easily have done so.13
Absent statutory language which treats a nolo contendere plea with
adjudication of guilt withheld in a proceeding for a misdemeanor crime
of domestic violence as a “conviction,” I cannot say that Florida law
makes such a situation a “conviction” for purposes of permanently
barring possession of a firearm under the federal law at issue here. Had
the Legislature so intended, it could easily have defined “conviction”
for purposes of a misdemeanor domestic violence charge to include
withheld adjudications.
Accordingly, it is my opinion that Florida law does not treat a plea
of nolo contendere to a misdemeanor charge for domestic violence with
adjudication of guilt withheld and a term of probation imposed as a
“conviction” which would permanently bar an individual from possessing
a firearm pursuant to 18 United States Code section 922(g)(9).
Your question is prompted by a situation in which a member of the
Florida National Guard entered a plea of nolo contendere to misdemeanor
battery under s. 784.03, Fla. Stat., and the court withheld adjudication
and placed the service member on probation for 12 months. In this
1
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instance, the guard member was charged in Flagler County and the
victim was the member’s child.
See 18 U.S.C.A. s. 922(g)(9). See also 18 U.S.C.A. s. 922(d)(9), making
it unlawful for any person to sell or otherwise dispose of any firearm or
ammunition to any person knowing or having reasonable cause to believe
that such person “has been convicted in any court of a misdemeanor crime
of domestic violence.”
2
See 18 U.S.C.A. s. 921(a)(20). See United States v. Willis, 106 F.3d 966
(11th Cir. 1997) (Federal law states that “conviction” with the meaning of
s. 922[g][1] to be determined in accordance with the law of the jurisdiction
in which the proceedings are held, citing 18 U.S.C. s. 921[a][20]).
3
4
See State v. Gazda, 257 So. 2d 242, 243-44 (Fla. 1971).
Raydo v. State, 696 So. 2d 1225 (Fla. 1st DCA 1997), approved in part
and quashed in part, 713 So. 2d 996 (Fla. 1998).
5
6
528 So. 2d 353 (Fla. 1988).
7
Id. at 360.
See Raulerson v. State, 763 So. 2d 285, 291 (Fla. 2000), citing State v.
Keirn, 720 So. 2d 1085, 1086 (Fla. 4th DCA, 1998).
8
897 So. 2d 1282 (Fla. 2005). In Montgomery, the Court approved the
appellate court’s decision and disapproved a line of cases in which it was
held that a no contest plea followed by a withhold of adjudication is not a
“conviction” for sentencing purposes. See Negron v. State, 799 So. 2d 1126
(Fla. 5th DCA 2001); Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA
1999); State v. Freeman, 775 So. 2d 344 (Fla. 2d DCA 2000); and Garron
v. State, 528 So. 2d 353 (Fla. 1988).
9
10
See s. 921.0021(2), Fla. Stat. (2002).
11
897 So. 2d at 1284. See Fla. R. Crim. P. 3.701(d)(2).
The Montgomery Court found that its conclusion was consistent with
the legislative intent of s. 921.0021(2), Fla. Stat., as expressed by the
statute’s plain language that a “conviction” is a “determination of guilt
that is the result of a plea or a trial, regardless of whether adjudication is
withheld.” 897 So. 2d at 1285.
12
Cf. s. 784.03, Fla. Stat., providing that a person with a prior conviction
for battery who commits a second or subsequent battery commits a felony
of the third degree and defining “conviction” as “a determination of guilt
that is the result of a plea or a trial, regardless of whether adjudication is
withheld or a plea of nolo contendere is entered;” s. 775.13(1), Fla. Stat.,
defining “convicted” as “a determination of guilt which is the result of a trial
or the entry of a plea of guilty or nolo contendere, regardless of whether
adjudication is withheld” for purposes of registration of convicted felons;
13
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s. 517.161(1)(j), Fla. Stat., allowing denial of registration of a securities
dealer who “[h]as been convicted of, or has entered a plea of guilty or nolo
contendere to, regardless of whether adjudication was withheld, a crime
against the laws of this state or any other state or of the United States
or of any other country or government which relates to registration as
a dealer, investment adviser, issuer of securities, associated person, or
branch office; which relates to the application for such registration;” and
s. 458.331(1)(c), Fla. Stat., stating as a grounds for denial of a medical
license or disciplinary action, “[b]eing convicted or found guilty of, or
entering a plea of nolo contendere to, regardless of adjudication, a crime
in any jurisdiction which directly relates to the practice of medicine or to
the ability to practice medicine.”
AGO 12-30 – September 18, 2012
SCHOOL DISTRICTS – TAXATION – MILLAGE – AD VALOREM
TAXATION
AUTHORITY OF SCHOOL DISTRICT TO IMPOSE ADDITIONAL
AD VALOREM TAX MILLAGE
To: Mr. Dirk M. Smits, Attorney for the School Board of Monroe County
QUESTION:
May voters approve additional funding pursuant to section
1011.73(1), Florida Statutes, for two years, without voiding a
previously approved increase under section 1011.73(2), Florida
Statutes?
SUMMARY:
Voters may approve additional school district tax millage
pursuant to section 1011.73(1), Florida Statutes, for two years,
without voiding a previously approved increase in tax millage
under section 1011.73(2), Florida Statutes.
You state that on January 31, 2012, the voters of Monroe County
approved a .5 mill tax increase pursuant to section 1011.73(2), Florida
Statutes, for four years. The school board questions whether another
referendum for additional tax revenues may be held pursuant to section
1011.73(1), Florida Statutes, without voiding the millage adopted
pursuant to section 1011.73(2), Florida Statutes.
Section 9(a), Article VII, Florida Constitution, authorizes school
districts to levy ad valorem taxes, and if authorized by general law to
levy other taxes, for their respective purposes. Section 9(b) of Article
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VII limits the levy of ad valorem taxes for school purposes to 10 mills,
but specifically excludes “taxes levied for the payment of bonds and
taxes levied for periods not longer than two years when authorized by
vote of the electors who are the owners of freeholds therein not wholly
exempt from taxation” from the millage limitation. (e.s.) School boards
are authorized by section 1011.73, Florida Statutes, to call for district
millage elections. Subsection (2) of the statute provides:
The district school board, pursuant to resolution adopted at
a regular meeting, shall direct the county commissioners to
call an election at which the electors within the school district
may approve an ad valorem tax millage as authorized under
s. 1011.71(9). Such election may be held at any time, except
that not more than one such election shall be held during
any 12-month period. Any millage so authorized shall be
levied for a period not in excess of 4 years or until changed
by another millage election, whichever is earlier. If any such
election is invalidated by a court of competent jurisdiction, such
invalidated election shall be considered not to have been held.
(e.s.)
Section 1011.71(9), Florida Statutes, provides:
In addition to the maximum millage levied under this section
and the General Appropriations Act, a school district may levy,
by local referendum or in a general election, additional millage
for school operational purposes up to an amount that, when
combined with nonvoted millage levied under this section, does
not exceed the 10-mill limit established in s. 9(b), Art. VII of
the State Constitution. Any such levy shall be for a maximum
of 4 years and shall be counted as part of the 10-mill limit
established in s. 9(b), Art. VII of the State Constitution. Millage
elections conducted under the authority granted pursuant
to this section are subject to s. 1011.73. Funds generated by
such additional millage do not become a part of the calculation
of the Florida Education Finance Program total potential
funds in 2001-2002 or any subsequent year and must not be
incorporated in the calculation of any hold-harmless or other
component of the Florida Education Finance Program formula
in any year. If an increase in required local effort, when added
to existing millage levied under the 10-mill limit, would result
in a combined millage in excess of the 10-mill limit, any
millage levied pursuant to this subsection shall be considered
to be required local effort to the extent that the district millage
would otherwise exceed the 10-mill limit. (e.s.)
As you have indicated, Monroe County has approved an increase in
ad valorem tax millage pursuant to section 1011.73(2), Florida Statutes,
in January of this year. The plain language of the statute, therefore,
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precludes another such election to alter the millage under the section
for 12 months. Hence, the board wishes to investigate the possibility
of imposing additional millage pursuant to section 1011.73(1), Florida
Statutes. That section provides:
The district school board, pursuant to resolution adopted at a
regular meeting, shall direct the county commissioners to call
an election at which the electors within the school districts may
approve an ad valorem tax millage as authorized in s. 9, Art.
VII of the State Constitution. Such election may be held at any
time, except that not more than one such election shall be held
during any 12-month period. Any millage so authorized shall
be levied for a period not in excess of 2 years or until changed
by another millage election, whichever is the earlier. In the
event any such election is invalidated by a court of competent
jurisdiction, such invalidated election shall be considered not
to have been held.
This section recognizes the school district’s authority under section
9(b), Article VII of the Florida Constitution to have additional millage
for up to two years approved by referendum which is not subject to the
10-mill cap.1
Thus, it would appear that the Legislature has provided two distinct
methods by which a school district may obtain ad valorem tax millage
with voter approval. There is nothing in the statute which would
indicate that the two subsections are mutually exclusive. In discussions
with the Florida Department of Education, this office has been advised
that the department is in agreement that subsections (1) and (2) of
section 1011.73, Florida Statutes, operate independently.
It is a general rule of statutory construction that when two statutes
relate to common things or have a common or related purpose, they are
said to be pari materia, and where possible, the construction should be
adopted that best harmonizes and reconciles the statutory provisions
so as to preserve the force and effect of each.2 It would appear,
therefore, that section 1011.73(2), Florida Statutes, provides a means to
impose tax millage in addition to the millage authorized under section
1011.73(1), Florida Statutes, rather than imposing a tax millage in its
stead. Nothing within section 1011.73(1) or section 1011.73(2), Florida
Statutes, references a limitation upon the millage proposed in the other.
In light of the above discussion, it is my opinion that the voters of
a county may approve additional ad valorem tax millage pursuant to
section 1011.73(1), Florida Statutes, without voiding a tax millage that
has already been approved under section 1011.73(2), Florida Statutes.
Obviously, this opinion expresses no view on the merits of a school
district’s decision to put such a matter before the voters.
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See s. 9(b), Art. VII, Fla. Const., excepting from the 10-mill cap taxes
levied for periods not longer than two years when authorized by vote of
the electors.
1
See Ideal Farms Drainage Dist. v. Certain Lands, 19 So. 2d 234 (Fla.
1944); State ex rel. Ashby v. Haddock, 140 So. 2d 631 (Fla. 1st DCA 1962).
2
AGO 12-31 – September 19, 2012
MUNICIPALITIES – GOVERNMENT IN THE SUNSHINE –
AUDITS
AUTHORITY TO RATIFY INVALID ACTION
To: Mr. James M. Messer, City Attorney, City of Pensacola
QUESTION:
Does an audit committee’s ratification of a request for
proposals which was created and issued by the county’s financial
officer and found to be defective validate the previously issued
request for proposals?
SUMMARY:
An audit committee’s statutorily prescribed function to
exercise its discretion to create a request for proposals may not
be delegated to a subordinate or other entity, absent statutory
authorization. The committee may not, therefore, ratify a
defective request for proposals which was created and issued
by the county’s financial officer contrary to the requirements
of the law. A mere perfunctory or ceremonial acceptance of
the previous action will not validate the defective request for
proposals.
You state that the city’s financial officer issued a request for
proposals (RFP) for the city’s annual financial audit required by section
218.39, Florida Statutes. You indicate that after the RFP had been
issued an audit committee was created and the committee subsequently
ratified it. The RFP issued by the financial officer apparently contained
factors to use for the evaluation of the audit services which were not
established by the audit committee, as required by the statute, but
were ratified by the committee after the RFP was issued. According to
your letter, the RFP also contained inaccurate information regarding
the city’s authority relating to the audit selection process.1 Despite the
irregularities, you indicate that you have advised the city council that
the RFP was properly ratified by the audit committee and, therefore,
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it is valid and in compliance with the requirements of section 218.39,
Florida Statutes, such that the selection process may proceed.
Section 218.39, Florida Statutes, requires a local governmental entity
which has not been notified by the first day of the fiscal year that a
financial audit will be performed by the Auditor General to have an
annual financial audit of its accounts and records completed within nine
months after the end of its fiscal year by an independent certified public
accountant retained by it and paid from its public funds.2 The statute
specifically applies to any municipality with revenues or the total of
expenditures and expenses in excess of $250,000 (as reported on the
fund financial statements) or any municipality with revenues or the
total of expenditures and expenses between $100,000 and $250,000, as
reported on the fund financial statements, which has not been subject
to a financial audit pursuant to this subsection for the two preceding
fiscal years.3
The procedures to be used to select an auditor are contained in section
218.391, Florida Statutes. The statute requires each local governmental
entity to use specified auditor selection procedures when selecting an
auditor to conduct the annual financial audit required in section 218.39,
Florida Statutes.4 The governing body of the entity, however, must
first establish an audit committee, the primary responsibility of which
is to assist the governing body in selecting an auditor to conduct the
annual financial audit.5 Moreover, the activities of the audit committee
must be open to the public.6 As reflected in section 218.391(3), Florida
Statutes, the audit committee shall:
(a) Establish factors to use for the evaluation of audit services
to be provided by a certified public accounting firm duly
licensed under chapter 473 and qualified to conduct audits in
accordance with government auditing standards as adopted by
the Florida Board of Accountancy. Such factors shall include,
but are not limited to, ability of personnel, experience, ability to
furnish the required services, and such other factors as may be
determined by the committee to be applicable to its particular
requirements.
(b) Publicly announce requests for proposals. Public
announcements must include, at a minimum, a brief description
of the audit and indicate how interested firms can apply for
consideration.
(c) Provide interested firms with a request for proposal. The
request for proposal shall include information on how proposals
are to be evaluated and such other information the committee
determines is necessary for the firm to prepare a proposal.
(d) Evaluate proposals provided by qualified firms. If
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compensation is one of the factors established pursuant to
paragraph (a), it shall not be the sole or predominant factor
used to evaluate proposals.
(e) Rank and recommend in order of preference no fewer than
three firms deemed to be the most highly qualified to perform
the required services after considering the factors established
pursuant to paragraph (a). If fewer than three firms respond to
the request for proposal, the committee shall recommend such
firms as it deems to be the most highly qualified.
Thus, the Legislature has provided a template which must be followed
by a municipality for the creation of and performance of functions by
an audit committee under section 218.391, Florida Statutes, before
the municipality may choose an auditor. Where the Legislature has
prescribed the manner in which something is to be done, it is, in effect,
a prohibition against its being done in any other manner.7
You cite to Frankenmuth Mutual Insurance Company v. Magaha,8
however, for the proposition that the audit committee may ratify the
RFP which was created and released by the county’s financial officer. In
Frankenmuth, the Supreme Court of Florida considered whether a county
commission could approve or ratify a contract that had been executed
without authority by the county’s comptroller. Citing to several early
cases and a general treatise on the power of municipal corporations,
the Court determined that the board of county commissioners had the
power to approve the agreement after it was executed.9
The Frankenmuth Court stated, however, “for a local government
to properly ratify a previously executed, unauthorized agreement, the
agreement must be ratified ‘in the same manner . . . in which it might
have been originally adopted.’”10
In this instance, section 218.391, Florida Statutes, contemplates the
creation of an audit committee which is responsible for the formulation
of factors to be used in evaluating a firm’s ability to perform auditing
functions and such a committee must carry out its functions at public
meetings. The committee must publicly announce requests for proposals
and provide interested firms with information on how proposals are to
be evaluated and such other information as the committee determines
is necessary for the firm to prepare a proposal. The committee must
then rank and recommend in order of preference at least three firms
it deems the most highly qualified to perform the required auditing
services. After the audit committee has fulfilled these functions, the
governing body may select one of the recommended firms and negotiate
a contract.
A mere perfunctory ratification or approval of the financial officer’s
action which should have been performed by the audit committee at
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a public meeting would not appear to fulfill the audit committee’s
responsibilities and duties under the statute. It is questionable,
moreover, whether the audit committee’s statutorily prescribed
functions may be delegated to the financial officer. Absent statutory
authority, the discretionary authority of a public official or entity may
not be delegated to a subordinate.11
As the courts have found, independent final action taken at a public
meeting is the only means to cure the defect created by action taken
outside of the sunshine.12 Moreover, there is a distinction between the
ratification of a contract which should have been signed by a county
commission and the approval of the unauthorized performance of
statutorily prescribed duties which should have been undertaken at a
public meeting.
Accordingly, it is my opinion that the audit committee may not ratify
or approve the action taken by the financial officer, absent statutory
authority authorizing the delegation of the committee’s duties. A mere
perfunctory or ceremonial acceptance of the previous action will not
validate the defective request for proposals.
You have provided a list of irregularities and misstatement of facts
present in the RFP. This office will not address the impact of the alleged
irregularities, as this office does not comment upon the provisions of local
codes or contracts.
1
2
Section 218.39(1), Fla. Stat.
3
Section 218.39(1)(b), Fla. Stat.
4
Section 218.391(1), Fla. Stat.
5
Section 218.391(2), Fla. Stat.
6
Id.
See Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944) (“When the
Legislature has prescribed the mode, that mode must be observed. When
the controlling law directs how a thing shall be done that is, in effect, a
prohibition against its being done in any other way”); Thayer v. State, 335
So. 2d 815, 817 (Fla. 1976).
7
8
769 So. 2d 1012 (Fla. 2000).
Id. at 1019-1029, citing Ramsey v. City of Kissimmee, 139 Fla. 107,
111-13, 190 So. 474, 476-477 (1939); Brown v. City of St. Petersburg, 111
Fla. 718, 720, 153 So. 140 (1933); cf. City of Panama City v. T&A Utility
Contractors, 606 So. 2d 744, 747 (Fla. 1st DCA 1992) (city ratified city
manager’s unauthorized contract between city and third party); Tolar
v. School Board of Liberty County, 398 So. 2d 427, 428-429 (Fla. 1981)
9
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(school board’s action taken in violation of Sunshine Law could be later
ratified if taken in accordance with such law); 10A McQuillin, The Law of
Municipal Corporations, s. 29.104 at 63 (3d ed. 1999) (general rule that
whatever acts public officials may do or authorized to do in first instance
may subsequently be adopted or ratified with the same effect as though
properly done under previous authority).
769 So. 2d at 1021, citing Ramsey v. City of Kissimmee, supra at 477,
and Broward County v. Conner, 660 So. 2d 288, 290 (Fla. 4th DCA 1995)
(if county could not enter into contract without taking action at a public
meeting, it necessarily follows that actions of the county’s attorneys could
not bind the county in the absence of proper commission approval).
10
See Op. Att’y Gen. Fla. 88-61 (1988), citing Op. Att’y Gen. Fla. 74-116
(1974) and 67 C.J.S. Officers s. 194). See also State v. Inter-American
Center Authority, 84 So. 2d 9 (Fla. 1955), recognizing that absent
statutory authority, public officer cannot delegate powers, even with
court approval.
11
See Finch v. Seminole County School Board, 995 So. 2d 1068, 1073
(Fla. 5th DCA 2008); Spillis Candela & Partners, Inc. v. Centrust Savings
Bank, 535 So. 2d 694 (Fla. 3d DCA 1988) (only a full open hearing will
cure a defect; a violation of the Sunshine Law will not be cured by a
perfunctory ratification of the action taken outside the sunshine).
12
AGO 12-32 – September 19, 2012
COUNTIES – ZONING – PLANNED DEVELOPMENTS –
COMMUNITY PLANNING ACT – CONSENT REQUIREMENTS
AUTHORITY OF COUNTY TO ADOPT ORDINANCE CONTAINING
OTHER LANDOWNER CONSENT REQUIREMENT FOR
APPLICATIONS FOR ZONING CHANGES
To: Mr. Mark H. Scruby, Clay County Attorney
QUESTIONS:
1. In the case of an application to revise the zoning for a
portion of a planned development by the owner of said portion,
do the provisions of the Community Planning Act, as codified
in Part II of Chapter 163, Florida Statutes, authorize a local
government to require in its zoning code the consent to the
application by some or all of the other individual property
owners within the planned development, or by an association
of property owners governed under Chapters 718, 719, or 720,
Florida Statutes, and operating within the planned development,
before the application can be considered for approval?
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2. If the answer to Question 1 is in the negative, then in the case
of an application to revise the zoning for a portion of a planned
development by the owner of said portion, does the common
law or any other statutory law authorize a local government to
require in its zoning code the consent to the application by some
or all of the other individual property owners within the planned
development, or by an association of property owners governed
under Chapters 718, 719, or 720, Florida Statutes, and operating
within the planned development before the application can be
considered for approval?
3. In the case of an application to revise the zoning for a
portion of a planned development by the owner of said portion,
where the planned development is also subject to recorded
covenants and restrictions (i) that are private in nature, (ii) that
govern use rights and limitations and development standards for
all lands within the planned development, and (iii) that give the
individual owners of land within the planned development the
right to vote on amendments to the covenants and restrictions,
does the common law or any other statutory law authorize a local
government to require such application to include the favorable
outcome of a vote to approve the filing of the application by all
or some fixed percentage of such individual members casting
ballots?
SUMMARY:
1. & 2. I am not aware of nor have you drawn my attention to
any provision of the “Community Planning Act” which would
authorize a local governmental agency to delegate its legislative
zoning authority to other land owners by requiring their consent
prior to the acceptance of a request for rezoning. In the absence
of concern for a particular statutory provision, however, this
office will not undertake a broad review of multiple chapters
of the Florida Statutes in an attempt to justify what the courts
have clearly identified as a suspect practice. Finally, there is
no common law right of local governments to impose a consent
requirement such as the one you propose on applications for
rezoning. Rather, the extent of the zoning power is circumscribed
by the grant of power from the Legislature to local governments
and contained in Chapters 125 and 166, Florida Statutes.
3. This office will not comment on the terms of private
contracts or their enforcement. As addressed more fully herein,
consent requirements such as the one you have proposed
may constitute an unconstitutional delegation of legislative
authority and are not favored in the law and may implicate a
number of constitutional rights.
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According to your letter, the zoning article of Clay County’s land
development code provides for planned developments in addition to
conventional use categories. The code requires that an application to
rezone a tract of land into a planned development must be joined by
all owners of the property within the boundaries of the proposed tract.
Occasionally, a party owning a portion of a planned development may
wish to modify some aspect of the plan as it was previously approved. In
order for such party to apply for the modification, the code requires that
the application be joined by all of the other owners of property within
the boundaries of the planned development, not just the owners of the
parcel for which the modification is sought. Without the joinder of all
these owners, an application for modification will not be accepted.
The Board of County Commissioners has realized the difficulty
of acquiring such third party joinder, especially as a development
approaches build-out and hundreds or thousands of individual parcels
have already been conveyed to third parties. In light of these concerns,
the board is considering the adoption of an ordinance amending the
joinder provision by reducing the percentage of joining owners from one
hundred to some lesser figure or by eliminating it entirely.
As the county attorney, you have advised the board that the
submission of an application to amend a portion of an approved planned
development cannot lawfully be conditioned on the joinder or consent
of third parties who have no ownership interest in the particular
parcel, even if the third parties own other property within the planned
development. However, community concerns with the reduction or
elimination of these restrictions has led to the Clay County Board of
County Commissioners requesting that an Attorney General Opinion
be sought on these issues.
Initially, I must advise you that this office has no authority to comment
on validly adopted provisions of the current zoning code of Clay County.
This office, like the courts, must assume that a validly adopted statute
or ordinance is lawful and effective until it is challenged and declared
invalid in an appropriate court case.1 Thus, my comments are provided
to you for use by the commission in considering proposed legislation.
QUESTIONS 1. & 2.
Zoning is generally understood to be the regulation of land according
to its nature and uses.2 The power to restrict the use of land through
zoning is delegated to local governments by the Legislature and is
limited by the terms of the grant.3 The classification, regulation,
prohibition, restriction, permitting, and determination of uses within
districts constitutes an exercise of local governmental zoning and police
power, possessed by counties and municipalities generally under zoning
statutes.4 Thus, zoning enactments cannot validly be extended beyond
the accomplishment of those purposes within their scope.5
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In order to be valid, any zoning regulations that are adopted must
be reasonable and nondiscriminatory and they must tend to promote
the public health, safety, morals, or general welfare.6 As the Florida
Supreme Court stated in Griffin v. Sharpe,7 an ordinance enacted under
a theory of general police powers must not infringe on constitutional
guarantees by invading personal or property rights unnecessarily or
unreasonably, denying due process of law or equal protection of laws,
or impairing obligations of contract. In addition, such an ordinance
must not be inconsistent with the general laws of the state, must not
discriminate unreasonably, arbitrarily or oppressively, and must not
constitute a delegation of legislative or executive or administrative
power.8
You have asked whether some statutory provision may authorize
a local government to require in its zoning code that consent to an
application for rezoning by some or all of the other individual property
owners within a planned development is required before the application
can be considered for approval. As a general proposition this office has
previously concluded that such a requirement might, if enacted, result
in an illegal delegation or abdication of legislative power.
In Attorney General Opinion 83-31, this office was asked by the Board
of County Commissioners of Santa Rosa County whether an ordinance
could be validly enacted which required the written consent of a
majority of landowners and homeowners within a designated distance
of proposed landing strips or runways of an airport facility prior to the
construction of any additional airport facility in the county. A statutory
provision, section 330.36, Florida Statutes, provided that no county
or municipality could license airports or control their location except
by zoning requirements. The statute made no exception for any other
type of county ordinance other than regulation by a zoning ordinance.
Thus, the opinion concluded that such an ordinance could not be validly
enacted or enforced. The opinion goes on to caution against a possible
illegal delegation or abdication of legislative power by the adoption of
such an ordinance:
Additionally, the proposed ordinance, if enacted, might well
result in an illegal delegation or abdication of legislative power.
An airport or landing field constructed and operated in a proper
manner is not a nuisance per se.9 Thus, the construction or
maintenance and operation of an airport facility are not
susceptible to regulation or proscription as a public nuisance by
county legislative enactment.10 The proposed ordinance does
not zone any lands or prohibit the use of designated or specific
lands at specific locations for airport purposes or establish any
safety regulations or standards in the interest of and to protect
the public health, safety or welfare. It simply requires the
airport owner or developer to obtain the written consent of the
majority of the specified landowners and homeowners prior to
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commencing construction of any additional airport facility in
the county, and the only limitation upon such property owners
in exercising their power to consent or withhold their consent
to “the construction of any additional airport facility” is their
own free will and choice or their own whims or unbridled
discretion. It permits the adjoining landowners to regulate
property rights and deny a landowner his right to use his
property, not otherwise restricted or regulated by law, for a
lawful use or purpose. In effect, the affected landowners and
homeowners are delegated the legislative power vested in the
county commission to determine the public policy and regulate
property rights and whether an airport facility may be located,
maintained and operated at any particular location. The
governmental powers of the legislative and governing body of a
county cannot be delegated.11
While consideration generally must be given to the rights of the
individual landowner of the property involved as well as the interests
of adjoining landowners and others in the adoption of zoning changes,12
I must caution that an ordinance which delegates the legislative
power vested in the county commission to determine the public policy
and regulate property rights based on the written consent of all or a
majority of the specified landowners and homeowners prior to accepting
an application for rezoning might well be seen by a court as an invalid
delegation of the legislative power of the county.13
Further, under Florida law generally, a property owner acquires
no vested rights to the continuation of existing zoning.14 There is no
general constitutional right to be free from all changes in land use
laws.15 A landowner who plans to use his property in accordance
with existing zoning regulations is entitled to assume only that such
regulations will not be altered to his detriment, unless the change bears
a substantial relation to the health, morals, welfare or safety of the
public.16 As discussed above, an ordinance enacted under a theory of
general police powers must not infringe on constitutional guarantees
by invading personal or property rights unnecessarily or unreasonably,
denying due process of law or equal protection of laws, or impairing
obligations of contract. Nor may such an ordinance be inconsistent with
the general laws of the state, discriminate unreasonably, arbitrarily or
oppressively, or constitute a delegation of legislative or executive or
administrative power.17 The adoption of an ordinance which includes a
consent requirement as a condition precedent to the application process
for rezoning could be seen to interject an element of arbitrariness
into that application process.18 Again, the opinions of residents are
not factual evidence and have been determined by the courts to not
constitute a sound basis for denial of a zoning change application.19
You have specifically directed my attention to the Community
Planning Act, sections 163.3164-163.3217, Florida Statutes, and
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associations of property owners governed under Chapters 718, 719, or
720, Florida Statutes, and operating within the planned development
as potential sources of statutory authority for adopting an ordinance
imposing a consent requirement to an application for rezoning.
The “Community Planning Act,” codified in Part II, Chapter 163,
Florida Statutes, was enacted to
utilize and strengthen the existing role, processes, and powers
of local governments in the establishment and implementation
of comprehensive planning programs to guide and manage
future development consistent with the proper role of local
government.20
The act specifically provides that “no public or private development
shall be permitted except in conformity with comprehensive plans, or
elements or portions thereof, prepared and adopted in conformity with
this act.”21 The comprehensive plan must provide
the principles, guidelines, standards, and strategies for
the orderly and balanced future economic, social, physical,
environmental, and fiscal development of the area that reflects
community commitments to implement the plan and its
elements. These principles and strategies shall guide future
decisions in a consistent manner and shall contain programs
and activities to ensure comprehensive plans are implemented.
The sections of the comprehensive plan containing the principles
and strategies, generally provided as goals, objectives, and
policies, shall describe how the local government’s programs,
activities, and land development regulations will be initiated,
modified, or continued to implement the comprehensive plan in
a consistent manner. It is not the intent of this part to require
the inclusion of implementing regulations in the comprehensive
plan but rather to require identification of those programs,
activities, and land development regulations that will be part of
the strategy for implementing the comprehensive plan and the
principles that describe how the programs, activities, and land
development regulations will be carried out. The plan shall
establish meaningful and predictable standards for the use
and development of land and provide meaningful guidelines
for the content of more detailed land development and use
regulations.22
The act provides that it is the will of the Legislature that the public
be involved in community planning:
It is the intent of the Legislature that the public participate
in the comprehensive planning process to the fullest extent
possible. Towards this end, local planning agencies and local
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governmental units are directed to adopt procedures designed
to provide effective public participation in the comprehensive
planning process and to provide real property owners with
notice of all official actions which will regulate the use of their
property. The provisions and procedures required in this act
are set out as the minimum requirements towards this end.23
To facilitate this public participation the act requires public hearings,
the opportunity for written comments, and other public information
opportunities.24 As Florida courts have noted with regard to zoning
decisions:
The role of the governmental entity is to arrive at sound
decisions affecting the use of property within its domain. This
includes receiving citizen input regarding the effect of the
proposed use on the neighborhood, especially where the input
is fact-based.25
However, no provision of the “Community Planning Act” of which I
am aware or to which you have drawn my attention would authorize a
local governmental agency to delegate its legislative zoning authority to
other land owners by requiring their consent prior to the acceptance of
a request for rezoning.26
You have also asked whether associations of property owners governed
under Chapters 718, 719, or 720, Florida Statutes, and operating
within the planned development may be potential sources of statutory
authority for adopting an ordinance imposing a consent requirement
to an application for rezoning. You are aware of no provisions in these
laws which would bear directly on the validity of consent requirements
prior to accepting a request for rezoning. Rather, these references,
and your previous reference to Part II, Chapter 163, Florida Statutes,
are intended to reflect more recent land development regulation and
property owner rights laws. In the absence of concern for a particular
statutory provision, this office will not undertake a broad review of
multiple chapters of the Florida Statutes in an attempt to justify what
the courts have clearly identified as a suspect practice.
Finally, the zoning power of Florida counties is statutory, not a
common law power.27 Local governments have no inherent right to
restrict the use of land through zoning; such right is limited by the
statute or ordinance creating the same.28 The adoption of zoning
ordinances and zoning maps is a legislative act29 and zoning ordinances
must find their justification in some aspect of the police power, asserted
for the public welfare.30 I am aware of, and you have brought to my
attention, no common law right of local governments to impose a consent
requirement such as the one you propose on applications for rezoning.
Rather, the extent of the zoning power is circumscribed by the grant
of power from the Legislature to local governments and contained in
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Chapters 125 and 166, Florida Statutes.
QUESTION 3.
You have asked whether a local government may require an
application for rezoning to include the favorable outcome of a vote to
approve the filing of the application by all or some of the individual
members voting on the matter when private recorded covenants and
restrictions call for such a vote. This office will not comment on the
terms of private contracts or their enforcement. As addressed more fully
herein, consent requirements such as the one you have proposed may
constitute an unconstitutional delegation of legislative authority and
are not favored in the law and may implicate a number of constitutional
rights.31
See Evans v. Hillsborough County, 186 So. 193 (Fla. 1938) (a statute
found on statute books must be presumed to be valid and must be given
effect until it is judicially declared unconstitutional); White v. Crandon,
156 So. 303 (Fla. 1934) (county commissioners must obey statutes until
in proper proceedings they are passed upon by the courts and declared
invalid); State ex rel. Gillespie v. Thursby, 139 So. 372 (Fla. 1932),
rehearing denied, 140 So. 775 (Fla. 1932); Falco v. State, 407 So. 2d 203
(Fla. 1981) (court has duty, if reasonably possible, and consistent with
constitutional rights, to resolve all doubts as to validity of statute in favor
of its constitutionality); State v. Jefferson, 758 So. 2d 661 (Fla. 2000);
Ops. Att’y Gen. Fla. 92-02 (1992) (statutes are presumptively valid and
must be given effect until determined otherwise by a court of competent
jurisdiction in an appropriate judicial proceeding; 88-09 (1989); 87-36
(1987); cf. 90-47 (1990) (presumptive validity of municipal ordinance).
1
See 7 Fla. Jur. 2d Building, Zoning, and Land Controls s. 53; and see
Barefield v. Davis, 251 So. 2d 699 (Fla. 1st DCA 1971).
2
As a charter county, the zoning power of Clay County is derived from
Art. VIII, s. 1(f), Fla. Const., and Part II, Ch. 125, Fla. Stat., particularly
s. 125.66(4), Fla. Stat. Cf. State ex rel. Henry v. Miami, 158 So. 82
(Fla. 1934) (no such thing as a general legislative power on the part of
municipal authorities to control and direct how the private properties of
municipal inhabitants shall be held or enjoyed).
3
4
See Inf. Op. to Chiaro, dated January 24, 1997.
See Davis v. Sails, 318 So. 2d 214 (Fla. 1st DCA 1975); Prescott v.
Charlotte County, 263 So. 2d 623 (Fla. 2d DCA 1972), cert. denied, 267 So.
2d 834 (Fla. 1972).
5
See City of Jacksonville v. Sohn, 616 So. 2d 1173 (Fla. 1st DCA 1993);
Carter v. Town of Palm Beach, 237 So. 2d 130 (Fla. 1970); Op. Att’y Gen.
Fla. 79-71 (1979); 62 C.J.S. Municipal Corporations ss. 128, 132-135
6
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(1949); 7 Fla. Jur. 2d Building, Zoning, and Land Controls s. 102.
65 So. 2d 751 (Fla. 1953), and see City of Port Orange v. Leechase Corp.,
430 So. 2d 534 (Fla. 5th DCA 1983).
7
And see Miami Shores Village v. William N. Brockway Post No. 124
of American Legion, 24 So. 2d 33 (Fla. 1945); Wallace v. Town of Palm
Beach, 624 F.Supp. 864 (S.D. Fla. 1985); Inf. Op. to Dellagloria, dated
January 5, 2001.
8
See generally 2A C.J.S. Aeronautics and Aerospace s. 70 (1972); Brooks
v. Patterson, 31 So. 2d 472, 474 (Fla. 1947); cf. Corbett v. Eastern Air
Lines, Inc., 166 So. 2d 196 (Fla. 1st DCA 1964).
9
See Brooks v. Patterson, supra, and S.H. Kress and Co. v. City of Miami,
82 So. 775 (Fla. 1919).
10
Crandon v. Hazlett, 26 So. 2d 638, 642 (Fla. 1946); State v. City of
Tallahassee, 177 So. 719 (Fla. 1937); Dade County v. State, 116 So. 72
(Fla. 1928); see also Washington ex rel. Seattle Title Trust Co. v. Roberge,
278 U.S. 116 (1928); and see generally 16 C.J.S. Constitutional Law ss.
133, 137 (1956); 62 C.J.S. Municipal Corporations ss. 154, 226(10), 227(9)
(1949); 101A C.J.S. Zoning and Land Planning s. 30 (1979). See also City
of Miami Beach v. Forte Towers, Inc., 305 So .2d 764 (Fla. 1974); Cassady
v. Consolidated Naval Stores Company, 119 So. 2d 35 (Fla. 1960); Richey
v. Wells, 166 So. 817 (Fla. 1936); Bailey v. Van Pelt, 82 So. 789 (Fla. 1919).
Cf. Cusack Co. v. City of Chicago, 242 U.S. 526 (1917); Eubank v. City of
Richmond, 226 U.S. 137 (1912); Grova v. Baran, 134 So. 2d 25 (Fla. 2d
DCA 1961), appeal dismissed, 145 So. 2d 489 (Fla. 1962); Miller v. Ryan,
54 So. 2d 60 (Fla. 1951).
11
See 101A C.J.S. Zoning and Land Planning s. 71; and see infra n.25
providing citations to Florida statutory provisions providing for the
consideration of “affected person[s]” during the development process who
may include owners of abutting real property.
12
See Pollard v. Palm Beach County, 560 So. 2d 1358 (Fla. 4th DCA
1990) (opinions of residents are not factual evidence and not sound basis
for denial of zoning change application); City of Apopka v. Orange County,
299 So. 2d 657, 659-660 (Fla. 4th DCA 1974); and Town of Ponce Inlet v.
Rancourt, 627 So. 2d 586 (Fla. 5th DCA 1993); Marell v. Hardy, 450 So.
2d 1207 (Fla. 4th DCA 1984) (it is the function of the legislative body
charged with responsibility for protecting and enhancing the health,
welfare, and safety of public to weigh the advantages and disadvantages
of rezoning property).
13
See Villas of Lake Jackson, Ltd. v. Leon County, 884 F.Supp. 1544
(N.D. Fla. 1995), opinion modified on reconsideration, 906 F.Supp. 1509
(N.D. Fla. 1995), affirmed, 121 F.3d 610 (C.A. 11 Fla. 1997).
14
15
New Port Largo, Inc. v. Monroe County, 95 F.3d 1084 (C.A. 11 Fla.
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1996), cert. denied, 117 S.Ct. 2514, 521 U.S. 1121, 138 L.Ed.2d 1016
(1997).
City of Miami Beach v. 8701 Collins. Ave., Inc., 77 So. 2d 428 (Fla.
1954).
16
And see Miami Shores Village v. William N. Brockway Post No. 124
of American Legion, 24 So. 2d 33 (Fla. 1945); Wallace v. Town of Palm
Beach, 624 F.Supp. 864 (S.D. Fla. 1985); Inf. Op. to Dellagloria, dated
January 5, 2001.
17
See, e.g, Corn v. City of Lauderdale Lakes, 997 F.2d 1369 (C.A. 11
Fla. 1993), cert. denied, 114 S.Ct. 1400, 511 U.S. 1018, 128 L.Ed.2d 73,
appeal after remand, 95 F.3d 1066, cert. denied, 118 S.Ct. 441, 522 U.S.
981, 139 L.Ed.2d 378 (restrictions government imposes on land must be
substantially related to general welfare; if not, governmental action is
arbitrary and capricious in violation of substantive due process); Eide v.
Sarasota County, 908 F.2d 716 (C.A. 11 Fla. 1990), cert. denied, 111 S.Ct.
1073, 498 U.S. 1120, 112 L.Ed.2d 1179 (property owner may challenge
zoning regulation by arguing that regulation is arbitrary and capricious,
does not bear substantial relation to public health, safety, morals, or
general welfare, and is therefore invalid exercise of police power; owner
need only prove that government acted arbitrarily and capriciously either
facially or as applied).
18
19
Pollard v. Palm Beach County, supra.
20
Section 163.3161(2), Fla. Stat.
21
Section 163.3161(6), Fla. Stat.
Section 163.3177(1), Fla. Stat., and see the remainder of this statute
for the required and optional elements of a comprehensive plan.
22
23
Section 163.3181(1), Fla. Stat.
See e.g., s. 163.3181(2), Fla. Stat.; s. 163.3174(1) and (4), Fla. Stat.,
requiring that the local planning agency prepare the comprehensive plan
or amendment after public hearings; s. 163.3184(11), Fla. Stat., providing
for public hearings during the process for adoption of comprehensive plans
or plan amendments. However, I would also note that s. 163.3167(8),
Fla. Stat., specifically prohibits “[a]n initiative or referendum process in
regard to any development order or in regard to any local comprehensive
plan amendment or map amendment[.]”
24
See City of Dania v. Florida Power and Light, 718 So. 2d 813 at 816
(Fla. 4th DCA 1998), citing Grefkowicz v. Metropolitan Dade County, 389
So. 2d 1041 (Fla. 3d DCA 1980); Metropolitan Dade County v. Blumenthal,
675 So. 2d 598 (Fla. 3d DCA 1995).
25
26
Cf. s. 163.3184, Fla. Stat., which defines “[a]ffected person” to include
“owners of real property abutting real property that is the subject of a
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proposed change to a future land use map” and authorizing any affected
person to file a petition with the Division of Administrative Hearings
to challenge whether the plan is in compliance with the statute;
s. 163.3187(5)(a), Fla. Stat., providing a similar procedure for any
“affected person” to challenge the compliance of a small scale development
amendment; and s. 163.3215, Fla. Stat., providing standing for aggrieved
or adversely affected parties to enforce local comprehensive plans through
development orders. And cf. Preserve Palm Beach Political Action
Committee v. Town of Palm Beach, 50 So. 3d 1176, 1179 (Fla. 4th DCA
2010) (“The right of the people to vote on issues they are entitled to vote
on is one of utmost importance in our democratic system of government.
But there are issues – such as the right of a small landowner to use his
property subject only to government regulations – which should not be
determined by popular vote. Section 163.3167(12) rightfully protects
the small landowner from having to submit her development plans to
the general public and ensures that those plans will be approved or not,
instead, by the elected officials of the municipality in a quasi-judicial
process.”).
27
See Penthouse, Inc. v. Saba, 399 So. 2d 456 (Fla. 2d DCA 1981), review
denied, 408 So. 2d 1095 (Fla. 1981).
28
See Florida Tallow Corp. v. Bryan, 237 So. 2d 308 (Fla. 4th DCA 1970).
Pasco County v. J. Dico, Inc., 343 So. 2d 83 (Fla. 2d DCA 1977); and
see Starkey v. Okaloosa County, 512 So. 2d 1040 (Fla. 1st DCA 1987)
(rezoning is a legislative prerogative).
29
Flava Works, Inc. v. City of Miami, Fla., 800 F.Supp. 2d 1182 (S.D. Fla.
2011); and see County of Volusia v. City of Deltona, 925 So. 2d 340 (Fla.
5th DCA 2006), rehearing denied (2006), (because the zoning power is an
aspect of the police power, a municipality may not enter into a private
contract with a property owner for the amendment of a zoning ordinance
subject to restrictions in an agreement to be executed between the city
and the owner).
30
See Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610 (C.A.
11 Fla. 1997) (any constitutional right based upon zoning regulation
governing specific use of real property, to extent claim is based upon
deprivation of right to use property itself for that specific purpose is
protectable, if it is right for which Constitution gives protection at all,
only by procedural due process claim challenging procedures by which
regulation was adopted, substantive due process claim based upon
arbitrary and capricious action of government in adopting regulation,
Takings Clause claim, or under some other constitutional provision that
gives landowner protectable right, not specifically involved with real
property right itself).
31
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AGO 12-33 – September 19, 2012
PUBLIC FUNDS – PRIVATE PROPERTY – DECLARATION OF
EMERGENCY
USE OF PUBLIC FUNDS; ENTRY ONTO PRIVATE PROPERTY
To: Mr. Hal A. Airth, Attorney, Suwannee County Board of County
Commissioners
QUESTIONS:
1. May the County use public funds to repair washouts on
private non-roadway property created by water run-off from a
public road? Similarly, may the County enter private property
and remove materials that were washed from the public roads
onto the private property? May the County act in either case
with or without a declared local state of emergency?
2. If a sink hole opens on private property then impacts
public property, may the County enter the private property
to seal the sink hole while repairing the public property?
Similarly, if a sink hole opens on public property then runs on to
private property, may the County enter and repair the damage
to the private property? Is the response different if the work
performed on private property is necessary to protect the public
property? May the County act in either case with or without a
declared local state of emergency?
SUMMARY:
1. In light of the broad language contained in the State
Emergency Management Act authorizing local governments
to act to protect county citizens and their property, it is my
opinion that county resources may be utilized in this effort and
that Suwannee County may dedicate county funds to the repair
of washouts on private non-roadway property that have been
caused by water run-off from a public roadway. Likewise, public
funds could be dedicated to the repair of sinkholes on private
property that impact public property. This conclusion is based
on the extensive powers delegated to local governments under
the State Emergency Management Act and such authority would
not extend to the county in the absence of a declared local state
of emergency. Further, the Suwannee County Commission must
still independently determine that these emergency repairs
accomplish a valid public purpose as is required in the State
Emergency Management Act.
2. In light of potential for charges of violations of section
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810.09, Florida Statutes, this office would suggest, should the
Suwannee County Commission determine to commit county
manpower to the repair of sinkholes and non-roadway property
which affect public property, that the county secure consents
from the landowners of such private property to enter and
remain on the property while performing emergency repairs
While you have asked a number of questions relating to washouts
and sinkholes, I understand all of these questions to involve two central
issues: 1) whether the county is authorized to use public funds to
repair private property damaged during an emergency and 2) whether
the county may enter onto private property to effect these repairs.
Therefore, this discussion is directed to these issues.
QUESTION 1. – Use of Public Funds
According to your letter, Tropical Storm Debby dumped massive
amounts of rain in Suwannee County in a short period of time. As a
result of that intense rainfall, water flowing off county roads has caused
severe washouts on private property. You have drawn my attention to a
previously issued opinion of this office, Attorney General Opinion 98-22,
in which it was concluded that Citrus County could use county funds to
keep private roads passable during a declared state of emergency under
section 252.38, Florida Statutes, if the county commission determines
that such an expenditure satisfied a county purpose. You have asked
whether section 252.38, Florida Statutes, would authorize the county to
make the proposed expenditures of public funds when the damage was
caused by runoff from public roads. You also ask whether this statutory
language would authorize the dedication of public funds to the repair of
sinkholes that may have appeared on private property and that impact
public property.
It is a basic proposition of Florida law that the expenditure of
public funds must be used primarily for a public purpose.1 Thus, the
expenditure of county funds must meet a county purpose, rather than a
private purpose.2 The issue has most frequently occurred in relation to
the repair of public roadways and the courts of this state and this office
have concluded that public funds may only be spent for the construction,
maintenance, or repair of public roads.3
The situation in Attorney General Opinion 98-22, like the situation
you have described in Suwannee County, involved a local declaration
of emergency pursuant to section 252.38, Florida Statutes, and the
county’s duties to protect lives and property under such a declaration.
The situation presented to this office in Attorney General Opinion 9822 was a case of first impression and involved Citrus County’s attempt
to keep private roads passable by supplying assistance to subdivision
residents who had requested county assistance in the form of culverts,
fill dirt, equipment, and manpower to keep these roads and streets
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open. In light of the local declaration of emergency and the specific
terms of section 252.38, Florida Statutes, this office concluded that
Citrus County was statutorily authorized to use county funds to keep
private roads passable during a declared state of emergency.
Part I of Chapter 252, Florida Statutes, is the “State Emergency
Management Act.”4 The Legislature expressed its intent for the
adoption of the act in part as follows:
It is the intent of the Legislature to reduce the vulnerability
of the people and property of this state; to prepare for efficient
evacuation and shelter of threatened or affected persons; to
provide for the rapid and orderly provision of relief to persons
and for the restoration of services and property; and to
provide for the coordination of activities relating to emergency
preparedness, response, recovery, and mitigation among
and between agencies and officials of this state, with similar
agencies and officials of other states, with local and federal
governments, with interstate organizations, and with the
private sector.
Pursuant to section 252.34(4)(c), Florida Statutes, specific emergency
management responsibilities include “[r]esponse to emergencies using
all systems, plans, and resources necessary to preserve adequately
the health, safety, and welfare of persons or property affected by the
emergency.” More specifically, section 252.38(3)(a)1., Florida Statutes,
authorizes political subdivisions such as counties “[t]o appropriate
and expend funds [and to] provide for the health and safety of persons
and property . . . .” Further, a political subdivision, in carrying out its
emergency management powers, may “assign and make available for
duty the offices and agencies of the political subdivision, including the
employees, property, or equipment thereof relating to . . . transportation,
construction, and similar items or services for emergency operation
purposes . . . .”5 Again, all of these powers are tied to a declared state of
emergency under Part I, Chapter 252, Florida Statutes.
In exercising its emergency management powers, a county “has
the power and authority to waive the procedures and formalities
otherwise required of the political subdivision by law pertaining
to . . . [p]erformance of public work and taking whatever prudent action
is necessary to ensure the health, safety, and welfare of the community;”6
and the “[a]cquisition and distribution, with or without compensation
of supplies, materials, and facilities.”7 The county is also authorized
to suspend the usual procedures and formalities required for the
“[a]ppropriation and expenditure of public funds.”8
The “State Emergency Management Act” recognizes that
“[s]afeguarding the life and property of its citizens is an innate
responsibility of the governing body of each political subdivision of the
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state.”9 Thus, the Legislature has made a determination that, under
these extreme conditions, the safeguarding of private property and the
expenditure of public funds to do so does satisfy a public purpose.
In light of the broad language contained in the State Emergency
Management Act authorizing local governments to act to protect county
citizens and their property, it is my opinion that county resources may
be utilized in this effort and that Suwannee County may dedicate county
funds to the repair of washouts on private non-roadway property that
has been caused by water run-off related to a storm emergency. Further,
this statutory language would also appear to authorize the dedication
of public funds to the repair of sinkholes that may have appeared on
private property and impact public property. As my conclusion is
based on the extensive powers delegated to local governments under
the State Emergency Management Act, this authority would not extend
to the county in the absence of a declared local state of emergency. In
addition, the Suwannee County Commission must still independently
determine that these emergency repairs accomplish a valid public
purpose as is required in the State Emergency Management Act.10 As
this office noted in Attorney General Opinion 98-22, county funds may
be expended to repair private roads during an emergency declared
pursuant to section 252.38, Florida Statutes, “provided that the county
first makes appropriate legislative findings as to the purpose of the
expenditure and the benefits which would accrue to the county.”
QUESTION 2. – Entry onto Private Property
Both your first and second questions require consideration of
whether section 252.38, Florida Statutes, provides authorization for
local governmental agents to enter onto private property in order to
make emergency repairs. As you have provided me with no specifics
regarding the location of the property in question or the ownership of
any such property, my comments must be general in nature.
Section 252.38, Florida Statutes, provides for the emergency
management powers of political subdivisions. Section 252.38(3), Florida
Statutes, states that each political subdivision, in carrying out the
provisions of sections 252.31-252.90, Florida Statutes, has the power
and authority:
To request state assistance or invoke emergency related mutual
aid assistance by declaring a state of local emergency in the
event of an emergency affecting only one political subdivision.
The duration of each state of emergency declared locally is
limited to 7 days; it may be extended, as necessary, in 7 day
increments. Further, the political subdivision has the power
and authority to waive the procedures and formalities otherwise
required of the political subdivision by law pertaining to:
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a. Performance of public work and taking whatever prudent
action is necessary to ensure the health, safety, and welfare of
the community.
b.
Entering into contracts.
c.
Incurring obligations.
d.
Employment of permanent and temporary workers.
e.
Utilization of volunteer workers.
f.
Rental of equipment.
g. Acquisition and distribution, with or without compensation,
of supplies, materials, and facilities.
h.
Appropriation and expenditure of public funds.
Thus, the Legislature has granted local governments broad powers
to deal with declared states of emergency by utilizing public resources.
However, despite the broad powers granted, the entry onto private
property by governmental agents presents several potential problems
for governmental entities and agents.
Under common law theory, every man’s land is deemed to be enclosed
so that every entry thereon is, except by consent, a trespass.11 The basis
of the wrong lies in the disturbance of possession. This disturbance
of possession may result from such acts as the unauthorized cutting
and removal of trees12 or the digging of a trench to carry utility pipes
without having a right-of-way.13
As described in Florida’s statutes relating to burglary and trespass,
section 810.09, Florida Statutes, a person who enters upon or remains
in any property other than a structure or conveyance14 without
authorization may commit the offence of trespass on property other
than a structure or conveyance. Trespass on property other than a
structure or conveyance is a first degree misdemeanor. Thus, a local
government might well be concerned that its agent’s unauthorized
entry onto private property either to retrieve public property or to
perform repairs could subject both the agency and the agent to liability
and criminal prosecution.
In light of possible trespass concerns, this office would suggest,
should the Suwannee County Commission determine to commit county
manpower to the repair of sinkholes and non-roadway property which
affect public property, that the county secure consents15 from the
landowners of such private property to enter and remain on the property
while performing such emergency repairs or retrieving county property.
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See Art. VII, s. 1, Fla. Const., which by implication limits the imposition
of taxes and the expenditure of tax revenue to public purposes.
1
See Op. Att’y Gen. Fla. 73-222 (1973) and Collins v. Jackson County,
156 So. 2d 24 (Fla. 1st DCA 1963) (county not authorized to expend funds
to maintain municipal roads which have not been designated as county
roads).
2
See Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966); Collins
v. Jackson County, supra; Ops. Att’y Gen. Fla. 75-309 (1975) and 73-222
(1973).
3
4
Section 252.31, Fla. Stat., contains the short title.
5
Section 252.38(3)(a)4., Fla. Stat.
6
Section 252.38(3)(a)5.a., Fla. Stat.
7
Id. at 5.g.
8
Section 252.38(3)(a)5.h., Fla. Stat.
9
Section 252.38, Fla. Stat.
See Ops. Att’y Gen. Fla. 98-22 (1998) and 88-52 (1988) (upon making
the appropriate findings that an expenditure of county funds for lobbying
serves a county purpose and is in the public interest, the board of county
commissioners may expend county funds for lobbying); 86-87 (1987)
and 74-227 (1974) (municipal funds may be used to support position on
annexation).
10
See Harris v. Baden, 17 So. 2d 608 (Fla. 1944), Leonard v. Nat Harrison
Associates, Inc., 122 So. 2d 432 (Fla. 2d DCA 1960).
11
National Rating Bureau, Inc. v. Florida Power Corp., 94 So. 2d 809
(Fla. 1956).
12
Okaloosa County Gas District v. Enzor, 101 So. 2d 406 (Fla. 1st DCA
1958).
13
14
The statute provides that it applies to a structure or conveyance:
1. As to which notice against entering or remaining is given,
either by actual communication to the offender or by posting,
fencing, or cultivation as described in s. 810.011; or
2. If the property is the unenclosed curtilage of a dwelling and
the offender enters or remains with the intent to commit an
offense thereon, other than the offense of trespass, commits
the offense of trespass on property other than a structure or
conveyance.
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Consent is an absolute defense to an action for trespass provided
the consent is given by the possessor of the land or one competent and
authorized to give such consent and provided further that the acts of the
party accused of the trespass do not exceed, or are not in conflict with, the
purposes for which such consent was given. See 55 Fla. Jur. 2d Trespass
s. 9; Florida Publishing Co. v. Fletcher, 340 So. 2d 914 (Fla. 1976), cert.
denied, 431 US 930, 53 L.Ed.2d 245, 97 S.Ct. 2634 (U.S. 1977); Florida
Power Corporation v. Parker, 370 So. 2d 45 (Fla. 1st DCA 1979), cert.
denied, 381 So. 2d 766 (Fla. 1980).
15
AGO 12-34 – September 19, 2012
SPECIAL DISTRICTS – COMPETITIVE BIDDING –
PROCUREMENT – WATER MANAGEMENT DISTRICTS
WHETHER WATER MANAGEMENT DISTRICT IS
AUTHORIZED TO ADOPT POLICY OF LOCAL PREFERENCE IN
PROCUREMENT OF GOODS AND SERVICES
To: Mr. George T. Reeves, Attorney, Suwannee River Water Management
District
QUESTION:
Is the Governing Board of the Suwannee River Water
Management District authorized to enact a policy granting
a local preference in the procurement of goods and services
to businesses which are located within the boundaries of the
Suwannee River Water Management District?1
SUMMARY:
The Suwannee River Water Management District is limited
to utilizing the procedures set forth in the statutes for the
procurement of goods and services including the Consultants’
Competitive Negotiation Act and has no authority to enact a
policy granting a local preference to businesses located within
the boundaries of the district except to the extent the district
can identify a statutory authorization for local preference
consideration.
The Suwannee River Water Management District is a multi-county
special taxing district created pursuant to section 373.069, Florida
Statutes,2 for the purpose of managing that geographical portion of
Florida’s water resources and managing those resources in a sustainable
manner.3 The district is recognized as an independent special district
by the Division of Community Development, Florida Department of
Economic Opportunity.4
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While established as an independent special district, the powers of a
water management district as an administrative agency are measured
by the terms of the act under which it is organized and it can exercise
no authority that has not clearly been granted to it by the Legislature
or which is necessarily implied from the powers conferred.5 Pursuant
to sections 373.113 and 373.171(1)(c), Florida Statutes, the governing
boards of water management districts are authorized to issue orders
and adopt rules to implement the provisions of the act. Further, the
governing board is authorized to provide for district works:
In order to carry out the works for the district, and for
effectuating the purposes of this chapter, the governing board
is authorized to clean out, straighten, enlarge, or change
the course of any waterway, natural or artificial, within or
without the district; to provide such canals, levees, dikes,
dams, sluiceways, reservoirs, holding basins, floodways,
pumping stations, bridges, highways, and other works and
facilities which the board may deem necessary; to establish,
maintain, and regulate water levels in all canals, lakes, rivers,
channels, reservoirs, streams, or other bodies of water owned
or maintained by the district; to cross any highway or railway
with works of the district and to hold, control, and acquire by
donation, lease, or purchase, or to condemn any land, public or
private, needed for rights of way or other purposes, and may
remove any building or other obstruction necessary for the
construction, maintenance, and operation of the works; and to
hold and have full control over the works and rights of way of
the district.
Among the general powers and duties of the governing board of a
water management district is the power to enter into contracts.6
It is the general rule with regard to competitive bidding by public
agencies that, in the absence of any legislative requirements regarding
the method of awarding public contracts, public officers may exercise
reasonable discretion, and a contract may be made by any practicable
method that will safeguard the public interest.7 You have not specified
the types of goods and services to which the water management district’s
proposed policy may apply; however, the Florida Statutes contain
extensive direction to special districts regarding bidding procedures
for contractual services, goods and commodities, and personal property
which would control and which contain local preference provisions upon
which the district must rely.
The statutory directives requiring special districts to competitively
award contracts for public construction projects are contained in sections
255.20 and 287.055, Florida Statutes. Section 255.20, Florida Statutes,
requires counties, municipalities, special districts as defined in chapter
189, or other political subdivisions8 of the state that are seeking to
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construct or improve public construction works to competitively award
these projects.9 Such projects must be competitively awarded to a
licensed contractor when the project is estimated to have construction
costs of more than $300,000. The term “competitively award” is defined
to mean “to award contracts based on the submission of sealed bids,
proposals submitted in response to a request for proposal, proposals
submitted in response to a request for qualifications, or proposals
submitted for competitive negotiation.”10
The statute expressly
allows contracts for construction management services, design/build
contracts, continuation contracts based on unit prices, “and any other
contract arrangement with a private sector contractor permitted by any
applicable municipal or county ordinance, by district resolution, or by
state law.”11 Exceptions to the statute are recognized for emergency
situations.12
Section 255.20, Florida Statutes, making provision for letting contracts
for certain public projects, contains a local preference requirement in
subsection (3):
All county officials, boards of county commissioners, school
boards, city councils, city commissioners, and all other public
officers of state boards or commissions that are charged with
the letting of contracts for public work, for the construction of
public bridges, buildings, and other structures must specify
lumber, timber, and other forest products produced and
manufactured in this state if such products are available and
their price, fitness, and quality are equal. This subsection
does not apply to plywood specified for monolithic concrete
forms, if the structural or service requirements for timber for
a particular job cannot be supplied by native species, or if the
construction is financed in whole or in part from federal funds
with the requirement that there be no restrictions as to species
or place of manufacture.
This statute also makes reference to local preference legislation, i.e.,
“[t]his subsection does not preempt the requirements of any smallbusiness or disadvantaged-business enterprise program or any localpreference ordinance.” However, as discussed more fully herein, special
districts, as limited purpose local governmental entities, have no home
rule power to adopt ordinances.
The Consultants’ Competitive Negotiation Act (CCNA), section
287.055, Florida Statutes, applies to political subdivisions13 such as the
Suwannee River Water Management District and requires that certain
professional services be acquired utilizing the competitive selection
procedures set forth in the statute. The statute includes procedures
for competitive selection and, in subsection (4)(b) sets forth the factors
an agency may consider in determining whether a firm is qualified to
perform the required services:
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In determining whether a firm is qualified, the agency shall
consider such factors as the ability of professional personnel;
whether a firm is a certified minority business enterprise; past
performance; willingness to meet time and budget requirements;
location; recent, current, and projected workloads of the firms;
and the volume of work previously awarded to each firm by the
agency, with the object of effecting an equitable distribution
of contracts among qualified firms, provided such distribution
does not violate the principle of selection of the most highly
qualified firms. (e.s.)
Thus, the location of a firm may be considered by the agency in
evaluating qualifications to perform the services under the CCNA.
The Suwannee River Water Management District is also subject
to the provisions of section 287.084, Florida Statutes, which provides
preference to Florida businesses in the purchasing of personal property:
(1)(a) When an agency, university, college, school district, or
other political subdivision of the state is required to make
purchases of personal property through competitive solicitation
and the lowest responsible and responsive bid, proposal, or
reply is by a vendor whose principal place of business is in a
state or political subdivision thereof which grants a preference
for the purchase of such personal property to a person whose
principal place of business is in such state, then the agency,
university, college, school district, or other political subdivision
of this state shall award a preference to the lowest responsible
and responsive vendor having a principal place of business
within this state, which preference is equal to the preference
granted by the state or political subdivision thereof in which
the lowest responsible and responsive vendor has its principal
place of business. In a competitive solicitation in which the
lowest bid is submitted by a vendor whose principal place of
business is located outside the state and that state does not
grant a preference in competitive solicitation to vendors having
a principal place of business in that state, the preference to the
lowest responsible and responsive vendor having a principal
place of business in this state shall be 5 percent.
Section 287.082, Florida Statutes, provides that commodities
manufactured, grown, or produced in Florida are to be given preference
in the sealed bidding process.
While this office has, on several occasions, recognized the authority
of local governments to adopt ordinances or regulations establishing a
local preference for procurement of goods and services, these opinions
have related to the authority of local governments with home rule
powers such as municipalities, counties, and, to a limited extent, school
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districts.14 Unlike counties or municipalities which have been granted
home rule powers, special districts possess no inherent or home rule
powers. Created by statute for a specific, limited purpose, the Suwannee
River Water Management District may exercise only such power and
authority as it has been granted by law. Thus, when presented with
the issue of the authority of a water management district to adopt
alternative or “hybrid” procedures for such things as public construction
projects, this office has concluded that no such authority exists in the
absence of statutory authority.15
In sum, it is my opinion that the Suwannee River Water Management
District is limited to utilizing the procedures set forth in the statutes
for the procurement of goods and services and has no authority to enact
a policy granting a local preference to businesses located within the
boundaries of the district except to the extent the district can identify a
statutory authorization for local preference consideration.
I note that you have asked a second question premised on an
affirmative response to your first question (set out above). In light of my
response to your initial question, no consideration of your second question
is necessary.
1
2
See s. 373.069(1)(b), Fla. Stat.
Section 373.016, Fla. Stat., provides the declaration of policy for the
“Florida Water Resources Act of 1972,” i.e., Ch. 373, Fla. Stat.
3
See Suwannee River Water Management District, Official List of
Special Districts Online, Division of Community Development, Florida
Department of Economic Opportunity.
4
See Florida Elections Commission v. Davis, 44 So. 3d 1211 (Fla. 1st
DCA 2010), State ex rel. Greenberg v. Florida State Board of Dentistry,
297 So. 2d 628 (Fla. 1st DCA 1974), and e.g., Op. Att’y Gen. Fla. 0802 (2008). Cf. Forbes Pioneer Boat Line v. Board of Commissioners of
Everglades Drainage District, 82 So. 2d 346 (Fla. 1919); Ops. Att’y Gen.
Fla. 80-55 (1980), 83-44 (1983), and 74-169 (1974), recognizing that
special districts possess only such powers as have been expressly granted
by law or necessarily implied therefrom.
5
6
See s. 373.083(1), Fla. Stat.
See, e.g., Ops. Att’y Gen. Fla. 93-28 (1993) and 93-83 (1993) and the
cases cited therein.
7
See s. 1.01(8), Fla. Stat., defining “political subdivision” to include “all
other districts in this state.”
8
9
Section 255.20(1), Fla. Stat.
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10
Section 255.20(1), Fla. Stat.
11
Id.
12
Section 255.20(1)(c)1., Fla. Stat.
12-35
The definition of “[a]gency” for purposes of the CCNA includes “a
political subdivision” and, as discussed herein, the definition of “political
subdivision” includes special districts. See n.8 supra.
13
See Ops. Att’y Gen. Fla. 02-03 (2002) and 01-65 (2001), discussing
school boards and competitive bidding; Inf. Op. to the Hon. Dana Young,
dated August 24, 2011, and Inf. Op. to the Hon. John Tobia, dated
December 1, 2010, discussing local governments and local preference
legislation generally; and see City of Port Orange v. Leechase Corp., 430
So. 2d 534 (Fla. 5th DCA 1983) (legality of municipal bidding ordinance
giving a local preference to bidders with principal place of business within
municipality).
14
See Op. Att’y Gen. Fla. 11-21 (2011), concluding that the Southwest
Florida Water Management District is limited to utilizing the procedures
set forth in the statutes for public construction works and for construction
management services and that the district has no authority to develop
a “hybrid” model for awarding construction projects in the absence of
statutory authority to do so.
15
AGO 12-35 – November 15, 2012
DUAL OFFICE-HOLDING – SPECIAL DISTRICTS – HOUSING
AUTHORITIES – HOUSING FINANCE AUTHORITIES –
DEPENDENT SPECIAL DISTRICTS – MUNICIPALITIES
HOUSING AUTHORITY AND HOUSING FINANCE AUTHORITY
MEMBERS AS OFFICERS FOR PURPOSES OF DUAL OFFICEHOLDING PROHIBITION
To: The Honorable Ira J. Raab (Retired), Justice, New York State
Supreme Court
QUESTION:
Does simultaneous service on the West Palm Beach Housing
Authority and the Housing Finance Authority of Palm Beach
County violate the dual office-holding prohibition of the Florida
Constitution?
SUMMARY:
Simultaneous service on the West Palm Beach Housing
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Authority and the Housing Finance Authority of Palm Beach
County would violate the dual office-holding prohibition of
the Florida Constitution as service on either of these would
represent holding an office within the scope of Article II, section
5(a), Florida Constitution.
According to your letter, you have been appointed to the West Palm
Beach Housing Authority and the Housing Finance Authority of Palm
Beach County, but have not accepted either appointment. You are
concerned that simultaneous service on both agencies may violate
Florida’s constitutional dual office-holding prohibition contained
in Article II, section 5(a), Florida Constitution, and have requested
direction from this office.
Article II, section 5(a), Florida Constitution, provides that:
No person shall hold at the same time more than one office under
the government of the state and the counties and municipalities
therein, except that a notary public or military officer may hold
another office, and any officer may be a member of a constitution
revision commission, . . . constitutional convention, or statutory
body having only advisory powers.
This provision of the Florida Constitution prohibits a person from
simultaneously holding more than one “office” under the state, county,
or municipal governments and applies to both elected and appointed
offices.1
The Constitution does not contain a definition of the terms “office” or
“officer” for purposes of the dual office holding prohibition. However,
Florida courts and this office have advised that it is the nature of the
powers and duties of a particular position that determines whether it is
an “office” within the scope of the dual office holding prohibition or an
“employment” outside the scope of the provision.2 The Florida Supreme
Court has stated that an office “implies a delegation of a portion of the
sovereign power to, and the possession of it by, the person filling the
office[.]”3 The term “office” encompasses the idea of tenure, duration,
and duties in exercising a portion of the sovereign power, conferred
or defined by law and not by contract, whereas an “employment” does
not “comprehend a delegation of any part of the sovereign power.”4
Unquestionably service on the governing body of a governmental entity,
such as a city or county, constitutes an office.5 The issue for resolution
here is whether your simultaneous service by appointment to the Palm
Beach County Housing Finance Authority and the West Palm Beach
Housing Authority represents an appointment to office which violates
the dual office-holding prohibition of the Florida Constitution.
The dual office-holding prohibition refers only to state, county, and
municipal offices. It is not applicable to independent special district
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12-35
officers serving on governmental entities created by law to perform
a special and limited governmental function. The Florida Attorney
General’s Office has concluded that there was no violation of the dual
office-holding prohibition when a state, county, or municipal officer also
served as an officer of an independent special district.6 In a Florida
Supreme Court advisory opinion from 1994, the Court reiterated that
special district officers are not included within the dual office-holding
prohibition. In In re Advisory Opinion to the Governor – Dual OfficeHolding,7 the Court concluded that a member of a community college
district board of trustees was an officer of a special district created to
perform the special governmental function of operating a community
college and was not a state, municipal, or county officer within the
meaning of Article II, section 5(a), Florida Constitution. Thus, this
office concluded that the dual office-holding prohibition did not keep a
state, county, or municipal officer from serving on a community college
board of trustees.
Although membership on the board of trustees of a community
college district was determined to constitute a special district office
and thus to be outside the parameters of Article II, section 5(a), Florida
Constitution, the Florida Supreme Court in In re Advisory Opinion to
the Governor – School Board Member – Suspension Authority8 rejected
the designation of school board members as district officers. In that
case, the Governor had requested that the Court determine whether
school board members could be suspended under the constitutional
provisions governing county officers or whether a suspension should
be accomplished under the statutory provisions governing district
officers. The Court concluded that school board members are county
officers who have equivalent powers and authority to that of county
commission members although their power is exercised in different
local governmental spheres. As county officers, therefore, school board
members are precluded from simultaneously holding another state,
county, or municipal office.
The Supreme Court was advised that the Florida Attorney General’s
Office had previously considered school board members to be special
district officers and outside the scope of Article II, section 5(a) of the
Florida Constitution. Thus, a determination by the Court that school
board members were county officers could result in potential dual
office-holding violations for school board members who had relied on
previously issued Attorney General Opinions. In response, the Court
held that “[w]ith regard to those individuals who may be holding dual
offices because of the attorney general’s opinion 84-73, we conclude that
this [i.e., the Court’s] opinion should be prospective in application. This
prospective application should apply only until such time as the term of
one of the dual offices expires.”9
In light of the Florida Supreme Court’s approach to the determination
of an office, this office has cautioned that the nature and character of
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a district or authority must be reviewed to determine whether the
governmental entity is an agency of the state, county or municipality so
that its officers may be considered state, county or municipal officers for
purposes of dual office-holding. In a situation very like the one you have
presented, this office, in Attorney General Opinion 84-90, considered
whether a member of the Volusia County Health Facilities Authority
was a county officer. Although the health facilities authority was
created and organized under Part III, Chapter 154, Florida Statutes, as
a public body corporate and politic, it was created by county ordinance
or resolution following a finding of necessity by the local governing body.
The Volusia County governing body appointed the authority members,
could exercise the power to remove the members, and was authorized
to abolish the authority at any time. This office concluded under these
facts that the authority was an instrumentality of the county and
that its officers were actually county officers. Thus, the constitutional
prohibition against dual office-holding precluded the mayor from also
serving on the governing body of the county health facilities authority.
Similarly, in Attorney General Opinion 08-61, this office concluded
that membership on the Volusia Growth Management Commission
constituted an office for purposes of the constitutional dual office-holding
prohibition. The commission was designated a dependent special
district and was created by county charter to review comprehensive
plan amendments. The council’s budget was approved and funded by
the county. The commission was made up of voting members appointed
by the municipalities located within the county as well as by the county
and included nonvoting members appointed by a number of other
governmental entities. The commission’s determinations of consistency
were binding on the submitting governmental agency and actions of
the council appeared to this office to be an exercise of the sovereign
powers of the state. The opinion concluded that the Volusia Growth
Management Commission appeared to be a part of county government
and its members would be county officers.10
The Housing Finance Authority of Palm Beach County (the authority)
is designated a dependent special district by the Division of Community
Development.11 Information supplied to the division by the authority
indicates that Palm Beach County is the local governing authority
which appoints the members of the authority.12 Enabling documents for
the housing finance authority are a series of county ordinances.13 The
“Florida Housing Finance Authority Law,” Part IV, Chapter 159, Florida
Statutes, provides statutory authority for this entity and indicates that
the purpose for adoption of Part IV, Chapter 159, Florida Statutes, is
[t]he financing, acquisition, construction, reconstruction, and
rehabilitation of housing and of the real and personal property
and other facilities necessary, incidental, and appurtenant
thereto are exclusively public uses and purposes for which
public money may be spent, advanced, loaned, or granted and
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12-35
are governmental functions of public concern.14
In addition, in its “finding and declaration of necessity” for adoption of
this legislation, the statute states that “[t]he Congress of the United
States has . . . found and determined that housing may be financed by
means of obligations issued by any state or local governmental unit . . .
and has thereby provided a method to aid state and local governmental
units to provide assistance to meet the need for housing.”15 The law
specifically provides that
[t]he county for which the housing finance authority is created
may, at its sole discretion, and at any time, alter or change
the structure, organization, programs, or activities of any
housing finance authority, including the power to terminate
such authority, subject to any limitation on the impairment
of contracts entered into by such authority and subject to the
limitations or requirements of this act.16
Among the powers of each housing finance authority is the power to
“[c]reate or assist in creating corporations that qualify as not for profit
corporations under s. 501(c)(3) of Internal Revenue Code of 1986, as
amended, and under the laws of this state, and that are engaged in
acquiring, constructing, reconstructing, or rehabilitating qualifying
housing developments.”17 The authority itself is legislatively declared to
“constitute a public body corporate and politic, exercising the public and
essential governmental functions” described in the act.18 The authority
can sue and be sued;19 own real and personal property;20 borrow money
through the issuance of bonds;21 and purchase or make loans and take
assignments of mortgage loans and promissory notes.22 County housing
authorities can also “own, maintain, operate, control, and capitalize a
limited purpose savings and loan association to provide low cost loans
and related services to eligible persons to obtain affordable housing[;]”23
and make loans or grant surplus funds of the authority to corporations
that qualify as not for profit corporations to support the development of
affordable housing.24 Authorities are authorized to issue revenue bonds
and may issue refunding bonds to pay, retire, or refund the bonds issued
by another housing finance authority.25
Based on the substantial powers and duties imposed on a county
housing finance authority set forth in Part IV, Chapter 159, Florida
Statutes, as well as the county’s role in appointing its members and
enacting ordinances controlling the actions of such an authority, it is my
opinion that a member of the Housing Finance Authority of Palm Beach
County is a county officer for purposes of Florida’s dual office holding
prohibition.26
Similarly, the West Palm Beach Housing Authority is designated a
dependent district under the control of the City of West Palm Beach. The
housing authority is created pursuant to Part I, Chapter 421, Florida
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Statutes, by approval of a city resolution. The purpose of Florida’s
“Housing Authorities Law,” Part I, Chapter 421, Florida Statutes, is to
address the existence of unsanitary or unsafe dwelling accommodations
for low income Floridians through
[t]he clearance, replanning and reconstruction of the areas in
which insanitary or unsafe housing conditions exist and the
providing of safe and sanitary dwelling accommodations for
persons of low income, including the acquisition by a housing
authority of property to be used for or in connection with
housing projects or appurtenant thereto, are exclusively public
uses and purposes for which public money may be spent and
private property acquired and are governmental functions of
public concern.27
Housing authorities are constituted by the Legislature as public
bodies corporate and politic.28 Commissioners of a municipal housing
authority are appointed by the mayor of the controlling municipality
with the approval of the governing body.29 Commissioners may be
removed by the mayor “[f]or inefficiency or neglect of duty or misconduct
in office[.]”30
Among the powers extended to a municipal housing authority by
Part I, Chapter 421, Florida Statutes, is the power to invest funds and
issue bonds;31 to prepare, carry out, acquire, lease, and operate housing
projects;32 to lease or rent houses, lands, buildings, or structures
“embraced in any housing project” and to establish rents for those
properties.33 A housing authority is also authorized within its area of
operation to investigate living conditions and housing conditions for
purposes of improving these conditions and can conduct examinations
and investigations and issue subpoenas.34 The statutes authorize
a housing authority to create for-profit or not-for-profit corporations,
limited liability companies, or other similar business entities in which
the housing authority may hold an ownership interest.35
Recognizing the substantial powers and duties exercised by a
commissioner of a municipal housing authority under Part I, Chapter
421, Florida Statutes, and the relationship of these entities to the
municipality, it is my opinion that the commissioners of a municipal
housing authority are municipal officers and subject to the dual
office-holding prohibition set forth in Article II, section 5(a), Florida
Constitution.36
Thus, in answer to your question, it is my opinion that simultaneous
service on the West Palm Beach Housing Authority and the Housing
Finance Authority of Palm Beach County would violate the dual officeholding prohibition of the Florida Constitution as service on both of
these would represent holding dual offices within the scope of Article II,
section 5(a), Florida Constitution.
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See, e.g., Ops. Att’y Gen. Fla. 69-2 (1969), 80-97 (1980), 94-66 (1994),
and 08-15 (2008).
1
See State ex rel. Holloway v. Sheats, 83 So. 508 (Fla. 1919); Ops. Att’y
Gen. Fla. 99-34 (1999) (membership on the Florida State Fair Authority
constitutes an office for purposes of Art. II, s. 5[a], Fla. Const.) and 91-80
(1991) (insurance fraud investigator is “office” for purposes of dual office
holding prohibition).
2
State ex rel. Holloway v. Sheats, id. at 509 (term “office” embraces
the idea of tenure, duration, and duties in exercising some portion of
the sovereign power, conferred or defined by law and not by contract;
and employment does not authorize the exercise in one’s own right of
any sovereign power or any prescribed independent authority of a
governmental nature). See also State ex rel. Clyatt v. Hocker, 22 So. 721
(Fla. 1897).
3
4
Id.
5
See Ops. Att’y Gen. Fla. 72-348 (1972) and 74-73 (1974).
See, e.g., Ops. Att’y Gen. Fla. 08-06 (2008) (mosquito control district);
02-49 (2002); 02-83 (2002) (water control district); and 02-22 (2002) (fire
protection district).
6
7
630 So. 2d 1055, 1058 (Fla. 1994).
8
626 So. 2d 684 (Fla. 1993).
9
Id. at 690.
And see Op. Att’y Gen. Fla. 91-79 (1991) (Fort Walton Beach Area Bridge
Authority, dependent special district within the county, determined to be
an instrumentality of the county for dual office holding purposes). Cf.
Op. Att’y Gen. Fla. 90-91 (1990), concluding that the Hillsborough County
Hospital Authority, created by special act with all powers of a body
corporate, whose members are appointed by the Hillsborough County
Commission which possesses the power to fill vacancies on the authority,
remove members for misfeasance, malfeasance or willful neglect of duty,
and approve the authority’s budget, was a county agency. And see Inf.
Op. to the Honorable Bob Starks, dated March 25, 1997, stating that the
Sanford Airport Authority, created by special act of the Legislature as a
dependent special district to the municipality, was an agency of the city
and thus subject to the dual office holding prohibition.
10
See Division of Community Development Special District Information
Program, Official List of Special Districts Online.
11
And see s. 159.605(1), Fla. Stat. Enabling documents for the housing
finance authority are a series of county ordinances.
12
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See Palm Beach County Ordinances 79-3, 91-7, 98-53, 01-016, and 0222.
13
14
Section 159.602(3), Fla. Stat.
15
Section 159.602(4), Fla. Stat.
16
Section 159.604(3), Fla. Stat.
17
Section 159.605(2)(b)4., Fla. Stat.
18
Section 159.608, Fla. Stat.
19
Section 159.608(1), Fla. Stat.
20
Id. at (2).
21
Section 159.608(4), Fla. Stat
Section 159.608(3), Fla. Stat. And see Ops. Att’y Gen. Fla. 09-17 (2009)
(Housing Finance Authority of Palm Beach County may loan funds to for
profit developers for development of qualifying housing or construction,
purchase, reconstruction, or rehabilitation of qualifying housing under
provisions of Part IV, Ch. 159, Fla. Stat., if such housing fulfills purposes
of the act) and 00-14 (2000) (Housing Finance Authority of St. Johns
County authorized by s. 159.608[3], Fla. Stat., to make mortgage loans
to individuals for purchase of qualifying housing developments, such
as a small apartment complex to be rented to low income families or
individuals).
22
Section 159.608(9), Fla. Stat. But see Op. Att’y Gen. Fla. 90-64
(1990) (housing authorities created pursuant to Ch. 159, Fla. Stat., not
authorized to establish, wholly own, and operate state chartered savings
bank).
23
24
Section 159.608(10)(a), Fla. Stat.
Section 159.612(1), Fla. Stat. And see Op. Att’y Gen. Fla. 96-73 (1996)
(Housing Finance Authority of Monroe County is an agency or subdivision
of state and, as agency that may employ professional service consultants,
it falls within scope of Consultants’ Competitive Negotiation Act and
must follow requirements of that act when developing real property;
further, authority must comply with s. 255.20, Fla. Stat., in those cases
where authority owns the public building, structure, or other public
construction work).
25
26
And see Op. Att’y Gen. Fla. 09-48 (2009).
27
Section 421.02(3), Fla. Stat.
28
Section 421.08, Fla. Stat.
29
Section 421.05(1), Fla. Stat.
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30
Section 421.07, Fla. Stat.
31
Section 421.08(5), Fla. Stat.
32
Id. at (2).
33
Section 421.08(4), Fla. Stat.
34
Id. at (6) and (7).
35
Section 421.08(8)(a), Fla. Stat.
12-36
36
Compare Op. Att’y Gen. Fla. 99-49 (1999), in which this office advised
that a commissioner of a county housing authority, appointed by the
Governor and subject to removal by the Governor “in the same manner
and for the same reasons as other officers appointed by the Governor,”
was not subject to the dual office-holding prohibition as he or she was an
officer of an independent special district; and compare Op. Att’y Gen. Fla.
96-73 (1996) (Housing Finance Authority of Monroe County is an agency
or subdivision of state and, as agency that may employ professional service
consultants, it falls within scope of Consultants’ Competitive Negotiation
Act and must follow requirements of that act when developing real
property; further, authority must comply with s. 255.20, Fla. Stat., in
those cases where authority owns the public building, structure, or other
public construction work).
AGO 12-36 – November 15, 2012
ECONOMIC DEVELOPMENT AGENCIES – AIRPORT
AUTHORITIES – COUNTIES – MUNICIPALITIES – PUBLIC
RECORDS
WHETHER AVIATION AUTHORITY IS AN ECONOMIC
DEVELOPMENT AGENCY
To: Mr. Douglas N. Burnett, General Counsel, St. Augustine - St. Johns
County Airport Authority
QUESTIONS:
1. Is the St. Augustine – St. Johns County Airport Authority
an “economic development agency” as defined in section
288.075, Florida Statutes?
2. If not, is the airport authority’s development activity
protected from public disclosure?
SUMMARY:
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The St. Augustine – St. Johns County Airport Authority is
not an “economic development agency” as defined in section
288.075, Florida Statutes, and, therefore, may not avail itself of
the confidentiality provisions provided within the statute.
You indicate that the St. Augustine – St. Johns County Airport
Authority (authority) is an independent special taxing district. The
authority’s charter is codified in Chapter 2002-347, Laws of Florida.
Pursuant to section 3(5) of the act, the authority is, among other things,
empowered to engage in the “promotion of aeronautical development.”
You question, therefore, whether the authority is an economic
development agency (EDA) which may avail itself of the confidentiality
provisions in section 288.075, Florida Statutes.
Section 288.075(1)(a), Florida
development agency” to mean:
1.
Statutes,
defines
“[e]conomic
The Department of Economic Opportunity;
2. Any industrial development authority created in accordance
with part III of chapter 159 or by special law;
3.
Space Florida created in part II of chapter 331;
4. The public economic development agency of a county or
municipality or, if the county or municipality does not have a
public economic development agency, the county or municipal
officers or employees assigned the duty to promote the general
business interests or industrial interests of that county or
municipality or the responsibilities related thereto;
5. Any research and development authority created in
accordance with part V of chapter 159; or
6. Any private agency, person, partnership, corporation, or
business entity when authorized by the state, a municipality, or
a county to promote the general business interests or industrial
interests of the state or that municipality or county.
This office has been advised that St. Johns County has established
an economic development agency.1 By the terms of paragraph 4 in
subsection (1)(a) of the statute, the authority would not be in a position
to be designated as the county’s economic development agency.
Section 288.075, Florida Statutes, makes certain records of a private
corporation, partnership, or person held by an EDA confidential and
exempt from section 119.07(1), Florida Statutes, and Article I, section
24(a), Florida Constitution.2 Pursuant to section 288.075(2)(a), Florida
Statutes,
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If a private corporation, partnership, or person requests in
writing before an economic incentive agreement is signed that
an economic development agency maintain the confidentiality
of information concerning plans, intentions, or interests of such
private corporation, partnership, or person to locate, relocate,
or expand any of its business activities in this state, the
information is confidential and exempt from s. 119.07(1) and s.
24(a), Art. I of the State Constitution for 12 months after the
date an economic development agency receives a request for
confidentiality or until the information is otherwise disclosed,
whichever occurs first.3
The Legislature’s designation of those entities which are considered
economic development agencies for purposes of section 288.075, Florida
Statutes, precludes any other entities from falling under the definition.4
Where a statute enumerates the things on which it is to operate, it is
ordinarily to be construed as excluding from its operation all things not
expressly mentioned therein.5 Moreover, exemptions from the public
records requirements of Chapter 119, Florida Statutes, are to be strictly
construed in light of the public purpose for adoption of the statute, i.e.,
to open public records to the state’s citizens to discover the actions of
their government.6
While you posit that the governing authorities of St. Johns County
or the City of St. Augustine would be authorized to designate the
authority as an economic development authority, section 288.075(1)
(a)6., Florida Statutes, the provision upon which you base your position,
relates to “private” agencies which may be authorized by the state,
county, or municipality to carry out economic development activities. It
does not appear, nor have you asserted, that the authority is a private
agency. Moreover, there is no indication in the authority’s enabling
legislation that the authority has been given the power to promote the
general business interests or industrial interests of the county or the
municipality.
Accordingly, it is my opinion that the St. Augustine – St. Johns
County Airport Authority does not fall within the definition of an
“economic development agency” as defined in section 288.075, Florida
Statutes, and, therefore, may not utilize the confidentiality provisions
set forth therein.
Ordinance No. 2011-39, St. Johns County Code of Ordinances, amending
Ordinance No. 2006-99, St. Johns County Code of Ordinances, recognizing
the establishment of the St. John County Economic Development Agency,
as defined in s. 288.075, Fla. Stat.
1
See s. 288.075(2), (3), (4), (5), and (6), Fla. Stat., making confidential
and exempt the following: plans, intentions, and interests; trade secrets;
2
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proprietary confidential business information; identification, account,
and registration numbers; and information regarding the administration
of an economic incentive program.
And see s. 288.075(2)(a)2., Fla. Stat., providing that an economic
development agency may extend the period of confidentiality for up to
an additional 12 months upon written request and upon a finding by the
economic development agency that the private corporation, partnership,
or person is still actively considering locating, relocating, or expanding its
business activities in this state. The request for an extension, however,
must be received prior to the expiration of any confidentiality originally
provided under this section.
3
See Op. Att’y Gen. Fla. 95-52 (1995) (community redevelopment
district not within the entities enumerated in s. 288.075, Fla. Stat., as an
economic development agency).
4
Ideal Farms Drainage District v. Certain Lands, 19 So. 2d 234 (Fla.
1944); Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla. 1952); Thayer v. State,
335 So. 2d 815 (Fla. 1976).
5
See Henderson v. State, 745 So. 2d 319, 324 (Fla. 1999); Christy v. Palm
Beach County Sheriff’s Office, 698 So. 2d 1365, 1366 (Fla. 4th DCA 1997);
citing City of Riviera Beach v. Barfield, 642 So. 2d 1135, 1136, (Fla. 4th
DCA 1994), review denied, 651 So. 2d 1192 (Fla. 1995).
6
AGO 12-37 – November 16, 2012
COMMUNICATIONS AND DATA PROCESSING – PRIMARY
DATA CENTER – BOARD OF TRUSTEES – MINORITIES –
MINORITY REPRESENTATION
WHETHER BOARD OF TRUSTEES OF PRIMARY DATA CENTER
IS “DECISIONMAKING AND REGULATORY BOARD” WITHIN
SCOPE OF STATUE AND MUST PROVIDE REPORTS
To: Mr. Gerard T. York, General Counsel Southwood Shared Resource
Center/Northwood Shared Resource Center
QUESTIONS:
1. Whether the board of trustees for the Northwood Shared
Resource Center and the Southwood Shared Resource Center
is the “appointing authority” for each of these primary data
centers?
2. Whether each of these primary data centers has reporting
obligations under section 760.80(8), Florida Statutes?
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SUMMARY:
1. The boards of trustees of the Northwood Shared Resource
Center and the Southwood Shared Resource Center are the
“appointing authority” for the “at-large” member of those
boards.
2. As an “appointing authority,” the boards of trustees of
the Northwood Shared Resource Center and the Southwood
Shared Resource Center appear to come within the scope of the
reporting requirement of section 760.80(8), Florida Statutes.
Section 760.80, Florida Statutes, was enacted in 1994 with the
expressed legislative intent
to recognize the importance of balance in the appointment
of minority and nonminority persons to membership on
statutorily created decisionmaking and regulatory boards,
commissions, councils, and committees, and to promote that
balance through the provisions of this section. In addition, the
Legislature recognizes the importance of including persons
with physical disabilities on such panels. Furthermore, the
Legislature recognizes that statutorily created decisionmaking
and regulatory boards, commissions, councils, and committees
play a vital role in shaping public policy for Florida, and the
selection of the best qualified candidates is the paramount
obligation of the appointing authority.1
The statute defines the term “minority person” to include African
Americans, Hispanic Americans, Asian Americans, Native Americans,
and women.2
Legislative history for CS/SB 340, enacted as Chapter 94-213, Laws
of Florida, recognizes that “[n]umerous boards, commissions, councils,
and committees are created by statute within the executive, legislative,
and judicial branches of government.” As examples of the types of
boards and commissions within the scope of the statute, the Legislature
identified the Board of Regents, the Public Service Commission, and the
Florida Parole Commission.3 As mentioned in the legislative history
for CS/SB 340, which would become section 760.80, Florida Statutes,
“[b]oards of trustees and commissions, by definition in ch. 20, F.S., are
generally decisionmaking and regulatory bodies . . . .”4
The statute requires that, when appointing members to any
statutorily created decisionmaking or regulatory board, commission,
council, or committee of the state, the appointing authority should select
those persons whose appointment will ensure that the membership of
the board accurately reflects the proportion that each minority group
represents in the state population represented by the board.5 The
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composition of local boards should reflect the population of the area
represented by the board as determined by the most recent federal
census.6 The statute provides:
If there are multiple appointing authorities for the board,
commission, council, or committee, they shall consult with each
other to ensure compliance with this section.7
The statute requires that each appointing authority submit a report to
the Secretary of State which reflects the number of appointments made
during the preceding year from each minority group and the number of
nonminority appointments in both numerical terms and as a percentage
of the total membership of the board.8 Each such report shall include
details on the number of physically disabled persons appointed to these
boards in the previous calendar year.9 The report is to be submitted
to the Governor, the Speaker of the House of Representatives, and
the President of the Senate.10 The appointing authority is charged
with designating “a person responsible for retaining all applications
for appointment, who shall ensure that information describing each
applicant’s race, ethnicity, gender, physical disability, if applicable, and
qualifications” is available for public inspection.11
Thus, section 760.80, Florida Statutes, establishes state policy with
respect to appointing members of statutorily-created decisionmaking
or regulatory boards, commissions, councils, and committees in a
manner that ensures proportionate minority representation on such
bodies.12 As a statutory scheme enacted in the public interest, section
760.80, Florida Statutes, is entitled to a liberal construction favoring a
construction which would accomplish its purpose.13
Part I, Chapter 282, Florida Statutes, is entitled the “Enterprise
Information Technology Services Management Act”.14 The Legislature’s
discussion of the purpose of the act is contained in section 282.201(1),
Florida Statutes:
The Legislature finds that the most efficient and effective means
of providing quality utility data processing services to state
agencies requires that computing resources be concentrated in
quality facilities that provide the proper security, infrastructure,
and staff resources to ensure that the state’s data is maintained
reliably and safely, and is recoverable in the event of a
disaster. Efficiencies resulting from such consolidation include
the increased ability to leverage technological expertise and
hardware and software capabilities; increased savings through
consolidated purchasing decisions; and the enhanced ability to
deploy technology improvements and implement new policies
consistently throughout the consolidated organization. Unless
otherwise exempt by law, it is the intent of the Legislature that
all agency data centers and computing facilities be consolidated
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into a primary data center by 2019.
To facilitate the provision of data processing services to state agencies,
a state data center system is created that includes all primary data
centers, other nonprimary data centers, and computing facilities. This
service is designed to provide an “enterprise information technology
service.”15
The Northwood Shared Resource Center and the Southwood Shared
Resource Center (the “centers”) are created in Part I, Ch. 282, Florida
Statutes, to facilitate the provision of data processing services to state
agencies. Both centers are primary data centers created pursuant to
section 282.203, Florida Statutes. For purposes of the act, a “[p]rimary
data center” is defined to mean “a data center that is a recipient entity
for consolidation of nonprimary data centers and computing facilities
and that is established by law.”16
The statutes creating both centers provide that each is “an agency
established within the Department of Management Services for
administrative purposes only.”17 Both sections 282.204 (Northwood
Shared Resource Center) and 282.205 (Southwood Shared Resource
Center) contain substantially similar enabling language:
(1) The center is a primary data center and is a separate budget
entity that is not subject to control, supervision, or direction of
the department in any manner, including, but not limited to,
purchasing, transactions involving real or personal property,
personnel, or budgetary matters.
(2) The center shall be headed by a board of trustees as provided
in s. 282.203, who shall comply with all requirements of that
section related to the operation of the center and with the rules
of the Agency for Enterprise Information Technology related to
the design and delivery of enterprise information technology
services.18 (e.s.)
Each primary data center is headed by a board of trustees as defined
in section 20.03, Florida Statutes. That statutory section provides:
“Board of trustees,” . . . means a board created by specific
statutory enactment and appointed to function adjunctively
to a department, the Governor, or the Executive Office of the
Governor to administer public property or a public program.19
The duties of the board are statutorily prescribed and include
the employment of an executive director to handle the day-to-day
operations of the primary data center; establishment of budgeting,
accounting, and operating procedures; providing customer entities with
information concerning plans for service requirements; approving a
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portfolio of services offered by the data center; coordination with other
primary data centers to consolidate purchases of goods and services to
lower costs; and to contract with other primary data centers or with
the agency within which the primary data center is housed to provide
administrative services.20 In the absence of legislative clarification
as to the scope of section 760.80, Florida Statutes, and the entities
subject thereto, I cannot state that the boards of trustees of primary
data centers do not constitute decisionmaking boards that would come
within the scope of section 760.80, Florida Statutes.
The members of the boards of trustees of primary data centers
are appointed by the agency head or chief executive officer of the
representative customer entities of the primary data center and serve
at the pleasure of the appointing customer entity.21 However, “[a] single
trustee . . . shall represent those customer entitles that represent less
than 4 percent of the total usage. The trustee shall be selected by a
process determined by the board.”22 Bylaws of the Southwood Shared
Resource Center and the Northwood Shared Resource Center provide
that this at-large position is selected by the other trustees.23 Thus, the
boards of trustees of these primary data centers are the appointing
authorities for the “at-large” trustee of the primary data centers.
Primary data centers are designated “agencies” for purposes of
accomplishing limited statutorily specific duties. A review of the
duties and responsibilities of the boards of trustees of primary data
centers suggests that the boards of trustees act as decisionmaking
and regulatory bodies for purposes of section 282.203, Florida Statutes,
and would fall within the intent of the Legislature to cover “boards of
trustees” subject to section 760.80, Florida Statutes. As the appointing
authority of a trustee pursuant to section 282.203(2)(a)4.e., Florida
Statutes, the boards of trustees would be subject to the reporting
requirements of section 760.80(4), Florida Statutes, for that trustee
as are the other appointing authorities for the other trustees of the
Northwood and Southwood Shared Resource Centers.
Thus, it is my opinion that the board of trustees of the Northwood
and Southwood Shared Resource Centers are “appointing authorities”
within the scope of section 760.80(4), Florida Statutes, for purposes
of the trustee each of these boards selects. In light of this conclusion,
the boards of directors of the Northwood Shared Resource Center and
the Southwood Shared Resource Center are subject to the reporting
requirements of section 760.80, Florida Statutes.
1
Section 760.80(1), Fla. Stat.
2
Section 760.80(2)(a) - (e), Fla. Stat.
3
See Senate Staff Analysis and Economic Impact Statement for CS/SB
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340, dated February 2, 1994.
4
Id.
5
Section 760.80(3), Fla. Stat.
6
Supra at n.5.
7
Id.
8
Section 760.80(4), Fla. Stat.
9
Id.
10
Id.
11
Id.
See Summary, Senate Staff Analysis and Economic Impact Statement
for CS/SB 340, dated February 2, 1994.
12
See Department of Environmental Regulation v. Goldring, 477 So. 2d
532 (Fla. 1985); Ideal Farms Drainage District v. Certain Lands, 19 So.
2d 234 (Fla. 1944); Wolfson v. State, 344 So. 2d 611 (Fla. 2d DCA 1977)
(statutes enacted for public benefit, such as public meetings or records
laws, should be construed liberally in favor of the public).
13
14
Section 282.003, Fla. Stat.
15
“Enterprise information technology service” is defined in s.
282.0041(11), Fla. Stat., to mean “an information technology service that
is used in all agencies or a subset of agencies and is established in law to
be designed, delivered, and managed at the enterprise level.”
16
Section 282.0041(17), Fla. Stat.
17
See ss. 282.204 and 282.205, Fla. Stat.
18
Section 282.204, Fla. Stat.
19
Section 282.203(12), Fla. Stat.
20
Section 282.203(3)(a)-(l), Fla. Stat.
21
Section 282.203(2)(a), Fla. Stat.
22
Section 282.203(2)(a)4.e., Fla. Stat.
See Art. I, s. 101(b), Southwood Shared Resource Center Bylaws, and
s. 2.2.1, Northwood Shared Resource Center Bylaws.
23
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AGO 12-38 – November 16, 2012
TOURIST DEVELOPMENT TAX – TAXATION – BEACHES –
BRIDGES – TRAILS – MULTI-USE PATHWAY
USE OF TOURIST DEVELOPMENT TAX FOR MULTI-USE
PATHWAY, BRIDGES, AND PURCHASE OF REAL PROPERTY
FOR PARKING FOR BEACH PARKS
To: The Honorable Scott A. Brannon, Chairman, Walton County Board
of County Commissioners
QUESTIONS:
1. May Tourist Development Tax proceeds be used to
maintain, repair, improve, and expand a multi-use pathway
which is part of the recreational network in the southern area
of Walton County along County Highway 30-A?
2. As part of the improvement of the multi-use pathway, may
Tourist Development Tax proceeds be used to build pedestrian
bridges to connect the multi-use pathway so as to not require
users of the pathway to travel onto the road surface when the
pathway crosses over water bodies?
3. May Tourist Development Tax proceeds be used to acquire
land and adjacent right-of-way which would be used to provide
public parking facilities to serve beach access areas and other
beach park facilities?
SUMMARY:
1. & 2.
The use of Walton County tourist development
tax revenues for the maintenance, repair, improvement and
expansion of a multi-use pathway used by tourists for biking,
hiking, walking and running which is part of the recreational
network of Walton County is permissible if these projects are
determined by the county to satisfy the statutory requirement
that they constitute an extension, enlargement, remodeling, or
improvement of a nature center. Because pedestrian bridges
over inland lakes and other water bodies would appear to serve as
extensions and improvements of the multi-use pathway, making
it safer and more useful, it is my opinion that the expenditure
of tourist development tax proceeds for such purposes is also
authorized by section 125.0104(5)(b), Florida Statutes, if the
county makes the appropriate findings.
3. Tourist development tax proceeds may be used by the
county to acquire land and adjacent rights-of-way to provide
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public parking facilities to serve beach access areas and other
beach park facilities upon making the appropriate legislative
findings.
Your letter states that Walton County has created the Walton
County Tourist Development Council as provided in section 125.0104,
Florida Statutes. The county has also, through various ordinances,
levied and collected the tourist development tax authorized by section
125.0104, Florida Statutes.
You have requested an opinion from this office concerning the authority
of the county to use the proceeds of these taxes for various proposed
uses. The specific uses related in your letter are for the maintenance,
repair, improvement and expansion of a multi-use pathway in the
South Walton County area and the acquisition of property and rightsof-way which would be used to provide public parking facilities to serve
beach access areas and other beach park facilities. The particular area
in which these improvements will be made is located in South Walton
County, adjacent to County Road 30-A. You state that this area includes
a high concentration of tourists who seek to utilize and enjoy the various
natural resources located within the county and in that area.
QUESTIONS 1. & 2.
You advise that Walton County has constructed an 18 mile multiuse pathway along County Road 30-A which is adjacent to state parks,
beaches, coastal dune lakes, coastal forests, and the Gulf of Mexico. The
multi-use pathway is widely used by tourists for biking, hiking, walking,
and running and generally provides access to the beach area and these
other nature attractions. As you note, an increasing number of visitors
to the South Walton area are bringing bicycles to take advantage of the
county’s network of multi-use pathways as part of their recreational
enjoyment on their vacation. The availability of the multi-use pathway
as a recreational amenity for tourists is promoted on Walton County’s
tourism website. You have asked whether Tourist Development Tax
proceeds may be used to maintain, repair, improve, and expand the
multi-use pathway as part of the county’s recreational network.
Section 125.0104, Florida Statutes, the Local Option Tourist
Development Act (the act), authorizes any county of this state to levy
and impose a “tourist development tax.”1 This office has previously
determined that the purpose of the act is to “provide for the advancement,
generation, growth and promotion of tourism, the enhancement of the
tourist industry, and the attraction of conventioneers and tourists
from within and without the state to a particular area or county of the
state.”2 Thus, the construction of publicly owned facilities financed by
the proceeds from a tourist development tax must be primarily related
to the advancement and promotion of tourism. The determination of
whether a particular facility or project is tourist related and primarily
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promotes such a purpose is a factual determination that must be made
by the governing body of the county. This factual determination must
be based on appropriate legislative findings and due consideration of
the peculiar and prevailing local conditions and needs.
The act sets forth the uses for which tourist development tax revenues
may be used in section 125.0104(5), Florida Statutes, which provides:
(a) All tax revenues received pursuant to this section by a
county imposing the tourist development tax shall be used by
that county for the following purposes only:
1. To acquire, construct, extend, enlarge, remodel, repair,
improve, maintain, operate, or promote one or more publicly
owned and operated convention centers, sports stadiums,
sports arenas, coliseums, auditoriums, aquariums, or museums
that are publicly owned and operated or owned and operated by
not for profit organizations and open to the public, within the
boundaries of the county or subcounty special taxing district in
which the tax is levied. Tax revenues received pursuant to this
section may also be used for promotion of zoological parks that
are publicly owned and operated or owned and operated by not
for profit organizations and open to the public. . . .
2. To promote and advertise tourism in the State of Florida
and nationally and internationally; . . . .
3. To fund convention bureaus, tourist bureaus, tourist
information centers, and news bureaus as county agencies or by
contract with the chambers of commerce or similar associations
in the county, . . . .
4. To finance beach park facilities or beach improvement,
maintenance, renourishment, restoration, and erosion control,
including shoreline protection, enhancement, cleanup, or
restoration of inland lakes and rivers to which there is public
access as those uses relate to the physical preservation of
the beach, shoreline, or inland lake or river. . . . In counties
of less than 100,000 population, no more than 10 percent of
the revenues from the tourist development tax may be used for
beach park facilities.3
(b) Tax revenues received pursuant to this section by a county
of less than 750,000 population imposing a tourist development
tax may only be used by that county for the following purposes in
addition to those purposes allowed pursuant to paragraph (a):
to acquire, construct, extend, enlarge, remodel, repair, improve,
maintain, operate, or promote one or more zoological parks,
fishing piers or nature centers which are publicly owned and
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12-38
operated or owned and operated by not for profit organizations
and open to the public. All population figures relating to
this subsection shall be based on the most recent population
estimates prepared pursuant to the provisions of s. 186.901.
These population estimates shall be those in effect on July 1 of
each year.4
*
*
*
(d) Any use of the local option tourist development tax revenues
collected pursuant to this section for a purpose not expressly
authorized by paragraph (3)(l) or paragraph (3)(n) or paragraph
(a), paragraph (b), or paragraph (c) of this subsection is expressly
prohibited. (e.s.)
Thus, the statute itself limits the collection and expenditure of
tourist development tax revenues to those purposes specifically set forth
therein.5
In Attorney General Opinion 94-12, this office determined that
expenditures from tourist development tax revenues for the acquisition
of a railway right-of-way and construction of a public recreational trail
would appear to be within the scope of expenditures authorized by
section 125.0104, Florida Statutes. The opinion considered the provision
in section 125.0104(5) allowing counties with a specified population to
use tourist development tax revenues “to acquire, construct, extend,
enlarge, remodel, repair, improve, maintain, operate, or promote one
or more zoological parks, fishing piers or nature centers which are
publicly owned and operated or owned and operated by not-for-profit
organizations and open to the public.”6 Relying on a general definition of
the term “nature center”7 and the use of that term along with zoological
parks and fishing piers, the opinion concludes that tourist development
tax revenues in counties with populations of less than 600,000 (now
750,000) persons could be used to acquire property for a project similar
to a nature trail or preserve open to the public.
The project you describe, an 18-mile multi-use pathway that has
been constructed along County Road 30-A adjacent to state parks,
beaches, coastal dune lakes, coastal forests, and the Gulf of Mexico
is comparable to the public recreational trail considered in Attorney
General Opinion 94-12. Like the county in the 1994 opinion, Walton
County has a population of less than 750,000 and may take advantage
of the additional purposes authorized in section 125.0104(5)(b), Florida
Statutes.8 The multi-use pathway is a recreational amenity for tourists
that is promoted on the county’s tourism website. It is used by tourists
for biking, hiking, walking, and running in addition to providing an
access point to nature activities and opportunities.
Thus, it appears that the expenditure of Walton County tourist
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development tax revenues for the maintenance, repair, improvement
and expansion of a multi-use pathway used by tourists for biking,
hiking, walking and running which is part of the recreational network
of Walton County is permissible if these projects are determined by
the county to satisfy the statutory requirement that they constitute
an extension, remodeling or improvement of a nature center. Because
pedestrian bridges over inland lakes and other water bodies would
appear to serve as extensions and improvements of the multi-use
pathway, making it safer and more useful, it is my opinion that the
expenditure of tourist development tax proceeds for such purposes is
also authorized by section 125.0104(5)(b), Florida Statutes, if the county
makes the appropriate legislative findings.
QUESTION 3.
You also ask whether Walton County may expend tourist development
tax revenues pursuant to section 125.0104(5), Florida Statutes, to
acquire land and adjacent rights-of way to provide public parking
facilities to serve beach access areas and other beach park facilities.
Section 125.0104(5)(a)4., Florida Statutes, provides
authorization for the use of tourist development tax funds
specific
[t]o finance beach park facilities or beach improvement,
maintenance, renourishment, restoration, and erosion control,
including shoreline protection, enhancement, cleanup, or
restoration of inland lakes and rivers to which there is public
access as those uses relate to the physical preservation of
the beach, shoreline, or inland lake or river. . . . In counties
of less than 100,000 population, no more than 10 percent of
the revenues from the tourist development tax may be used for
beach park facilities.
Prior to its amendment in 1996, section 125.0104(5)(a)4., Florida
Statutes, authorized the use of tourist development tax funds:
To finance beach improvement, maintenance, renourishment,
restoration, and erosion control, including shoreline protection,
enhancement, cleanup, or restoration of inland lakes and rivers
to which there is public access.
Based on this more limited language, this office, in Attorney General
Opinion 91-62, determined that the statute did not authorize the
use of these tax funds for “beach facilities” such as parking facilities
or boat ramps.9 Attorney General Opinion 90-55 considered whether
the language of the statue would authorize the construction of
artificial structures, such as sanitary facilities, upon the beach. That
opinion concluded that the terms “beach improvement, maintenance,
renourishment, restoration, and erosion control” related to the actual,
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12-38
physical nature of the beach rather than authorizing the construction
of artificial structures upon the beach or authorizing other activities
which did not protect or enhance the physical nature of the beach.
However, in 1996, the Legislature amended this statute to include the
financing of “beach park facilities,”10 thus clearly authorizing the use of
tourist development tax funds for the construction of certain “facilities.”
A review of the definition of this term indicates that such things as
public parking facilities may well come within the scope of the statute.
The word “facility” is defined as “something designed, built, installed,
etc., to serve a specific function affording a convenience or service. . . .”11
Attorney General Opinion 97-48 considered whether a county could
use tourist development tax dollars to construct an artificial reef to
provide diving and snorkeling opportunities in waters bordering the
county. Information provided with the opinion request suggested that
the proposed artificial reef was to be part of a larger scheme to develop
an aquatic nature center. After determining that an aquatic nature
center could be characterized as a nature facility within the scope of
section 125.0104(5)(b), Florida Statutes, the opinion concluded that
tourist development taxes could be used for its development. The
opinion notes that “[u]ltimately, however, the determination of whether
a particular expenditure satisfies the requirements of section 125.0104,
Florida Statutes, is the responsibility of the governing body of the
county and cannot be delegated to this office.”
Similarly, based on a determination by Collier County that the
purchase of real property would promote tourism or that the purchase
of an “out parcel” would improve, maintain or restore a beach park,
Attorney General Opinion 01-42 concluded that tourist development
tax revenues could be used to fund such a project. That opinion also
suggests that the beach park area might well be characterized as
a nature center that was publicly owned within the scope of section
125.0104(5)(b), Florida Statutes, and that Collier County, as a county
with a population of less than 600,000 (now 750,000), could use tourist
development tax revenues to “acquire, . . . extend, enlarge, . . . [or]
improve . . . .” such a center.
Thus, it is my opinion that tourist development tax proceeds may
be committed by Walton County to be used by the county to acquire
land and adjacent rights-of-way to provide public parking facilities to
serve beach access areas and other beach park facilities if the county
commission makes the requisite findings that such expenditures will
promote tourism within the county or that the purchase of this property
will improve, maintain, or restore beach park facilities.
327
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
See section 125.0104(3)(b), Fla. Stat.
1
See Ops. Att’y Gen. Fla. 83-18 (1983), 00-15 (2000), 10-09 (2010), and
Inf. Op. to Johnson, dated March 13, 2012.
2
Research indicates that the population of Walton County, Florida, is
under 100,000. See www.googlepublicdata, reflecting information from
the U.S. Census Bureau updated as of July 31, 2012.
3
Id.
4
See Thayer v. State, 335 So. 2d 815 (Fla. 1976), Dobbs v. Sea Isle Hotel,
56 So. 2d 341 (Fla. 1952), Ideal Farms Drainage District v. Certain Lands,
19 So. 2d 234 (Fla. 1944), for the principle of statutory construction that
the mention of one thing implies the exclusion of another – expressio
unius est exclusio alterius. Thus, when a statute enumerates the things
upon which it is to operate, or forbids certain things, it is ordinarily to
be construed as excluding from its operation all things not expressly
mentioned.
5
Section 125.0104(5)(b), Fla. Stat.
6
See Op. Att’y Gen. Fla. 94-12 (1994), stating that the “term ‘nature’
is defined as ‘the aspect of the out-of-doors (as a landscape): natural
scenery.’ Use of the word ‘center’ connotes ‘a point around which things
revolve: a focal point for attraction, concentration, or activity.’”
7
Supra n.3.
8
Cf. Op. Att’y Gen. Fla. 90-55 (1990), in which this office concluded
that the statute would not authorize the expenditure of these funds
for the construction of artificial structures such as those authorized
in s. 125.0104(5)(a)1., Fla. Stat., relating to convention centers, sports
stadiums, etc.; as that opinion notes “the Legislature has provided for
using tourist development tax revenues to construct certain facilities
which do not include beach parks.”
9
10
See s. 44, Ch. 96-397, Laws of Fla.
11
Webster’s New Universal Unabridged Dictionary (2003), p. 690.
AGO 12-39 – November 20, 2012
MOBILE HOMES – MOBILE HOME RELOCATION – MOBILE
HOME PARKS
ELIGIBILITY OF MOBILE HOME OWNER TO RECEIVE
RELOCATION COMPENSATION WHEN THE MOBILE HOME
PARK IS NO LONGER SUBJECT TO REGULATION
328
BIENNIAL REPORT OF THE ATTORNEY GENERAL
12-39
BY DEPARTMENT OF BUSINESS AND PROFESSIONAL
REGULATION
To: Mr. Terry J. Harmon, General Counsel, Florida Mobile Home
Relocation Corporation
QUESTION:
Does the decision by the Florida Department of Business
and Professional Regulation to no longer regulate Hollywood
Mobile Estates impact the rights of mobile home owners in the
mobile home park to apply for and obtain abandonment and
relocation assistance from the Florida Mobile Home Relocation
Corporation?
SUMMARY:
A mobile home owner who submits the appropriate application
for payment for relocation of a mobile home pursuant to Chapter
723, Florida Statues, and has not received payment otherwise
from the mobile home park owner, is entitled to payment if there
are sufficient funds in the Florida Mobile Home Relocation
Corporation Trust Fund to make such payment.
You state that Hollywood Mobile Estates (Hollywood Estates) is
located on land owned by the Seminole Tribe of Florida (Seminole Tribe)
and since approximately 1985 has been operated under an agreement
with a private corporation as a mobile home park with 10 or more lots
regulated by the Florida Department of Business and Professional
Regulation (DBPR). In August 2012, the Seminole Tribe notified
DBPR that it had cancelled its lease with the private corporation which
previously operated Hollywood Estates and that the tribe had assumed
control of the mobile home park. The Seminole Tribe further advised
DBPR that it was not subject to regulation under Chapter 723, Florida
Statutes. You indicate that in mid-September, the Seminole Tribe
notified mobile home owners in Hollywood Estates that effective June
30, 2013, the park would be closed and no leases would be renewed.
Your letter further indicates that DBPR has determined that it no
longer has jurisdiction over Hollywood Estates. As such, this office
does not comment, nor have we been asked to comment, upon whether
the Seminole Tribe would be required to reimburse the trust fund for
payments made to mobile home owners. This office has been advised
that several applications for payment have been received by FMHRC.
The materials you have provided, however, indicate that the Seminole
Tribe has offered an assistance grant of $3,000.00 for relocation expenses
to eligible owners of mobile homes in the park. It may be advisable,
therefore, to explore the possibility of working with the Seminole Tribe
to disburse the funds it has offered to mobile home owners in the park.
329
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
The Florida Mobile Home Act1 applies to “any residential tenancy
in which a mobile home is placed upon a rented or leased lot in
a mobile home park in which 10 or more lots are offered for rent or
lease.”2 The Legislature recognizes that unique factors are created by
the relationship that develops between a mobile home owner and the
mobile home park owner once occupancy has commenced and that such
factors may affect the parties’ bargaining positions and the operation of
market forces, i.e., basic property rights of a mobile home owner must
be protected while considering the legitimate business interest of the
park owner.3 The act provides:
This chapter is created for the purpose of regulating the factors
unique to the relationship between mobile home owners and
mobile home park owners in the circumstances described herein.
It recognizes that when such inequalities exist between mobile
home owners and mobile home park owners as a result of such
unique factors, regulation to protect those parties to the extent
that they are affected by the inequalities, while preserving and
protecting the rights of both parties, is required.4
Section 723.0611, Florida Statutes, creates the Florida Mobile
Home Relocation Corporation, which is authorized to adopt a plan of
operation to administer the provisions of sections 723.06115, 723.06116,
and 723.0612, Florida Statutes.5 Section 723.06115, Florida Statutes,
establishes the Florida Mobile Home Relocation Trust Fund (fund)
within DBPR “to be used by the department for the purpose of funding
the administration and operations of the Florida Mobile Home Relocation
Corporation.” The fund is funded by moneys collected by DBPR under
section 723.06116, Florida Statutes, from mobile home park owners who
change the use of their mobile home parks, a surcharge collected by the
department pursuant to section 723.007, Florida Statutes, a surcharge
collected by the Department of Highway Safety and Motor Vehicles,
and by other appropriated funds. The funds may be used only for the
payment of the administrative costs of the corporation and to carry out
the purposes and objectives of the corporation “by making payments to
mobile home owners under the relocation program.”6
Pursuant to the mobile home relocation statute, a mobile home park
owner subject to the act may evict a mobile home owner, mobile home
tenant, a mobile home occupant, or a mobile home only on one or more of
several enumerated grounds, one of which is, a change in use of the land
from mobile home lot rentals to some other use.7 Section 723.06116(1),
Florida Statutes, provides:
If a mobile home owner is required to move due to a change
in use of the land comprising a mobile home park as set forth
in s. 723.061(1)(d), the mobile home park owner shall, upon
such change in use, pay to the Florida Mobile Home Relocation
Corporation for deposit in the Florida Mobile Home Relocation
330
BIENNIAL REPORT OF THE ATTORNEY GENERAL
12-39
Trust fund $2,750 for each single-section mobile home and
$3,750 for each multisection mobile home for which a mobile
home owner has made application for payment of moving
expenses. The mobile home park owner shall make the
payments required by this section and by s. 723.0612(7) to the
corporation within 30 days after receipt from the corporation of
the invoice for payment. Failure to make such payment within
the required time period shall result in a late fee being imposed.
The section further states:
A mobile home park owner is not required to make the payment
prescribed in subsection (1), nor is the mobile home owner
entitled to compensation under s. 723.0612(1), when:
(a) The mobile home park owner moves a mobile home owner
to another space in the mobile home park or to another mobile
home park at the park owner’s expense;
(b) A mobile home owner is vacating the premises and has
informed the mobile home park owner or manager before the
change in use notice has been given; or
(c) A mobile home owner abandons the mobile home as set
forth in s. 723.0612(7).
(d) The mobile home owner has a pending eviction action for
nonpayment of lot rental amount pursuant to s. 723.061(1)(a)
which was filed against him or her prior to the mailing date
of the notice of change in use of the mobile home park given
pursuant to s. 723.061(1)(d).
You have not indicated that the mobile home owners in Hollywood
Estates would be ineligible to receive compensation due to one of the
conditions enumerated above. In order to receive payment from the
FMHRC, the act requires a mobile home owner to submit an application
for payment which contains a copy of the notice of eviction due to change
in use and a contract with a moving or towing contractor for the moving
expenses for the mobile home.8 When the Legislature has prescribed the
manner in which something is to be accomplished, it generally operates
as a prohibition against its being done in any other way.9
As a statute designed to protect the public’s interest, the provisions
in Chapter 723, Florida Statutes, should be liberally construed in favor
of the public.10 Applying a broad construction to protect the interests of
the mobile home owners who are being forced to move due to a change
in the use of the mobile home park and absent any showing that the
affected mobile home owners have failed to meet the requirements of
the statute, the mobile home owners in Hollywood Estates would not be
331
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BIENNIAL REPORT OF THE ATTORNEY GENERAL
disqualified from applying for and receiving relocation benefits provided
by the FMHRC under Chapter 723, Florida Statutes. As noted above, if
a mobile home owner in Hollywood Estates accepts compensation from
the Seminole Tribe for relocation compensation, the home owner would
be precluded from receiving compensation from FMHRC.
Accordingly, it is my opinion that a mobile home owner who submits
the appropriate application for payment for relocation of a mobile home
pursuant to Chapter 723, Florida Statues, and has not received payment
otherwise from the mobile home park owner is entitled to payment
if there are sufficient funds in the Florida Mobile Home Relocation
Corporation Trust Fund to make such payment.
1
Section 723.001, Fla. Stat.
2
Section 723.002(1), Fla. Stat.
3
Section 723.004(1), Fla. Stat.
4
Id.
5
Section 723.0611(3), Fla. Stat.
6
Section 723.06115(2), Fla. Stat.
7
See s. 723.061(1)(d), Fla. Stat.
8
Section 723.0612(3), Fla. Stat.
Alsop v. Pierce, 19 So. 2d 799, 805-806 (Fla. 1944); Dobbs v. Sea Isle
Hotel, 56 So. 2d 341, 342 (Fla. 1952); Thayer v. State, 335 So. 2d 815, 817
(Fla. 1976).
9
See Department of Environmental Regulation v. Goldring, 477 So. 2d
532, 534 (Fla. 1985) (provisions of statutes enacted in the public interest
should be given a liberal construction in favor of the public).
10
332
INDEX AND CITATOR
BIENNIAL REPORT OF THE ATTORNEY GENERAL
GENERAL INDEX
Subject
Opinion No.
-A-
AD VALOREM TAXATION
Private property transferred to common law pure
trust or subject of a land patent, taxability of .....................11-09
School districts, imposition of additional millage ..............12-30
ADVERSE POSSESSION
Property Appraisers, authority to remove adverse
possession claim notation from tax roll ................................12-02
AIRPORTS
Communication specialists not subject to public
safety telecommunicators' training requirements .............11-03
Economic Development Agency, airport authority
does not qualify as .....................................................................12-36
Lease of county airport property, permissible
terms ..............................................................................................11-22
Municipal airport as "eligible user" under statute
authorizing use of state contracts ..........................................12-24
Payment and performance bond requirements for
construction on airport authority property .........................12-12
Sale of county-owned airport, competitive bid
requirements ................................................................................11-11
ARCHITECTS
Business entity qualifying as "private provider"
for purposes of reviewing plans and providing building
code inspection services ............................................................12-27
AUDITS
County's funding of substance abuse and mental
health act's implementation .....................................................11-23
Sunshine Law, effect of audit committee's ratification
of financial officer's invalid action .........................................12-31
-BBEACHES
Local Government Infrastructure Surtax, proceeds
used for beach erosion projects/studies ................................12-19
334
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Tourist Development Tax, proceeds used for multi-use
pathway, bridges, and purchase of real property
for parking for beach parks .....................................................12-38
BID TAMPERING
Nonprofit crime stoppers not "public servant" for
purposes of bid tampering statute ..........................................12-21
BOARD OF TRUSTEES
Primary Data Center board of trustees as
"appointing authority" required to report under
minority representation statute ..............................................12-37
BONDS
Airport authority, payment and performance bond
requirements for construction on airport property ...........12-12
BRIDGES
Tourist Development Tax, proceeds used for multi-use
pathway, bridges, and purchase of real property for
parking for beach parks ............................................................12-38
BUILDING CONSTRUCTION STANDARDS
Business entity qualifying as "private provider" for
purposes of reviewing plans and providing building code
inspection services .....................................................................12-27
BUILDING PLANS
Business entity qualifying as "private provider" for
purposes of reviewing plans and providing building
code inspection services ............................................................12-27
BUSINESS LICENSE TAX
Guns dealers/gunsmiths, municipality's authority to
impose tax on ...............................................................................11-20
BUSINESS AND PROFESSIONAL REGULATION,
DEPARTMENT OF
Issuance of slot machine license to pari-mutuel
facility in county with referendum approving slot
machines, unauthorized ............................................................12-01
Mobile home relocation, owner's eligibility for
compensation ...............................................................................12-39
-CCERTIFICATION
Business entity qualifying as "private provider" for
purposes of reviewing plans and providing building code
inspection services .....................................................................12-27
335
BIENNIAL REPORT OF THE ATTORNEY GENERAL
CHARTERS
Hospital District Board, oversight duties in
light of noninterference charter provision .........................11-12
CHILDREN AND FAMILY SERVICES, DEPARTMENT OF
County's funding of implementation of substance
abuse and mental health act ....................................................11-23
CLERK OF COURT
Dual Office-Holding/Incompatibility, deputy clerk
serving as county commissioner .............................................11-05
CODE ENFORCEMENT OFFICERS
Firearms, authority to carry ....................................................12-14
COMMODITIES
Municipal airport as "eligible user" under statute
authorizing use of state contracts ..........................................12-24
COMMUNICATIONS AND DATA PROCESSING
Primary Data Center board of trustees as
"appointing authority" required to report under
minority representation statute ..............................................12-37
COMMUNITY PLANNING ACT
Zoning, authority of county to require landowner
consent before zoning change..................................................12-32
COMPENSATION
Mobile home relocation, owner's eligibility for
compensation ...............................................................................12-39
Regional Planning Council, authority to provide
severance pay...............................................................................11-26
COMPETITIVE BIDS
Consultants' Competitive Negotiation Act, special
district's authority to adopt hybrid bidding
procedure ......................................................................................11-21
County-owned airport, sale of..................................................11-11
Disposal of eminent domain property ...................................12-03
Special districts, authority to adopt local preference
policy ..............................................................................................12-34
COMMUNITY SUBSTANCE ABUSE AND MENTAL
HEALTH SERVICES ACT
County's role in implementation of Act .................................11-23
336
BIENNIAL REPORT OF THE ATTORNEY GENERAL
CONFLICT OF INTEREST
Housing Finance Authority, spouse's representation
of qualified housing development ...........................................11-13
CONCEALED WEAPONS
Judges, authority to permit concealed weapons in
courtroom and passage through courthouse to
access courtroom ........................................................................12-08
CONSULTANTS' COMPETITIVE NEGOTIATION ACT
Special district, authority to adopt hybrid bidding
procedure ......................................................................................11-21
CONTRACTORS
Airport authority, payment and performance bond
requirements for construction on airport property ...........12-12
CONTRACTS
Municipal airport as "eligible user" under statute
authorizing use of state contracts .........................................12-24
CORPORATIONS
Crime Stoppers not "public servant" for purposes of
bid tampering statute ................................................................12-21
Sunshine/Public Records Law, applicability to
city-created nonprofit foundation ..........................................11-01
COUNTIES
Code enforcement officer, authority to carry
firearm ...........................................................................................12-14
Discharge of firearms, regulation of.......................................11-17
Dual office-holding, city council member serving
as county director of emergency operations center ...........12-28
Economic development agency, airport authority
does not qualify as .....................................................................12-36
Emergency medical services assessment, levy by
county ............................................................................................12-09
Eminent domain property, disposal of ..................................12-03
Group insurance, county employees/officers
required to participate ..............................................................11-18
Lease of county airport property, permissible
terms ..............................................................................................11-22
Referendum approving slot machines; issuance of
337
BIENNIAL REPORT OF THE ATTORNEY GENERAL
slot machine license by Department of Business
and Professional Regulation to pari-mutuel facility
in county, unauthorized ............................................................12-01
Sale of county-owned airport, competitive bid
requirements ................................................................................11-11
Substance abuse and mental health services, county's
role in implementation of .........................................................11-23
Sunshine Law, discussions between officers who each
appoint criminal justice commission member .....................11-04
Zoning, authority of county to require landowner
consent before zoning change..................................................12-32
COURTS
Judges, authority to permit concealed weapons in
courtroom and passage through courthouse to
access courtroom ........................................................................12-08
CRIME STOPPERS
Bid tampering, definition of public servant .........................12-21
CRIMES
Nonprofit crime stoppers not "public servant" for
purposes of bid tampering statute ..........................................12-21
Weapon possession, effect of nolo contendere plea
with adjudication withheld ......................................................12-29
CRIMINAL JUSTICE COMMISSIONS
Sunshine Law, discussions between officers who
each appoint commission member ........................................11-04
-DDEEDS
Ad valorem taxation of property transferred to
common law pure trust or subject of land patent ..............11-09
Reverter clause, sale of county-owned airport ....................11-11
Tax Deeds, redemption of tax certificates issued
after application for tax deed, but prior to tax
deed sale ........................................................................................11-07
DEPENDENT SPECIAL DISTRICT
Airport authority, payment and performance
bond requirements for construction on authority
property.........................................................................................12-12
338
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Dual office-holding, housing authority and housing
finance authority as dependent special district
subject to .......................................................................................12-35
Municipal airport as "eligible user" under statute
authorizing use of state contracts ..........................................12-24
DEPUTIES
Dual Office-Holding/Incompatibility, deputy clerk
serving as county commissioner .............................................11-05
Railroad special officer serving as unpaid reserve
deputy sheriff permissible .......................................................12-10
DEVELOPMENT
Site plan approval, tolling of development order
expiration date by declared state of emergency .................12-13
DOMESTIC VIOLENCE
Weapon possession, effect of nolo contendere plea
with adjudication withheld ......................................................12-29
DUAL OFFICE-HOLDING
County director of emergency operations center
constitutes office .........................................................................12-28
Deputy clerk serving as county commissioner ....................11-05
Housing authority and housing finance authority .............12-35
Railroad special officer serving as unpaid reserve
deputy sheriff permissible ........................................................12-10
Special magistrate for value adjustment board
serving as city hearing officer .................................................12-17
Special magistrate serving on museum board .....................11-25
-EECONOMIC DEVELOPMENT AGENCIES
Airport authority does not qualify as ....................................12-36
EDUCATION – See also SCHOOLS
School Achievement Awards, participation by
teachers in determining use .....................................................12-25
Taxation, exemption for educational property when
school and real property held by different entities............12-15
EMERGENCY MANAGEMENT
Declaration of Emergency, public funds to repair
339
BIENNIAL REPORT OF THE ATTORNEY GENERAL
private road; sinkholes affecting public property,
authority to enter onto private property ..............................12-33
Dual office-holding, director of county emergency
management .................................................................................12-28
EMERGENCY SERVICES
Airport communication specialists not subject to
public safety telecommunicators' training
requirements ................................................................................11-03
Emergency medical services assessment, authority
of county to levy ..........................................................................12-09
Identifying information regarding E911 caller
contained in offense report, access to....................................11-27
EMINENT DOMAIN
Counties, disposal of eminent domain property .................12-03
ENGINEERS
Business entity qualifying as "private provider" for
purposes of reviewing plans and providing building
code inspection services ............................................................12-27
-FFIREARMS
Code enforcement officer, authority to carry
firearm ...........................................................................................12-14
Counties, regulation of discharge of firearms .....................11-17
Gun dealers/gunsmiths, imposition of business
license tax by municipality ......................................................11-20
Judges, authority to permit concealed weapons in
courtroom and passage through courthouse to access
courtroom .....................................................................................12-08
Weapon possession, effect of nolo contendere plea
with adjudication withheld ......................................................12-29
FIREFIGHTERS
Police/Firefighter pension plan, authority to add
criteria for selection of fifth board member and
to define quorum .........................................................................12-05
FALSE CLAIMS ACT
Municipality, applicability of Act to.......................................11-10
340
BIENNIAL REPORT OF THE ATTORNEY GENERAL
FLORIDA OFFENDER ALERT SYSTEM
Public Records Law, applicability of exemption to
request made before exemption's effective date .................11-16
FOUNDATIONS
Sunshine/Public Records Law, applicability to
city-created nonprofit foundation ..........................................11-01
-GGAMBLING
Issuance of slot machine license by Department of
Business and Professional Regulation to pari-mutuel
facility in county with referendum approving slot
machines, unauthorized ............................................................12-01
Veterans' organizations, applicability of slot
machine prohibition ...................................................................11-14
GOVERNMENT IN THE SUNSHINE LAW
Audit committee's ratification of financial officer's
invalid action, effect of .............................................................12-31
Confidential information considered at meeting,
effect of ..........................................................................................12-20
Criminal Justice Commission, discussions between
officers who each appoint commission member ..................11-04
Nonprofit foundation created by city, applicability of
law to ..............................................................................................11-01
GOVERNOR
Site plan approval, tolling of development order
expiration date by declared state of emergency .................12-13
GROUP INSURANCE
County's authority to require county employees' and
officers' participation in ...........................................................11-18
-HHEALTH, DEPARTMENT OF
Airport communication specialists not subject to
public safety telecommunicators' training
requirements ................................................................................11-03
HEARING OFFICERS
Dual office-holding, value adjustment board special
magistrate serving as city hearing officer ............................12-17
HILLSBOROUGH TRANSIT AUTHORITY
341
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Sunshine Law, confidential information
considered at meeting................................................................12-20
HOSPITALS
Hospital District Board, oversight duties in light
of noninterference charter provision ....................................11-12
HOUSING AUTHORITIES
Dual office-holding, dependent special district
housing authority subject to ....................................................12-35
HOUSING FINANCE AUTHORITIES
Conflict of interest, spouse's representation of
qualified housing development ...............................................11-13
Dual office-holding, dependent special district
housing finance authority subject to .....................................12-35
-IINCOMPATIBILITY
Deputy clerk serving as county commissioner,
dual office-holding ......................................................................11-05
Conflict of interest, spouse's representation of
qualified housing development ...............................................11-13
INFRASTRUCTURE
Local Government Infrastructure Surtax, proceeds
used for beach erosion projects/studies ................................12-19
INSPECTION
Business entity qualifying as "private provider" for
purposes of reviewing plans and providing building
code inspection services ............................................................12-27
INSURANCE
Counties, required participation in group insurance
by county employees/officers ...................................................11-18
INTERLOCAL AGREEMENTS
Law enforcement services provided by municipality
to adjoining and non-adjoining municipalities ...................11-24
INTERCEPTION OF COMMUNICATIONS
Law Enforcement, conditions for recording of
telephone calls .............................................................................12-07
-JJUDGES
Concealed weapons in courtroom and passage
342
BIENNIAL REPORT OF THE ATTORNEY GENERAL
through courthouse to access courtroom, authority
to permit ........................................................................................12-08
-K-LLAND PATENT
Ad valorem taxation of property transferred to
common law pure trust or subject of a land patent............11-09
LAW ENFORCEMENT
Interlocal agreement authorizing provision of law
enforcement services to adjoining and non-adjoining
municipalities ..............................................................................11-24
Recording of telephone calls, conditions ..............................12-07
Truants, pat-down prior to transporting ..............................11-08
LAW ENFORCEMENT, DEPARTMENT OF
Florida Offender Alert System, applicability of
public records exemption to request made before
exemption's effective date ........................................................11-16
LAW ENFORCEMENT OFFICERS
Code enforcement officer, authority to carry
firearm ...........................................................................................12-14
Dual office-holding, railroad special officer serving
as unpaid reserve deputy sheriff permissible ......................12-10
Police/Firefighter pension plan, authority to add
criteria for selection of fifth board member and to
define quorum ..............................................................................12-05
Truants, pat-down prior to transporting ..............................11-08
LEASES
County airport property, permissible terms ........................11-22
LEGAL NOTICE
Newspaper requirements for publication of ........................12-11
LICENSURE
Business entity qualifying as "private provider"
for purposes of reviewing plans and providing
building code inspection services ...........................................12-27
LITTLE MILLER ACT
Airport authority, payment and performance
bond requirements for construction on authority
343
BIENNIAL REPORT OF THE ATTORNEY GENERAL
property.........................................................................................12-12
-MMALFEASANCE
Hospital District Board, oversight duties in light
of noninterference charter provision charter .....................11-12
MEETINGS – See GOVERNMENT IN THE SUNSHINE LAW
MENTAL HEALTH
County's role in implementation of substance
abuse and mental health services act ....................................11-23
MILITARY
Power of Attorney Act amendments, effect on
military springing powers of attorney...................................12-06
MILLAGE
School districts, authority to impose additional
millage ...........................................................................................12-30
MINORITIES
Primary Data Center board of trustees as "appointing
authority" required to report under minority
representation statute ...............................................................12-37
MINORS
Truants, pat-down by law enforcement officer prior
to transporting.............................................................................11-08
MOBILE HOME PARK RECREATION DISTRICTS
Vacancies, requirements for filling ........................................12-23
MOBILE HOMES
Mobile home relocation, owner's eligibility for
compensation ...............................................................................12-39
MOSQUITO CONTROL
Vacancy on district board filled pursuant to
special act .....................................................................................11-06
Water Control District, authority to provide
arthropod control .......................................................................11-02
MUNICIPALITIES
Airport authority does not qualify as economic
development agency ...................................................................12-36
Dependent special districts, housing authority
and housing finance authority subject to dual
office-holding prohibition .........................................................12-35
344
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Dual office-holding, city council member serving
as county director of emergency operations
center .............................................................................................12-28
Dual office-holding, special magistrate for value
adjustment Board serving as city hearing officer ...............12-17
Florida False Claims Act, applicability ................................11-10
Guns dealers/gunsmiths, authority to impose
municipal business license tax on ..........................................11-20
Housing authority, exclusive jurisdiction over
housing projects ..........................................................................12-04
Legal notices, newspaper requirements for
publication of ...............................................................................12-11
Local Government Infrastructure Surtax, proceeds
used for beach erosion projects/studies ................................12-19
Interlocal agreement, provision of law enforcement
services to adjoining and non-adjoining
municipalities ..............................................................................11-24
Municipal airport as "eligible user" under statute
authorizing use of state contracts ..........................................12-24
Police/Firefighter pension plan, authority to add
criteria for selection of fifth board member and
to define quorum .........................................................................12-05
Site plan approval, tolling of development order
expiration date by declared state of emergency .................12-13
Sunshine Law, effect of audit committee ratifying
financial officer's invalid action ..............................................12-31
Sunshine/Public Records Law, applicability to
city-created nonprofit foundation ..........................................11-01
Value Adjustment Board, resignation of member
required prior to commencing term of office as city
commissioner; citizen member may not serve as
municipal employee or member ..............................................12-18
MUNICIPAL SERVICE BENEFIT DISTRICT
Public Funds, authority to purchase boat ramp,
public use thereof .......................................................................12-26
345
BIENNIAL REPORT OF THE ATTORNEY GENERAL
MUSEUMS
Dual Office-Holding/Incompatibility, special
magistrate serving on museum board ...................................11-25
-NNEWSPAPERS
Legal Notice, requirements for publication .........................12-11
NON-PROFIT CORPORATIONS – See CORPORATIONS
-OOCCUPATIONS
Guns dealers/gunsmiths, authority to impose
municipal business license tax on ..........................................11-20
OFFICERS – See PUBLIC OFFICERS AND EMPLOYEES
OPEN MEETINGS – See GOVERNMENT IN THE
SUNSHINE LAW
ORDINANCES
Discharge of firearms, regulation by county ........................11-17
Guns dealers/gunsmiths, imposition of municipal
business license tax on ..............................................................11-20
Police/Firefighter pension plan, authority to add
criteria for selection of fifth board member and to
define quorum ..............................................................................12-05
-PPARI-MUTUEL FACILITIES
Issuance of slot machine license by Department
of Business and Professional Regulation to
pari-mutuel facility in county with referendum
approving slot machines, unauthorized ................................12-01
PENSIONS
Police/Firefighter pension plan, authority to add
criteria for selection of fifth board member and to
define quorum ..............................................................................12-05
PERMITS
Site plan approval, tolling of development order
expiration date by declared state of emergency .................12-13
PLANNED DEVELOPMENTS
Zoning, authority of county to require landowner
346
BIENNIAL REPORT OF THE ATTORNEY GENERAL
consent before zoning change..................................................12-32
POWERS OF ATTORNEY
Military springing powers of attorney, effect
of amendments to state's Power of Attorney
Act on .............................................................................................12-06
PREEMPTION
Code enforcement officer, authority to carry
firearms .........................................................................................12-14
Counties, regulation of discharge of firearms .....................11-17
PRIMARY DATA CENTER
Board of trustees as "appointing authority"
required to report under minority representation
statute ............................................................................................12-37
PRIVATE PROPERTY
Public Funds used to repair private road; sinkholes
affecting public property, authority to enter
onto private property ................................................................12-33
PRIVATE PROVIDERS
Business entity qualifying as "private provider" for
purposes of reviewing plans and providing building
code inspection services ............................................................12-27
PROCUREMENT
Special districts, authority to adopt local
preference policy ........................................................................12-34
PROPERTY APPRAISERS
Ad valorem taxation of property transferred to
common law pure trust or subject to land patent...............11-09
Adverse possession claim notation, authority to
remove from tax roll ...................................................................12-02
Educational property exemption, inapplicable
when school and real property held by different
entities ...........................................................................................12-15
Veteran's total exemption, required
documentation .............................................................................12-16
PUBLIC CONSTRUCTION
Consultants' Competitive Negotiation Act, special
district's authority to adopt hybrid bidding
procedure ......................................................................................11-21
PUBLIC CORRUPTION
347
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Nonprofit crime stoppers not "public servant" for
purposes of bid tampering statute ..........................................12-21
PUBLIC EMPLOYEES – See PUBLIC OFFICERS AND
EMPLOYEES
PUBLIC FUNDS
Repair of private road; sinkholes affecting public
property, authority to enter onto private
property.........................................................................................12-33
Municipal services benefit unit, authority to
purchase boat ramp, public use thereof ................................12-26
PUBLIC HOUSING AUTHORITIES
Public housing projects, exclusive jurisdiction
over .................................................................................................12-04
PUBLIC OFFICERS AND EMPLOYEES
County director of emergency operations center
constitutes office .........................................................................12-28
Dual office-holding, special magistrate serving on
museum board .............................................................................11-25
Dual Office-Holding/Incompatibility, deputy clerk
serving as county commissioner .............................................11-05
Group Insurance, participation by county employees
and officers required by county ..............................................11-18
Housing Finance Authority, no conflict presented
by spouse's representation of qualified housing
development .................................................................................11-13
Mobile home park recreation districts,
requirements for filling vacancies ..........................................12-23
Mosquito Control District, vacancy filled pursuant
to special act.................................................................................11-06
Nonprofit crime stoppers not "public servant" for
purposes of bid tampering statute ..........................................12-21
Personnel assessment improperly filed, status
as public record ...........................................................................11-19
Police/Firefighter pension plan, authority to add
criteria for selection of fifth board member and to
define quorum ..............................................................................12-05
Railroad special officer serving as unpaid reserve
348
BIENNIAL REPORT OF THE ATTORNEY GENERAL
deputy sheriff permissible ........................................................12-10
Severance pay, authority of regional planning
council to provide .......................................................................11-26
Special magistrate for value adjustment board
serving as city hearing officer .................................................12-17
Term limits, applicability to individual with break
in service .......................................................................................12-22
PUBLIC PROPERTY
Airport Authority, payment and performance bond
requirements for construction on airport property ...........12-12
Counties, disposal of eminent domain property .................12-03
PUBLIC RECORDS
Airport authority does not qualify as economic
development Agency for purposes of exemption ................12-36
E911 calls, identifying information in offense
report .............................................................................................11-27
Florida Offender Alert System records,
applicability of exemption to request made before
exemption's effective date ........................................................11-16
Nonprofit foundation created by municipality,
applicability of .............................................................................11-01
Personnel assessment improperly filed, status
as public record ...........................................................................11-19
Sunshine Law, confidential information considered
at meeting .....................................................................................12-20
PUBLIC SAFETY TELECOMMUNICATORS
Airport communication specialists not subject to
public safety telecommunicators' training
requirements ................................................................................11-03
PUBLIC SERVANTS
Nonprofit crime stoppers not "public servant" for
purposes of bid tampering statute ..........................................12-21
-QQUORUM
Police/Firefighter pension plan, municipal authority
to add criteria for selection of fifth board member
and to define quorum .................................................................12-05
349
BIENNIAL REPORT OF THE ATTORNEY GENERAL
-RRAILROADS
Dual office-holding, railroad special officer serving
as unpaid reserve deputy sheriff permissible ......................12-10
REAL PROPERTY
Ad valorem taxation of property transferred to
common law pure trust or subject to land patent
common law pure trust/land patent .......................................11-09
Lease of county airport property, permissible
terms ..............................................................................................11-22
Property Appraisers, removal of adverse possession
claim notation from tax roll .....................................................12-02
Sale of county-owned airport, competitive
bid requirements .........................................................................11-11
RECORDS – See PUBLIC RECORDS
REGIONAL PLANNING COUNCILS
Severance pay, authority to provide ......................................11-26
RESERVE OFFICERS
Dual office-holding, railroad special officer serving
as unpaid reserve deputy sheriff permissible ......................12-10
-SSAFETY
Airport communication specialists not subject to
public safety telecommunicators' training
requirements ................................................................................11-03
SCHOOL DISTRICTS
Additional millage, authority to impose................................12-30
SCHOOLS
Educational property exemption, inapplicable
when school and real property held by different
entities ...........................................................................................12-15
School Achievement Awards, participation by
teachers in determining use .....................................................12-25
Public Records Law, applicability to improperly
filed personnel assessment .......................................................11-19
Teachers' participation in determining use of
school achievement awards......................................................12-25
350
BIENNIAL REPORT OF THE ATTORNEY GENERAL
SEARCH AND SEIZURE
Truants, pat-down by law enforcement officer
prior to transporting ..................................................................11-08
SECURITY OF COMMUNICATIONS
Law Enforcement, conditions for recording of
telephone calls .............................................................................12-07
SEXUAL OFFENDERS
Florida Offender Alert System, applicability of
public records exemption to request made before
exemption's effective date ........................................................11-16
SHERIFFS
Sunshine Law, discussions between officers who
each appoint criminal justice commission member ...........11-04
SINKHOLES
Affecting public property, authority to enter onto
private property; use of public funds to repair
private road ..................................................................................12-33
SLOT MACHINES
Gambling, applicability of slot machine
prohibition to machines operated by veterans'
organizations ...............................................................................11-14
Issuance of slot machine license by Department of
Business Regulation to pari-mutuel facility in
county with referendum approving slot machines,
unauthorized ................................................................................12-01
SMOKING
Special district's authority to regulate ..................................11-15
SPECIAL ASSESSMENTS
Emergency medical services assessment, authority
of county to levy ..........................................................................12-09
SPECIAL DISTRICTS
Airport authority, payment and performance
bond requirements for construction on authority
property.........................................................................................12-12
Consultants' Competitive Negotiation Act, authority
to adopt hybrid bidding procedure ........................................11-21
Dual office-holding, housing authority and housing
finance authority as dependent special districts
subject to .......................................................................................12-35
Hospital District Board, oversight duties in light
351
BIENNIAL REPORT OF THE ATTORNEY GENERAL
of noninterference charter provision ....................................11-12
Local preference policy, authority to adopt .........................12-34
Mobile home park recreation district, filling
vacancies .......................................................................................12-23
Municipal airport as "eligible user" under
statute authorizing use of state contracts ............................12-24
Municipal services benefit unit, authority to
purchase boat ramp, public use thereof ................................12-26
Smoking, authority of special district to
regulate .........................................................................................11-15
Term limits, applicability to individual with break
in service .......................................................................................12-22
Vacancy on mosquito control district filled pursuant
to special act.................................................................................11-06
Water Control District, authority to provide
arthropod control .......................................................................11-02
SPECIAL MAGISTRATES
Dual office-holding, special magistrates for value
adjustment board serving as city hearing officer ...............12-17
Dual office-holding, special magistrates serving
on museum board ........................................................................11-25
SPOUSES
Housing Finance Authority, no conflict presented
by spouse's representation of qualified housing
development .................................................................................11-13
STATE ATTORNEYS
Sunshine Law, discussions between officers who
each appoint criminal justice commission
member ..........................................................................................11-04
STATE OF EMERGENCY
Public Funds to repair private road; sinkholes
affecting public property, authority to enter onto
private property ..........................................................................12-33
Site plan approval, tolling of development order
expiration date by declared state of emergency .................12-13
SUNSHINE LAW - See GOVERNMENT IN THE
SUNSHINE LAW
352
BIENNIAL REPORT OF THE ATTORNEY GENERAL
SURPLUS PROPERTY
Counties, disposal of eminent domain property .................12-03
SURTAX
Local Government Infrastructure Surtax, proceeds
used for beach erosion projects/studies ................................12-19
-TTAX CERTIFICATES
Redemption of tax certificates issued after application
for tax deed, but prior to tax deed sale..................................11-07
TAXATION
Ad valorem taxation of property transferred to
common law pure trust or subject to land patent...............11-09
Business license tax imposed on guns
dealers/gunsmiths .......................................................................11-20
Dual office-holding, special magistrates for value
adjustment board serving as city hearing officer ...............12-17
Dual office-holding, value adjustment board's
special magistrate serving on museum board .....................11-25
Educational property exemption, inapplicable
when school and real property held by different
entities ...........................................................................................12-15
Local Government Infrastructure Surtax, proceeds
used for beach erosion projects/studies ................................12-19
Property Appraisers, removal of adverse possession
claim notation from tax roll .....................................................12-02
Redemption of tax certificates issued after application
for tax deed, but prior to tax deed sale..................................11-07
School districts, imposition of additional millage ..............12-30
Tourist Development Tax, proceeds used for
multi-use pathway, bridges, and purchase of real
property for parking for beach parks ....................................12-38
Veteran's total exemption, required documentation .........12-16
TELEPHONE CALLS
E911 calls, identifying information in offense
report .............................................................................................11-27
Law Enforcement, conditions for recording of
353
BIENNIAL REPORT OF THE ATTORNEY GENERAL
telephone calls .............................................................................12-07
TERMS OF OFFICE
Public Officers, applicability of term limit to
individual with break in service .............................................12-22
Value Adjustment Board member must resign
office prior to commencement of term as city
commissioner ...............................................................................12-18
TOBACCO
Special district's authority to regulate smoking .................11-15
TOURIST DEVELOPMENT TAX
Proceeds used for multi-use pathway, bridges,
and purchase of real property for parking for
beach parks ..................................................................................12-38
TRAILS
Tourist Development Tax, proceeds used for
multi-use pathway, bridges, and purchase of real
property for parking for beach parks ....................................12-38
TRUANTS
Law enforcement officer's pat-down of truant
prior to transporting ..................................................................11-08
TRUSTS
Property Appraiser, taxability of private property
transferred to common law pure trust or subject
of a land patent ...........................................................................11-09
-UUNITED STATES
Amendments to state's Power of Attorney Act,
effect on military springing powers of attorney .................12-06
Taxation, documentation required for veteran's
total exemption ............................................................................12-16
Weapon possession, effect of nolo contendere plea
with adjudication withheld ......................................................12-29
UNITS OF GOVERNMENT
Regional Planning Council, authority to provide
severance pay...............................................................................11-26
-VVACANCIES
Mobile home park recreation districts, requirements
354
BIENNIAL REPORT OF THE ATTORNEY GENERAL
for filling........................................................................................12-23
Mosquito Control District, vacancy filled pursuant to
special act .....................................................................................11-06
VALUE ADJUSTMENT BOARDS
Dual office-holding, special magistrate serving
as city hearing officer ................................................................12-17
Dual office-holding, special magistrate serving on
museum board .............................................................................11-25
Resignation of member required prior to
commencing term of office as city commissioner;
citizen member may not serve as municipal employee
or member .....................................................................................12-18
VETERANS
Taxation, documentation required for total
exemption .....................................................................................12-16
VETERANS' ORGANIZATIONS
Gambling, applicability of slot machine prohibition
to machines operated by veterans' organizations ..............11-14
-WWATER CONTROL DISTRICTS
Arthropod control, authority to provide ...............................11-02
WATER MANAGEMENT DISTRICTS
Consultants' Competitive Negotiation Act, adoption
of hybrid bidding procedure ....................................................11-21
Local preference policy, authority to adopt .........................12-34
Smoking, authority to regulate ...............................................11-15
WEAPONS
Code enforcement officer, authority to carry
firearm ...........................................................................................12-14
Counties, regulation of discharge of firearms .....................11-17
Gun dealers/gunsmiths, imposition of business license
tax by municipality ....................................................................11-20
Judges, authority to permit concealed weapons
in courtroom and passage through courthouse
to access courtroom ....................................................................12-08
Weapon possession, effect of nolo contendere plea
355
BIENNIAL REPORT OF THE ATTORNEY GENERAL
with adjudication withheld ......................................................12-29
WHISTLE-BLOWERS
Sunshine Law, confidential information considered
at meeting .....................................................................................12-20
WORKPLACE WITHOUT TOBACCO SMOKE
Smoking, authority of special district to regulate ..............11-15
-X-Y-ZZONING
Counties, authority to require landowner consent
before zoning change ...................................................................... 32
356
BIENNIAL REPORT OF THE ATTORNEY GENERAL
CITATOR
CITATOR TO FLORIDA STATUTES, STATE CONSTITUTION,
AND LAWS OF FLORIDA CONSTRUED IN OPINIONS
RENDERED FROM JANUARY 1, 2011, THROUGH
DECEMBER 31, 2012
CITATOR TO FLORIDA STATUES
Subject
Subject
Opinion No.
Opinion No.
69.021 ...............................12-05
73.013 ...............................12-03
73.013(1) ...................12-03
73.013(1)(f)...............12-03
73.013(2)(b)..............12-03
95.18 .................................12-02
95.18(4) (2011) .........12-02
95.18(4)(c) ................12-02
95.18(7) .....................12-02
95.18(7)(a)-(d) .........12-02
95.18(8) (2011) .........12-02
99.012 ...............................11-26
12-18
99.012 (1971)............11-26
99.012(2) (1971) .......11-26
100.041 .............................12-01
100.201 .............................12-01
101.161 .............................12-19
106.24 ...............................12-05
110.402 .............................11-10
112.0515 ...........................11-24
112.08 ...............................11-18
112.08(2)(a) ..............11-18
112.08(3) ...................11-18
112.0801 ...........................11-18
112.11 ...............................11-18
112.14 ...............................11-18
112.311(2) (1991) ............11-13
112.3135(2)(a) (1993) .....11-13
112.3143 ...........................11-13
112.3143(3)...............12-28
112.3187-112.31895 ........12-20
112.3187(2)...............12-20
112.3187(3)(a)..........12-20
112.3187(6)...............12-20
112.3188 ...................12-20
112.3188(1)...............12-20
112.3188(1)(a)..........12-20
1.01 ........................................12-15
12-27
12-34
1.01(8) ............................11-10
11-21
12-03
14.29 ......................................12-05
16.01(3) .................................11-10
11-20
12-02
12-13
16.555(4)(b) ..........................12-21
16.555(5) ...............................12-21
20.03 ......................................12-37
20.04 ......................................11-10
20.19 ......................................11-23
20.19(6) ..........................11-23
28.24(10) ...............................11-07
28.35-28.37 ............................11-05
30.49 ......................................11-26
39.702 ....................................12-05
43.291 ....................................12-05
50.031 ....................................12-11
50.051 ....................................12-11
50.11 ......................................12-11
68.081-68.09 ..........................11-10
68.082 .............................11-10
68.082(1) ........................11-10
68.082(1)(a) ...................11-10
68.082(1)(b) ...................11-10
68.082(1)(d) ...................11-10
68.082(2) ........................11-10
68.082(3) ........................11-10
68.083(2) ........................11-10
68.087 .............................11-10
68.087(1) ........................11-10
68.087(6) ........................11-10
357
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
Opinion No.
125.0104(5)(a)4. ....12-38
125.0104(5)(b) .........12-38
125.0104(5)(c) ..........12-38
125.0108 ...........................12-01
125.011 .............................12-01
125.271 .............................12-09
125.271(1)(a) ............12-09
125.271(3) .................12-09
125.35 ...............................11-11
11-22
125.35(1) ...................11-22
125.35(1)(a) ..............11-22
125.35(1)(b)..............11-11
125.35(1)(b)1. ........11-22
125.39 ...............................11-11
125.64 ...............................12-01
125.66(4) ..........................12-32
125.901 .............................12-01
153.53 ...............................12-01
159.602(3) ........................12-35
159.602(4) ........................12-35
159.603(6) ........................11-13
159.604(3) ........................12-35
159.605(1) ........................12-35
159.605(2)(b)4. ..............12-35
159.606 .............................11-13
159.608 .............................12-35
159.608(1) .................12-35
159.608(2) .................12-35
159.608(3) .................12-35
159.608(4) .................12-35
159.608(9) .................12-35
159.608(10)(a)..........12-35
159.612(1) ........................12-35
159.62 ...............................11-13
162.01-162.12 ..................12-14
162.02........................12-14
162.03........................12-14
162.04(2) ...................12-14
162.06–162.08 ..................12-14
162.06(1) ...................12-14
162.13 ...............................12-14
162.21-162.30 ..................12-14
162.21........................12-14
162.21(2) ...................12-14
163.01 ...............................11-24
163.3161 ...........................12-13
163.3161(2)...............12-13
112.3188(1)(b) ...............12-20
112.3188(2)(b) ...............12-20
112.3188(2)(c) ...............12-20
112.40 ....................................11-12
112.41 ....................................11-12
112.43 ....................................11-12
114.04 ....................................12-23
116.34(2)(a) ..........................11-10
119.01 ....................................11-01
119.011 ..................................11-16
11-19
119.011(2) ......................11-01
11-19
11-23
119.011(12) ....................11-19
11-23
119.021(2)(a) ........................11-19
119.07 ....................................11-01
11-19
119.07(1) ........................11-16
11-19
11-23
11-27
12-20
119.07(7) ........................12-20
119.071 ..................................11-01
119.071(2)(c)1. ............12-07
119.071(2)(j)1. .............12-07
119.071(5)(j) ..................11-16
119.071(5)(j)1. .............11-16
120.52(1) ...............................11-26
121.0515 ................................12-14
121.0515(3) ....................12-14
121.0515(4) ....................12-14
121.23 ....................................12-14
125.01 ....................................11-11
11-21
12-01
125.01(1)(y) ...................12-01
125.01(3) ........................11-11
125.0104
11-22
12-01
12-38
125.0104(3)(b) ...............12-38
125.0104(3)(l) ................12-38
125.0104(3)(n) ...............12-38
125.0104(5) ....................12-38
125.0104(5)(a) ...............12-38
358
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
12-32
163.3161(6) ....................12-32
163.3164 -163.3217 ..............12-32
163.3164 .........................12-13
12-24
163.3164(10) ..................11-10
163.3164(15) ..................12-13
163.3164(16) ..................12-13
163.3164(21) ..................12-24
163.3167(8) ....................12-32
163.3167(12) .................12032
163.3174(1) ....................12-32
163.3174(4) ....................12-32
163.3177(1) ....................12-32
163.3181(1) ....................12-32
163.3181(2) ....................12-32
163.3184 .........................12-32
163.3184(11) ..................12-32
163.3187(5)(a) ...............12-32
163.3215 .........................12-32
163.3215(3) ....................12-13
163.340 ..................................12-18
163.340(24) ....................12-18
166.021 ..................................12-05
12-19
166.021(4) ......................12-18
166.0495 ................................11-24
175.021 ..................................12-05
175.032 ..................................12-05
175.061 ..................................12-05
175.061(1) ......................12-05
175.061(1)(a) .................12-05
175.071 ..................................12-05
175.071(2) ......................12-05
185.01 ....................................12-05
185.02 ....................................12-05
185.02(10) .............................12-05
185.05 ....................................12-05
185.05(1) ........................12-05
185.05(1)(a) ...................12-05
185.05(1)(b) ...................12-05
185.05(7) ........................12-05
185.06 ....................................12-05
185.06(2) ........................12-05
186.501 186.513 ..................11-26
186.502(1)(c) .................11-26
186.502(2) ......................11-26
186.502(3) ......................11-26
Opinion No.
186.502(4) .................11-26
186.503(1) .................11-26
186.504......................11-26
186.505......................11-26
186.505(4) .................11-26
186.506(1) .................11-26
186.507(1) .................11-26
186.508(1) .................11-26
186.901 .............................12-38
189.403(1) ........................11-21
189.4035(1) ......................12-23
189.4221 ...........................12-24
192.011 .............................11-09
192.032 .............................11-09
193.0235 ...........................12-18
194.01 ...............................11-07
194.015 .............................12-05
12-18
194.035 .............................11-25
12-17
194.035(1) .................11-25
12-17
194.22 ...............................11-07
196.001 .............................11-09
12-15
196.011 .............................12-16
196.011(1)(b)............12-16
196.011(7) .................12-16
196.011(8) .................12-16
196.081 .............................12-16
196.081(1) .................12-16
196.081(2) .................12-16
196.091 .............................12-16
196.198 .............................12-15
196.199(1) ........................11-21
196.24 ...............................12-16
197.102(2) ........................11-07
197.122 .............................11-07
197.182(1)(e) ...................12-16
197.302 .............................11-11
197.402(3) ........................11-07
197.432 .............................11-07
197.432(1) .................11-07
197.432(2) .................11-07
197.432(8) .................11-07
197.473 .............................11-07
197.502 .............................11-07
197.502(4) .................11-07
359
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
197.502(4)(h) .................11-07
197.502(6) ......................11-07
197.502(6)(b) .................11-07
197.502(6)(c) .................11-07
197.502(8) ......................11-07
197.522(1)(a) ........................11-07
197.522(2) .............................11-07
197.542(1) .............................11-07
197.552 ..................................11-07
197.573(2) .............................11-07
197.582 ..................................11-07
197.592 ..................................11-11
198.01(3) ...............................12-15
200.065 ..................................12-18
205.013 ..................................11-20
205.042 ..................................11-20
205.042(1) ......................11-20
205.042(2) ......................11-20
205.043(1)(a) ........................11-20
211.01(15) .............................12-15
212.055 ..................................12-19
212.055(2) ......................12-19
212.055(2)(b) .................12-19
212.055(2)(d) .................12-19
212.20 ....................................11-22
215.425 ..................................11-26
215.425(1) ......................11-26
215.425(3) ......................11-26
215.425(4) ......................11-26
215.425(4)(a) .................11-26
215.425(5) ......................11-26
215.58(12) .............................11-10
216.011(1)(m) .......................12-19
216.011(1)(p) ........................12-19
218.39 ....................................12-31
218.39(1) ........................12-31
218.39(1)(b) ...................12-31
218.391 ..................................12-31
218.391(1) ......................12-31
218.391(2) ......................12-31
218.391(3) ......................12-31
252.31-252.90 ........................12-28
12-33
252.31 .............................12-33
252.34(4)(c) ...................12-33
252.34(5) ........................12-28
252.363 ...........................12-13
252.363(1) ......................12-13
Opinion No.
252.363(1)(a) ............12-13
252.363(1)(a)1. .......12-13
252.363(2) .................12-13
252.38........................12-28
12-33
252.38(1)(b)..............12-28
252.38(3) ...................12-28
12-33
252.38(3)(a)1. .........12-33
252.38(3)(a)1.-4. ....12-28
252.38(3)(a)4. .........12-33
252.38(3)(a)5. .........12-28
252.38(3)(a)5.a. .....12-33
252.38(3)(a)5.g. .....12-33
252.38(3)(a)5.h. .....12-33
255.05 ...............................11-21
12-12
255.05(1)(a) ..............12-12
255.05(7) ...................12-12
255.103 .............................11-21
255.103(1) .................11-21
255.20 ...............................11-21
12-34
12-35
255.20(1) ...................12-34
255.20(1)(c)1. ........12034
255.20(1)(d)..............11-21
255.20(3) ...................11-21
12-34
282.0041(17) ....................12-37
282.201(1) ........................12-37
282.203 .............................12-37
282.203(2)(a) ............12-37
282.203(2)(a)4.e. ...12-37
282.203(3)(a)-(l) ......12-37
282.203(12)...............12-37
282.204 ...........................12-37
282.205 .............................12-37
285.17 ...............................11-21
286.011 .............................11-01
11-04
12-20
286.0113(1) ......................12-20
287.012 .............................12-24
287.012(9) .................12-24
287.012(11)...............12-24
287.055 .............................11-21
12-34
360
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
287.055(2)(f) ..................11-21
287.055(4)(b) .................12-34
287.056 ..................................12-24
287.056(1) ......................12-24
287.057 ..................................12-24
287.082 ..................................12-34
287.084 ..................................12-34
288.0656 ................................12-09
288.075 ..................................12-36
288.075(1)(a) .................12-36
288.075(1)(a)4. ............12-36
288.075(1)(a)6. ............12-36
288.075(2) ......................12-36
288.075(2)(a) .................12-36
288.075(2)(a)2. ............12-36
288.075(3) ......................12-36
288.075(4) ......................12-36
288.075(5) ......................12-36
288.075(6) ......................12-36
288.9551(3) ......................12-20
295.17 ....................................12-16
298.005(3) .............................11-02
298.01 ....................................11-02
298.02 ....................................11-02
298.03 ....................................11-02
298.11(3) ...............................12-05
298.22 ....................................11-02
298.35 ....................................11-21
330.36 ....................................12-32
332.01(1) ...............................11-11
11-22
332.08 ....................................11-11
11-22
332.08(3) ........................11-11
11-22
332.08(4) ........................11-11
348.0002(2) ...........................11-10
354.01 ....................................12-10
354.02 ....................................12-10
354.03 ....................................12-10
354.04 ....................................12-10
354.05 ....................................12-10
361.025 ..................................12-10
365.171 ..................................11-27
12-07
365.171(2) ......................11-27
365.171(12) ....................11-27
12-07
Opinion No.
365.172 .............................11-03
365.172(3)(a) ............11-03
12-07
373.016 .............................12-34
373.044 .............................11-15
373.069 .............................12-34
373.069(1)(b)............12-34
373.069(1)(d) ...................11-21
373.073(1)(a) ...................11-21
373.079 .............................11-15
373.079(4)(a) ............11-15
373.083 .............................11-15
373.083(1) .................11-15
12-34
373.083(5) .................11-15
373.113 .............................12-34
373.171(1)(c) ...................12-34
380.012 .............................12-13
380.031(3) ........................12-13
380.031(4) ........................12-13
380.031(6) ........................11-10
383.412(3)(a) ...................12-20
386.209 .............................11-15
388.021-388.4111 ............11-06
388.031 (1979) .........11-02
388.041 (1979) .........11-02
388.051 (1979) .........11-02
388.111......................11-06
394.457(3) ........................11-23
394.65 ...............................11-23
394.67(13) ........................11-23
394.73(3) ..........................11-23
394.75 ...............................11-23
394.75(3) ...................11-23
394.75(4)(h) .............11-23
394.75(7) ...................11-23
394.75(11) .................11-23
394.75(12) .................11-23
394.76 ...............................11-23
394.76(3)(b)..............11-23
394.76(5) ...................11-23
394.76(9)(a) ..............11-23
394.76(10) .................11-23
394.78 ...............................11-23
401.465 .............................11-03
401.465(2) .................11-03
401.465(2)(a) ............11-03
414.404 .............................12-23
361
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
418.30 ....................................12-23
418.302 ..................................12-23
418.302(1) ......................12-23
418.302(3) ......................12-23
418.302(5) ......................12-23
418.304(3) .............................12-23
418.304(4) .............................12-23
418.304(5) .............................12-23
420.504(2) .............................11-10
421.01 ....................................12-04
421.02 ....................................12-04
421.02(3) ........................12-35
421.03(6) ...............................12-04
421.03(6)(b) ...................12-04
421.03(9) ...............................12-04
421.04(1) ...............................12-04
421.04(2) ...............................12-04
421.05(1) ...............................12-35
421.07 ....................................12-35
421.08 ....................................12-04
12-35
421.08(1) (5) ..................12-04
421.08(2) ........................12-35
421.08(4) ........................12-35
421.08(5) ........................12-35
421.08(6) ........................12-35
421.08(7) ........................12-35
421.08(8)(a) ...................12-35
421.27(3) ...............................12-04
443.036 ..................................12-27
443.036(29 .....................11-26
443.036(35) ....................11-10
443.1216 ................................12-27
447.203(9) .............................12-20
458.331(1)(c) ........................12-29
468.601 ..................................12-27
471.001 ..................................12-27
471.003 ..................................12-27
471.003(2)(e) .................12-27
471.005(3) .............................12-27
471.005(5) .............................12-27
471.005(8) .............................12-27
481.203(4) .............................12-27
481.203(5) .............................12-27
481.219 ..................................12-27
481.219(2) ......................12-27
481.219(6) ......................12-27
517.161(1)(j) .........................12-29
Opinion No.
551.102(4) ........................12-01
551.102(8) ........................11-14
551.104(1) ........................12-01
553.791 .............................12-27
553.791(1)(e) ............12-27
553.791(1)(g) ............12-27
553.791(1)(i).............12-27
553.791(2) .................12-27
553.791(3) .................12-27
553.791(4)(b)............12-27
553.791(8) .................12-27
553.791(15)...............12-27
553.791(16)...............12-27
553.791(17)...............12-27
616.251 .............................11-10
627.0628(3)(f)2.a. .........12-20
668.6076 ...........................11-16
709.11 (2010) ...................12-06
709.2106(4) ......................12-06
709.2108 ...........................12-06
709.2108(3)...............12-06
709.2108(4)...............12-06
713.001 .............................12-12
713.01(26) ........................12-12
723.001 .............................12-39
723.002 .............................12-39
723.002(1) .................12-39
723.004 .............................12-39
723.004(1) .................12-39
723.007 .............................12-39
723.061(1)(a) ...................12-39
723.061(1)(d) ...................12-39
723.0611 ...........................12-39
723.0611(3)...............12-39
723.06115.........................12-39
723.06115(2).............12-39
723.06116.........................12-39
723.06116(1).............12-39
723.0612 ...........................12-39
723.0612(1)...............12-39
723.0612(3)...............12-39
723.0612(7)...............12-39
760.80 ...............................12-37
760.80(1) ...................12-37
760.80(2)(a)-(e) ........12-37
760.80(3) ...................12-37
760.80(4) ...................12-37
760.80(8) ...................12-37
362
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
775.082 ..................................11-22
12-21
775.083 ..................................11-22
12-21
775.084 ..................................12-21
775.13(1) ...............................12-29
775.21 ....................................11-16
775.21(3)(a) ...................11-16
775.21(3)(b)4. ..............11-16
775.21(7) ........................11-16
775.21(7)(a) ...................11-16
784.03 ....................................12-29
790.051 ..................................12-08
790.06 ....................................12-08
12-29
790.06(1) ........................12-08
790.06(12)(a) .................12-08
790.06(12)(a)5. ............12-08
790.065 ..................................12-29
790.15 ....................................11-17
790.233 ..................................12-29
790.33 ....................................11-17
11-20
790.33 (2000) .................11-17
790.33(1) ........................11-17
11-20
790.33(2)(a) ...................12-14
790.333(1)(a) ........................11-17
790.333(1)(c) ........................11-17
790.333(3)(h) ........................11-17
790.335 ..................................11-20
810.011 ..................................12-33
810.09 ....................................12-33
812.035(7) .............................11-10
823.16 ....................................11-17
823.16(1)(c) ...................11-17
823.16(6) ...............................11-17
838.014 ..................................12-21
838.014(6) ......................12-21
838.22 ....................................12-21
838.22(1) ........................12-21
838.22(2) ........................12-21
849.0931 ................................11-14
849.0932 ................................11-14
849.0935(1)(a) ......................11-14
849.15 ....................................11-14
12-01
849.16 ....................................11-14
Opinion No.
12-01
849.16(1) ...................11-14
849.161 .............................11-14
849.161(1)(a) ............11-14
849.161(1)(a)1. .......11-14
849.161(1)(a)2. .......11-14
849.161(1)(b)............11-14
849.161(2) .................11-14
921.0021(2) ......................12-29
921.0021(2) (2002) ..........12-29
934.01 ...............................12-07
934.01(2) ...................12-07
934.01(3) ...................12-07
934.01(4) ...................12-07
934.02(2) ..........................12-07
934.02(10) ........................12-07
934.03 934.09 ..................12-07
934.03(1) ...................12-07
934.03(2)(c) ..............12-07
934.03(2)(d)..............12-07
934.03(2)(g) ..............12-07
934.03(4) ...................12-07
934.06........................12-07
938.06 ...............................12-21
943.0435 ...........................11-16
943.0435(12).............11-16
943.085-943.255 ..............12-14
943.10(1) ...................12-14
943.13........................12-14
943.13(1)-(10)...........12-10
943.44353(1) ....................11-16
961.06(5) ..........................11-10
961.06(6) ..........................11-10
984.13 ...............................11-08
984.13(1)(b)..............11-08
984.13(2)(a) ..............11-08
1002.20(2)(a) ...................11-08
1003.21 .............................11-08
1004.226(8)(b)1. ............12-20
1004.4472(4) ....................12-20
1008.36 .............................12-25
1008.36(1) .................12-25
1008.36(2) .................12-25
1008.36(3) .................12-25
1008.36(4) .................12-25
1008.36(5) .................12-25
1011.71 .............................12-30
1011.71(9) .................12-30
363
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
1011.73 ..................................12-30
1011.73(1) ......................12-30
1011.73(2) ......................12-30
1012.01(2) .............................12-25
1012.01(3) .............................12-25
1012.01(6) .............................12-25
1012.31 ..................................11-19
1012.31(2)(a) .................11-19
1012.31(3)(a) .................11-19
1012.31(4) ......................11-19
1012.34 ..................................11-19
1012.34(3)(c) .................11-19
364
Opinion No.
BIENNIAL REPORT OF THE ATTORNEY GENERAL
CHAPTER, FLORIDA STATUTES
Subject
Subject
Opinion No.
20 ...........................................12-37
50 ...........................................12-11
95 ...........................................11-07
112, Part III .........................11-26
112, Part V ...........................11-12
119 .........................................11-01
11-19
11-23
12-07
12-21
12-36
120 .........................................11-15
11-26
125 .........................................11-11
12-32
125, Part II....................12-32
145 .........................................11-18
154, Part III .........................12-35
159 .........................................12-35
159, Part III ..................12-36
159, Part IV ..................11-13
12-35
159, Part V ....................12-36
162 .........................................12-14
162, Part I .....................12-14
162, Part II....................12-14
163, Part II ...........................12-13
12-32
166 .........................................12-32
175 .........................................12-05
185 .........................................12-05
189 .........................................11-21
12-34
197 .........................................11-07
205 .........................................11-20
212 .........................................12-19
216 .........................................12-19
252, Part I ............................12-33
282, Part I ............................12-37
287 .........................................12-24
287, Part I .....................12-24
298 .........................................11-02
331, Part II ...........................12-36
332 .........................................11-11
Opinion No.
11-22
12-24
336 ....................................11-14
351 ....................................12-10
354 ....................................12-10
12-17
373 ....................................11-15
11-21
12-34
386, Part II .....................11-15
388 ....................................11-06
394, Part IV ....................11-23
418, Part II .....................12-23
421 ....................................12-04
421, Part I ................12-04
12-35
443 ....................................12-27
468 ....................................12-27
468, Part XII............12-27
471 ....................................12-27
481 ....................................12-27
551 ....................................11-14
616 ....................................11-01
633 ....................................12-14
709, Part II .....................12-06
713 ....................................12-12
713, Part I ................12-12
718 ....................................12-32
719 ....................................12-32
720 ....................................12-32
723 ....................................12-39
790 ....................................11-17
11-20
838 ....................................12-21
849 ....................................11-14
921 ....................................12-29
934 ....................................12-07
943 ....................................12-17
365
BIENNIAL REPORT OF THE ATTORNEY GENERAL
STATE CONSTITUTION
Subject
Subject
Opinion No.
I, s. 8 ......................................11-20
I, s. 12 ....................................11-08
I, s. 18 ....................................11-12
I, s. 23 ....................................11-15
I, s. 24 ....................................12-20
I, s. 24(a) ........................11-16
11-27
12-20
12-36
I, s. 24(b)........................11-01
12-20
I, s. 24(c) ........................11-16
II, s. 5(a) ...............................11-05
11-25
11-26
12-10
12-17
12-28
12-35
II, s. 5(c)................................12-02
IV, s. 6 ...................................11-10
IV, s. 7 ...................................11-12
IV, s. 7(a) .......................11-12
IV, s. 7(b) .......................11-12
VI, s. 5 ...................................12-01
VI, s. 6 ...................................12-18
VII, s. 1 ..................................12-09
12-33
VII, s. 3 ..................................11-09
12-15
VII, s. 3(a) .....................11-09
VII, s. 3(b) .....................12-16
VII, s. 4 ..................................11-09
12-15
VII, s. 9 ..................................11-09
12-09
12-18
12-19
12-30
VII, s. 9(a) .....................12-30
VII, s. 9(b) .....................12-30
VII, s. 10................................12-26
VII, s. 10(c)....................11-09
VIII, s. 1(f) ............................12-32
Opinion No.
VIII, s. 2(b)......................12-05
12-19
X, s. 3................................12-23
X, s. 20..............................11-15
X, s. 23..............................12-01
XVI, s. 22 (1885) .............12-12
366
BIENNIAL REPORT OF THE ATTORNEY GENERAL
SESSION LAWS
Subject
Subject
Opinion No.
Opinion No.
92-203, s. 3 .......................11-06
94-213...............................12-37
94-316...............................11-10
96-229, s. 2 .......................11-27
96-397, s. 44.....................12-38
97-62 .................................11-24
99-1 ...................................12-05
99-1, s. 83..................12-05
99-2, s. 21 .........................12-11
99-2, s. 22 .........................12-11
99-190...............................11-11
11-22
00-139, s. 2 .......................11-23
02-346...............................11-06
02-346, s. 3(1)...........11-06
02-346, s. 3(3)...........11-06
02-347...............................12-36
02-347, s. 3(5)...........12-36
03-158...............................12-21
03-309, s. 3(1) ..................11-03
05-300...............................12-24
05-300, s. 2 ...............12-24
05-300, s. 3 ...............12-24
05-300, s. 6(1)...........12-24
05-300, s. 6(6)...........12-24
05-300, s. 6(10).........12-24
05-300, s. 8 ...............12-24
05-300, s. 17 .............12-24
05-306...............................12-12
05-342...............................11-02
05 342, s. 1................11-02
05-342, s. 2 ...............11-02
05-342, s. 3 ...............11-02
05-342, s. 4 ...............11-02
05-343...............................12-22
05-343, s. 1 ...............12-22
05-343, s. 3(3)...........12-22
06-152...............................11-20
06-347...............................11-12
06-347, s. 3 ...............11-12
07-299...............................11-12
07-299, s. 1 ...............11-12
07-299, s. 5 ...............11-12
07-299, s. 5(2)...........11-12
20852 (1941) .........................11-18
20852, s. 3 (1941) ..........11-18
20852, s. 4 (1941) ..........11-18
22846, s. 8 (1945) .................11-11
11-22
23829 (1947) .........................11-11
23829, s. 1 (1947) ..........11-11
11-22
23829, s. 5 (1947) ..........11-11
27438 (1951) .........................11-12
6867, s. 1 (1915) ...................12-12
59-195, s. 2 ............................11-06
71-136, s. 231 ........................11-22
71-669 ....................................11-02
71-669, s. 8(1)(o) ...........11-02
71-669, s. 9(24) ..............11-02
71-669, s. 10 ...................11-02
71-669, s. 10(10) ............11-02
71-669, s. 10(17) ............11-02
71-669, s. 10(22) ............11-02
71-669, s. 10(24) ............11-02
71-669, s. 10(25) ............11-02
71-669, s. 10(26) ............11-02
71-669, s. 10(27) ............11-02
71-669, s. 15 ...................11-02
71-669, s. 16 ...................11-02
71-669, s. 17 ...................11-02
71-924 ....................................12-12
71-924, s. 12 ...................12-12
72-338 ....................................11-18
73-332, s. 23 ..........................11-11
73-332, s. 29 ..........................11-11
76-208, s. 1 ............................11-18
77 235, s. 1 ............................12-23
77-563 ....................................11-02
80-281 ....................................11-02
80-281, s. 12 ...................11-02
85-342, s. 197 ........................11-11
86-392 ....................................12-26
86-392, s. 1 .....................12-26
86-392, s. 2(1) ................12-26
86-392, s. 2(4) ................12-26
88-461 ....................................11-02
90-434 ....................................11-02
367
BIENNIAL REPORT OF THE ATTORNEY GENERAL
Subject
Subject
Opinion No.
07-299, s. 5(3)(a) ...........11-12
09-170 ....................................12-01
09-170, s. 2, Part XII ....12-01
09-170, s. 19 ...................12-01
09-170, s. 26 ...................12-01
10-29 ......................................12-01
10-29, s. 1 .......................12-01
10-29, s. 4 .......................12-01
10-29, s. 5 .......................12-01
10-188 ....................................11-03
10 188, s. 1 .....................11-03
10 188, s. 2 .....................11-03
10 188, s. 3 .....................11-03
10 188, s. 5 .....................11-03
10-266 ....................................11-02
10-266, s. 1 .....................11-02
10-266, s. 3 .....................11-02
10-266, s. 4 .....................11-02
11-85 ......................................11-16
11-85, s. 2 .......................11-16
11-107 ....................................12-02
11-107, s. 1 .....................12-02
11-107, s. 4 .....................12-02
11-107, s. 7 .....................12-02
11-108 ....................................11-15
11-109 ....................................11-17
11-20
11-109, s. 1 .....................11-17
11-109, s. 1(2)(a) ...........11-17
11-109, s. 2 .....................11-17
11-142, s. 494 .......................12-13
11 142, s. 528 .......................12-13
11-143 ....................................11-26
11-143, s. 1 .....................11-26
11-210 ....................................12-06
11-265 ....................................12-24
11-265, s. 6(5) ................12-24
11-265, s. 8 .....................12-24
11-265, s. 8(2) ................12-24
368
Opinion No.
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