untitled

BIENNIAL REPORT

of the

ATTORNEY GENERAL

STATE OF FLORIDA

January 1, 2015, through December 31, 2016

PAM BONDI

Attorney General

Tallahassee, Florida

2017

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 ofﬁ cer.”

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

ofﬁ cers of the State and state agencies;

Defends the public interest;

Represents the State in legal proceedings;

Keeps a record of his or her ofﬁ cial acts and opinions;

Serves as a reporter for the Supreme Court.

iii

STATE OF FLORIDA

OFFICE OF ATTORNEY GENERAL

PAM BONDI

March 31, 2017

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 ofﬁ ce periodically publish a report on

the Attorney General ofﬁ cial opinions, I submit herewith the

biennial report of the Attorney General for the two preceding

years from January 1, 2015, through December 31, 2016.

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

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 ........... xii

Seal of the Attorney General of Florida ................................................ xvii

OPINIONS

Opinions 2015 ....................................................................................................1

Opinions 2016 ..................................................................................................56

INDEX AND CITATOR

General Index ................................................................................................125

Citator to Florida Statutes, Constitution,

and Session Laws ..........................................................................................135

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. Whitﬁ eld ................................................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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vii

OFFICE OF THE ATTORNEY GENERAL

The Capitol, Tallahassee, Florida 32399-1050

(850) 245-0140

PAMELA BONDI

ATTORNEY GENERAL

PATRICIA CONNERS

DEPUTY

ATTORNEY GENERAL

KENT PEREZ

DEPUTY

ATTORNEY GENERAL

STEVE RUMPH JR.

INSPECTOR GENERAL

NICOLAS COX

STATEWIDE PROSECUTOR

PATRICIA GLEASON

SPECIAL COUNSEL

FOR OPEN

GOVERNMENT

EMERY GAINEY

DIRECTOR OF LAW

ENFORCEMENT

VICTIMS & CRIMINAL

JUSTICE PROGRAM

CAROLYN SNURKOWSKI

ASSOCIATE DEPUTY

ATTORNEY GENERAL

FOR CRIMINAL APPEALS

AMITABH AGARWAL

SOLICITOR GENERAL

CHESTERFIELD SMITH JR.

ASSOCIATE DEPUTY

ATTORNEY GENERAL

FOR GENERAL CIVIL

LITIGATION

DANILLE CARROLL

DIRECTOR OF CIVIL

RIGHTS

JIM VARNADO

DIRECTOR OF

MEDICAID FRAUD

SABRINA DONOVAN

DIRECTOR OF

ADMINISTRATION

VICKI BUTLER

DIRECTOR OF ECONOMIC

CRIMES

ROB JOHNSON

DIRECTOR OF

LEGISLATIVE & CABINET

AFFAIRS

DANA WIEHLE

DIRECTOR OF LEMON LAW

GERRY HAMMOND

DIRECTOR OF OPINIONS

NILDA PEDROSA

DEPUTY CHIEF OF STAFF

DOUG SMITH

DIRECTOR OF

INFORMATION SERVICES

WHITNEY RAY

COMMUNICATIONS

DIRECTOR

KIMBERLI OSWALD

DIRECTOR OF CITIZEN

SERVICES

ANDREW FAY

SPECIAL COUNSEL

JASON RODRIGUEZ

EXTERNAL AFFAIRS

viii

David Bundy

Victoria Butler

David Campbell

Leslie Campbell

James Carney

Cynthia Carrino

Danille Carroll

Edward Carter

Arlisa Certain

Maisha Champagne

Deborah Chance

Clifford Chapman

Gabrielle Charest-Turken

Emmanuela Charles

Carrol Cherry Eaton

Donna Chisholm

Maria Chisholm

Brandon Christian

Mary Clark

Rachel Clark

Katherine Cline

Brett Coleman

Robin Compton

Cynthia Comras

Jessenia Concepcion

Anne Conley

Bethany Connelly

Patricia Conners

Antony Constantini

Joseph Coronato

Carmen Corrente

James Cox

Nicholas Cox

Shelley Cridlin

Stephanie Cunningham

Stephanie Daniel

Ha Dao

Howard Dargan

Kristen Davenport

Ashley Davis

Carol DeGraffenreidt

Arielle Demby Berger

Cornelius Demps

Timothy Dennis

Robert Dietz

Joanne Diez

Jennifer Dillon

Randi Dincher

Carol Dittmar

Christina Dominguez

Vanessa Duffey

Thomas Duffy

Susan Dunlevy

Mark Dunn

Shirley Durham

David Earl

Robert Edelman

Mitchell Egber

Melissa Eggers

Robert Elson

Viviana Escobar

Diana Esposito

Eric Eves

Bilal Faruqui

Andrew Fay

Ryann Flack

David Flynn

Robert Follis

William Foster

Deborah Fraim

Colin Fraser

Timothy Fraser

Timothy Freeland

Timothy Frizzell

Anne Furlow

Sonia Garcia-Solis

Steven Gard

Cedell Garland

Sean Garvey

Jared Gass

Allan Geesey

Jeffrey Geldens

Fulvio Gentili

Donna Gerace

Jeanine Germanowicz

Walter Giffrow

Peter Gioia

Douglas Glaid

Patricia Gleason

Lisa Glick

Jonathan Glogau

Stacey Gomez-Sutter

Ely Gonzalez

Alicia Gordon

Ashley Grafton Cannon

Ashley Grant

Marcus Graper

Dayle Green

Kimberly Acuna

Jill Adams

Rotem Adar

Ronnie Adili

Amitabh Agarwal

Stephen Ake

Chelsea Alper

Jeannette Andrews-Thompson

Bianca Ankoh

Thomas Arden

Albert Arena

Alexa Argerious

David Asti

John Bajger

Samantha Josephine Baker

Stephanie Baptiste

Thomas Barnhart

Glen Bassett

Denise Beamer

Marilyn Beccue

Carla Bechard

Kenneth Beck

Berdene Beckles

Andrew Benard

Jill Bennett-Bodner

Laurie Benoit-Knox

Stephanie Bergen

Toni Bernstein

Heidi Bettendorf

James Bickner

Soﬁ a Bilokryla

Tabitha Blackmon

Jennifer Blanton

Laura Boeckman

Genevieve Bonan

Kayla Boone

Albert Bowden

Jessica Boxer

Anthony Bradlow

Lizabeth Brady

Ravi Brammer

Jamie Braun

Jessica Brito

Jerrett Brock

Karen Brodeen

Scott Browne

Meghan Brunette

Cindy Bruschi

Wendy Bufﬁ ngton

Diane Guillemette

Lindsey Guinand

Maria Guitian Barker

Lee Gustafson

Ellen Gwynn

Melody Hadley

Lori Hagan

Nora Hall

Mark Hamel

Christi Hankins

Denise Harle

Ginette Harrell

Virginia Harris

Lawrence Harris

Julia Harris

Jesse Haskins

Janice Haywood

Wesley Heidt

Rebecca Henderson

Kehara Hendrieth

Nikole Hiciano O’Neil

Sonya Horbelt

Sara Horowitz

Robert Humphrey

Christopher Hunt

Jonathan Hurley

Martha Hurtado

Elmer Ignacio

Lee Istrail

Jamie Ito

Clark Jennings

Kiersten Jensen

Georgina Jimenez-Orosa

Daniel Johnson

Anthony Johnson

Kristen Johnson

Caroline Johnson Levine

Bryan Jordan

Keri Joseph

Aniska Joseph

Rachael Kaiman

Linda Katz

Jennifer Keegan

Cole Kekelis

Russell Kent

Ann Keough

Anne Kingsbury

Stacey Kircher

John Klawikofsky

Jennifer Knutton

Donna Koch

Peter Koclanes

Pamela Koller

Jill Kramer

Daniel Krumbholz

Lisa Kuhlman

Jacqueline Kurland

Erik Kverne

Edmond Lambert

Kathryn Lane

Donna LaPlante

Shannon Laurie

Robert Lee

Lisa-Marie Lerner

Julia Lesh

Norman Levin

Wendy Linton

Eric Lipman

Sandra Lipman

David Llanes

Kristen Lonergan

Deborah Loucks

Christopher Lumpkin

Patrice Malloy

Madeleine Mannello Scott

Luz Maria-Montero

Julian Markham III

Leslie Marlowe

James Marsh

Lisa Martin

Paul Martin

Luis Martinez

Elba Martin-Schomaker

Cheryl Mason

Stephen Masterson

Linda Matthews

Amanda McCarthy

David McClain

Michael McDermott

Anne McDonough

Rebecca McGuigan

Amanda McKibben

Kayla McNab

Carrie McNair

James McNamara III

Donna McNulty

Melynda Melear

Michael Mervine

Stephanie Middleton

John Mika

James Millard

Jason Miller

Elizabeth Miller

Charmaine Millsaps

Robert Milne

Ilana Mitzner

Jennifer Moore

Audrey Moore

Nicole Moore

Allison Morris

Robert Morris III

Thomas Munkittrick

Teresa Mussetto

Luke Napodano

Bill Navas

Lance Neff

Betty Nestor

Kellie Nielan

Rachel Nordby

Lynette Norr

Diane Oates

Matthew Ocksrider

Mary Ottinger

Christina Pacheco

William Pafford

Robert Palmer

Paola Palou

Michelle Pardoll

Helene Parnes

Matthew Parrish

Bonnie Parrish

Trisha Pate

Wesley Paxson III

Ivy Pereira Rollins

Melka Perez

Kent Perez

Samuel Perrone

Kristen Pesicek

Robert Peterson

Chris Phillips

Lisa Phillips

Jennifer Pinder

Richard Polin

Omotayo Popoola

Lateasha Powell

Jordan Pratt

Ana Prentice

Sarah Prieto

Brittany Quinlan

Nicole Ramos-Barreau

Sherea Randle

Jerod Rigoni

Marie Rives

Lauren Roberson

Melissa Roca

Magaly Rodriguez

Jason Rodriguez

Don Rogers

Susan Rogers

Tonja Rook

Evan Rosen

Aimee Rosenblum

Heather Ross

Seth Rubin

Candance Sabella

Gregory Sadowski

Johnny Salgado

Alfred Saunders

Shari Scalone

Michael Schaub

Charles Schreiber Jr

Carolyn Schwarz

Jessica Schwieterman

Susan Shanahan

Tiffany Short

Sarah Shullman

Jeffrey Siegal

Holly Simcox

Darlene Simmons

Hagerenesh Simmons

Jamie Simons

Carol Simpson

Vivian Singleton

Rebecca Sirkle

Gregory Slemp

Chesterﬁ eld Smith Jr

Carolyn Snurkowski

Joshua Soileau

Mary Soorus

Joseph Spejenkowski

Douglas Squire

Brian Stabley

William Stafford III

Jean Stasio

Samuel Steinberg

Rachel Steinman

Marlene Stern

Paul Stevenson

Monica Stinson

Jacek Stramski

Betsy Stupski

Melanie Surber

Matthew Tannenbaum

Jonathan Tanoos

Kaylee Tatman

Cerese Taylor

Elizabeth Teegen

Edward Tellechea

Celia Terenzio

Andrew Tetreault

Courtney Thomas

Britt Thomas

Dawn Tifﬁ n

Andrea Totten

Sharon Traxler

Jorie Tress

Mark Urban

Alycia Vajgert

Jelica Valentine

Donna Valin

Richard Valuntas

Erin VanDeWalle

Elizabeth vandenBerg

James Varnado

Katherine Varsegi

Ann Vecchio

Marjorie Vincent-Tripp

Matthew Vitale

Kathleen Von Hoene

Rebecca Wall

Josie Warren

Shane Weaver

Nicholas Weilhammer

Brittany Weiss

Kaitlin Weiss

Marlon Weiss

W Joseph Werner

Ryann White

Dana Wiehle

Jonathan Williams

Emerald Williams

Kenneth Wilson

Blaine Winship

Anesha Worthy

Joshua Wright

Katelyn Wright

Colleen Zaczek

Jason Zapper

Danielle Zemola

ASSISTANT STATEWIDE PROSECUTORS

Cynthia Avari

Diana Bock

Jonathan Bridges

Cass Castillo

Melissa Checchio

Jessica Costello

Diane Croff

Nickolaus Davis

Jessica Dobbins

Paul Dontenville

Danielle Dudai

Robert Finkbeiner

Jeremy Franker

Michael-Anthony Pica

Sylvester Polk

Carrie Pollock Gil

Priscilla Prado Stroze

John Roman

Laura Rose

Mary Sammon

James Schneider

Jeremy Scott

Julie Sercus

Joseph Spataro

Stephanie Tew

Audra Thomas-Eth

Oscar Gelpi

David Gillespie

Jennifer Gutmore

Kelsey Hellstrom

Julie Hogan

Stephen Immasche

Margery Lexa

Shannon MacGillis

Gary Malak

James McGuire

Kelly McKnight

Joanna Pang

Nicole Pegues

xii

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 Ofﬁ ce 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

ofﬁ cials 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 difﬁ cult or momentous questions of law should be

submitted to the courts for resolution by declaratory judgment.

When deemed appropriate, this ofﬁ ce 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

Ofﬁ ce. All legal opinions issued by this ofﬁ ce, 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 ofﬁ ce 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

xiii

signed by the Attorney General are generally issued to public ofﬁ cials

to whom the Attorney General is required to respond. While an

ofﬁ cial 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 ofﬁ ce.

III. Persons to Whom Opinions May Be Issued

The responsibility of the Attorney General to provide legal opinions

is speciﬁ ed 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 ofﬁ cer, or

ofﬁ cer of a county, municipality, other unit of local government,

or political subdivision, give an ofﬁ cial opinion and legal advice in

writing on any question of law relating to the ofﬁ cial duties of the

requesting ofﬁ cer.

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 ofﬁ cer, or ofﬁ cer 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.

xiv

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

ofﬁ cials. In addition, an opinion request must relate to the requesting

ofﬁ cer's own ofﬁ cial duties. An Attorney General Opinion will not,

therefore, be issued when the requesting party is not among the

ofﬁ cers speciﬁ ed in section 16.01(3), Florida Statutes, or when an

ofﬁ cer falling within section 16.01(3), Florida Statutes, asks a question

not relating to his or her own ofﬁ cial 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 Ofﬁ cers 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

conﬂ ict in the laws although the Attorney General may attempt

to provide general assistance;

• 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 ofﬁ cial 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. Sufﬁ cient 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 ofﬁ ce attempts to respond to

all requests for opinions within 30 days of their receipt in this ofﬁ ce.

However, in order to facilitate this expedited response to opinion

requests, this ofﬁ ce requires that the attorneys for public entities

requesting an opinion supply this ofﬁ ce 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 ofﬁ cials, organizations or associations

representing public ofﬁ cials may be requested. Interested parties

may also submit a memorandum of law and other written material

xvi

or statements for consideration. Any such material will be attached to

and made a part of the permanent ﬁ le of the opinion request to which

it relates.

VI. Miscellaneous

This ofﬁ ce provides access to formal Attorney General Opinions

through a searchable database on the Attorney General’s website at:

myﬂ oridalegal.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 Ofﬁ ce. Copies of

informal opinions can be obtained from the Opinions Division of the

Attorney General's Ofﬁ ce.

As an alternative to requesting an opinion, ofﬁ cials may wish to

use the informational pamphlet prepared by this ofﬁ ce on dual ofﬁ ce-

holding for public ofﬁ cials. Copies of the pamphlet can be obtained

by contacting the Opinions Division of the Attorney General's Ofﬁ ce.

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.

xvii

Pam Bondi

The Capitol

Tallahassee

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-01

BIENNIAL REPORT

of the

ATTORNEY GENERAL

State of Florida

January 1, 2015, through December 31, 2016

AGO 2015-01 – January 28, 2015

PUBLIC RECORDS – EMERGENCY CALLS –

CONFIDENTIALITY – VOICE RECORDINGS

WHETHER SOUND OF CALLER’S VOICE IS CONFIDENTIAL

IDENTIFYING INFORMATION

To: The Honorable Deryl Loar, Sheriff of Indian River County

Attention: Major James G. Harpring

QUESTION:

Is the recording and sound of a voice of the caller in an E911

call requesting emergency service considered “information

which may identify any person” which is made confidential by

section 365.171, Florida Statutes?

SUMMARY:

While section 365.171(12), Florida Statues, makes conﬁ dential

information obtained by a public agency which may identify a

person requesting emergency services or reporting an emergency

in an E911 call, there is no clear indication that the Legislature

intended to include the sound of a person’s voice as information

protected from disclosure to the public at large.

Florida’s Public Records Law, Chapter 119, Florida Statutes, provides

a right of access to the records of state and local governments, as well

as private entities acting on their behalf.

For purposes of the law, the

term “public records” is deﬁ ned to include

all documents, papers, letters, maps, books, tapes, photographs,

ﬁ lms, 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 ofﬁ cial

business by any agency.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-01

The only exceptions to the requirements of the Public Records Law

are those established by general law or by the Constitution.

There is

no question that the sound recording of an E911 call is a public record

for purposes of the Public Records Law.

Section 365.171(12)(a), Florida

Statutes, however, provides:

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

conﬁ dential 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. . . .

Prior to its amendment in 1990, the statute, then section 365.171(15),

Florida Statutes, merely provided conﬁ dentiality for information

“which reveals the name, address, or telephone number of any person

requesting emergency service or reporting an emergency by accessing

an emergency telephone number ‘911’ system[.]”

Relying on this

language, it was concluded in Attorney General Opinion 90-43 that only

that portion of the voice recording of a “911” call relating to the name,

address, and telephone number of the person calling the emergency

telephone number “911” to report an emergency or to request emergency

assistance is exempt from the disclosure requirements of Chapter 119,

Florida Statutes. Thus, the opinion concluded that the voice recording

of a “911” call is subject to disclosure once the name, address, and

telephone number of the caller have been deleted.

Following issuance of Attorney General Opinion 90-43, the ﬁ rst

sentence of section 365.171(15), Florida Statutes, was amended to

extend conﬁ dentiality to certain personal, identifying information. The

legislative history for enactment of Chapter 90-305, Laws of Florida,

amending the statute, reveals that this change in subsection (15) was

intended to “[p]rovide for conﬁ dentiality of ‘911’ recordings or portions

of such recordings when processing information requests (under the

provisions of section 119.07(1), Florida Statutes . . .) for personal

information or information which might identify a person requesting or

reporting emergency service by use of the ‘911’ number.”

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-01

This ofﬁ ce subsequently concluded that a tape recording of a “911”

call is a public record subject to disclosure and copying when in the

custody of an emergency services department, but that portion of a “911”

call containing the name, address, telephone number, and personal

information or information which might identify a person requesting

emergency service or reporting an emergency must be redacted by the

records custodian prior to disclosure.

The general purpose of Chapter 119, Florida Statutes, “is to open

public records to allow Florida’s citizens to discover the actions of their

government.”

The Public Records Act is to be liberally construed in

favor of open government, and exemptions from disclosure are to be

narrowly construed so they are limited to their stated purpose.

Any

doubt as to the applicability of a Public Records exemption should be

resolved in favor of disclosure rather than secrecy.

It is reasonable to conclude that the sound of a person’s voice “may”

identify the individual requesting emergency services or reporting

an emergency to someone who is acquainted with or related to the

caller.

The Legislature, however, has not chosen to specify that the

recording of an oral communication in an E911 call is protected from

disclosure. Rather, it appears that the issue was considered during the

2010 Legislative Session. Legislation was introduced in response to

a situation in which the family of an overdose victim had to endure

repeated playbacks of the 911 call reporting their son’s death.

Proposed Committee Bill 10-03a by the House Governmental Affairs

Policy Committee would have made conﬁ dential any recording of a

request for emergency services or report of an emergency using the

E911 system, allowing the release of a transcript of the recording 60

days after the date of the call or by court order upon a showing of good

cause. The bill, however, died in committee. The following year, Senate

Bill 1310 sought to amend section 365.171, Florida Statutes, to provide

that if an oral recording of a 911 emergency transmission is requested,

the recording must be digitally modiﬁ ed in order to protect the personal

identity of any person requesting emergency services or reporting an

emergency.

The bill was temporarily postponed while in committee

and was not addressed further.

Thus, while it could be asserted that the sound of a person’s voice

may identify an individual, the Legislature has considered legislation

requiring the distortion of a person’s voice requesting services or

reporting an emergency in a 911 recording and chose to not do so. This

ofﬁ ce recognizes, however, that advancements in technology to identify

a person by his or her voice may have created a need for the Legislature

to revisit the matter and would suggest that you seek legislative

clariﬁ cation in how best to protect the identity of an E911 caller.

Absent a clear provision for the conﬁ dentiality or exemption of a

voice recording of the person making an E911 call, I cannot conclude

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-01

that section 365.171(12), Florida makes the sound of a person’s voice

“information” which would identify the caller for purposes of redacting

conﬁ dential information from the call.

Article I, s. 24, Fla. Const., also recognizes a right of access to public

records of virtually all state and local governmental entities, including

the legislative, executive, and judicial branches.

See s. 24, Art. I, Fla. Const., recognizing an exception from public

disclosure for records exempted pursuant to the section or made

conﬁ dential by the Florida Constitution. Subsection (c) states: “The

legislature, however, may provide by general law passed by a two-thirds

vote of each house for the exemption of records from the requirements

of subsection (a) and the exemption of meetings from the requirements

of subsection (b), provided that such law shall state with speciﬁ city the

public necessity justifying the exemption and shall be no broader than

necessary to accomplish the stated purpose of the law.”

See s. 119.011(12), Fla. Stat., deﬁ ning “public records” to include:

all documents, papers, letters, maps, books, tapes, photographs,

ﬁ lms, 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 ofﬁ cial

business by any agency.

See also Ops. Att’y Gen. Fla. 93-60 (1993) and 90-43 (1990).

See Ops. Att’y Gen. Fla. 95-48 (1995), 93-60 (1993), and 90-43 (1990)

(while the portion of a voice recording revealing the name, address, and

telephone number of a person reporting an emergency or requesting

assistance using a “911” number is exempt from disclosure, the public

agency is required to release the remainder of the voice recording once

the exempt material has been deleted).

See Final Staff Analysis & Economic Impact Statement of CS/HB 1437,

House of Representatives Committee on Community Affairs, dated June

28, 1990.

Op. Att’y Gen. Fla. 93-60 (1993).

Christy v. Palm Beach County Sheriff’s Ofﬁ ce, 698 So. 2d 1365, 1366

(Fla. 4th DCA 1997).

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 (Fla. 1988); Tribune Company v. Public Records,

493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum

v. Tribune Company, 503 So. 2d 327 (Fla. 1987).

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-02

Tribune Company v. Public Records, supra.

Compare s. 817.568(1)(f)2., Fla. Stat., deﬁ ning “[p]ersonal identiﬁ cation

information” for purposes of the statute to include “[u]nique biometric

data, such as ﬁ ngerprint, voice print, retina or iris image, or other unique

physical representation[.]” (e.s.)

See http://www.palmbeachpost.com/news/news/state-regional/house-

leader-pushes-bill-to-keep-911-calls-private/nL5LM/.

See Bill Analysis and Fiscal Impact Statement, Florida Senate, SB

1310, dated April 3, 2011.

Governmental Oversight & Accountability Committee, Florida Senate,

April 5, 2011. See SB 1310 History at: http://www.ﬂ senate.gov/Session/

Bill/2011/1310#1310/?Tab=BillHistory&_suid=140993343915700764244

8516300654.

AGO 15-02 – January 28, 2015

PUBLIC RECORDS – UNDERCOVER PERSONNEL –

EXEMPTIONS – CRIMINAL JUSTICE AGENCY

PUBLIC RECORDS EXEMPTION FOR UNDERCOVER

PERSONNEL OF CITY’S CRIMINAL JUSTICE AGENCY

To: Mr. Jeffrey A. Chudnow, Chief of Police, City of Oviedo

QUESTION:

Do the provisions of section 119.071(4)(c), Florida Statutes,

which exempt “[a]ny information revealing undercover

personnel of any criminal justice agency” authorize the City

of Oviedo to exempt from public disclosure the names of law

enforcement officers of the city who are assigned to undercover

duty when a request is made for a personnel roster of any type

(pay roster, etc.) or a listing of all law enforcement officers of

the city when the record does not identify the officers as being

assigned to undercover duty?

SUMMARY:

Pursuant to section 119.071(4)(c), Florida Statutes,

information regarding law enforcement ofﬁ cers of the city who

are assigned to undercover duty and whose names appear on

personnel rosters or other lists of all law enforcement ofﬁ cers of

the city without regard to whether the record reveals the nature

of their duties may constitute “[a]ny information revealing

undercover personnel of any criminal justice agency[.]” The

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-02

Legislature’s determination that such information is exempt

from disclosure and copying under the Public Records Law,

rather than making such information conﬁ dential, conditions

the release of exempt information upon a determination by the

custodian that there is a statutory or substantial policy need for

disclosure.

Additional information contained in your request states that the

rosters or listings would not indicate that undercover activities are

being assigned by particular law enforcement ofﬁ cers or that particular

law enforcement ofﬁ cers perform undercover duty. However, the names

of undercover law enforcement ofﬁ cers are included in the general roster

or general listing of all city law enforcement ofﬁ cers.

The general purpose of Florida’s Public Records Law “is to open

public records to allow Florida’s citizens to discover the actions of their

government.”

While the Public Records Law is to be liberally construed

in favor of open government, exemptions from disclosure are to be

narrowly construed and limited to their stated purpose.

Section 119.071, Florida Statutes, provides general exemptions from

the inspection and copying requirements of Florida’s Public Records

Law. The statute containing the exemption about which you have

inquired, section 119.071(4)(c), Florida Statutes, provides:

Any information revealing undercover personnel of any

criminal justice agency is exempt from s. 119.07(1) and s. 24(a),

Art. I of the State Constitution. (e.s.)

The exemption’s applicability to “any information” suggests a broader

application of the exemption rather than a narrow one.

Clearly, the

names of undercover personnel would come within the scope of “any

information.” However, the information must “reveal” undercover

personnel of the criminal justice agency. The word “reveal” is generally

deﬁ ned as “to make known; disclose;”

but the Legislature has provided

no additional direction as to what “reveal” may mean.

Thus, the question becomes whether the names of undercover

personnel, without any reference to the nature of the duties performed

by those ofﬁ cers would reveal the ofﬁ cers as undercover personnel. The

governmental agency claiming the beneﬁ t of the exemption has the

burden of proving its entitlement to that exemption.

Florida courts and this ofﬁ ce have recognized that a distinction

exists between records which are conﬁ dential and records which are

only exempt from the mandatory disclosure requirements in section

119.07(1), Florida Statutes.

As the court in WFTV, Inc. v. School Board

of Seminole,

stated:

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-02

There is a difference between records the Legislature has

determined to be exempt from The Florida Public Records

Act and those which the Legislature has determined to be

exempt from The Florida Public Records Act and conﬁ dential.

If information is made conﬁ dential in the statutes, the

information is not subject to inspection by the public and may

only be released to the persons or organizations designated in

the statute. . . .

If records are not conﬁ dential but are only exempt from the

Public Records Act, the exemption does not prohibit the

showing of such information.

Thus, the exemption provided in section 119.071(4)(c), Florida

Statutes, does not absolutely prohibit the production of information

revealing undercover personnel under all circumstances.

In Attorney General Opinion 90-50, this ofﬁ ce considered those

circumstances under which information exempted pursuant to what is

now section 119.071(4)(d)2.a, Florida Statutes (providing an exemption

for home addresses, etc., of law enforcement personnel), may be released

by an agency.

Although the Legislature apparently chose to place the

release of this information within the discretion of the agency by making

it subject to an exemption rather than conﬁ dentiality, in light of the

underlying purpose of the enactment, i.e., the safety of law enforcement

ofﬁ cers and their families, any such discretion by the agency must be

exercised in light of that legislative purpose. Accordingly, the opinion

concluded that in determining whether such information should be

disclosed, an agency should consider whether there is a statutory or

substantial policy need for disclosure. In the absence of a statutory

or other legal duty to be accomplished by disclosure, an agency should

consider whether the release of such information is consistent with the

purpose of the exemption.

Likewise, section 119.071(4)(c), Florida Statutes, exempts any

information revealing undercover personnel of any criminal justice

agency from the disclosure provisions of section 119.07(1), Florida

Statutes. By making it the subject of an exemption, the Legislature

apparently chose to place the release of this information, once it has

been determined to “reveal” undercover personnel, within the discretion

of the agency. Whether particular information may “reveal” undercover

personnel is a determination which must be made in a case-by-case

consideration of the particular situation. Once the information is

determined to be exempt, the chief of police or the city is not required

to produce this information pursuant to a public records request. The

statute makes the information revealing undercover personnel exempt

rather than conﬁ dential and therefore would not appear to preclude the

release of such information, however, the purpose of the exemption, i.e.,

the safety of undercover personnel, must be considered in determining

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-02

whether such information should be released. Thus, as this ofﬁ ce has

previously advised, a custodian of such information should determine

whether there is a statutory or substantial policy need for disclosure

before releasing any information revealing undercover personnel.

In sum, it is my opinion that pursuant to section 119.071(4)(c),

Florida Statutes, information regarding law enforcement ofﬁ cers of the

city who are assigned to undercover duty and whose names appear on

personnel rosters or other lists of all law enforcement ofﬁ cers of the city

without regard to whether the record reveals the nature of their duties

may constitute “[a]ny information revealing undercover personnel of

any criminal justice agency[.]” The Legislature’s determination that

such information is exempt from disclosure and copying under the

Public Records Law, rather than making such information conﬁ dential,

conditions the release of exempt information upon a determination by

the custodian that there is a statutory or substantial policy need for

such disclosure.

Christy v. Palm Beach County Sheriff’s Ofﬁ ce, 698 So. 2d 1365, 1366

(Fla. 4th DCA 1997).

See National Collegiate Athletic Association v. Associated Press, 18 So.

3d 1201, 1206 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848 (Fla.

2010); 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 (Fla. 1988); Tribune Company v. Public

Records, 493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom.,

Gillum v. Tribune Company, 503 So. 2d 327 (Fla. 1987).

The word “any” is deﬁ ned to mean “one, a, an, or some; one or more

without speciﬁ cation or identiﬁ cation; . . . every; all[.]” Webster’s New

Universal Unabridged Dictionary (2003), p. 96. And see Op. Att’y Gen.

Fla. 74-311 (1974).

See Webster’s New Universal Unabridged Dictionary (2003), p. 1646;

and see The American Heritage Dictionary (ofﬁ ce edition 1987), p. 589.

See Christy v. Palm Beach County Sheriff’s Ofﬁ ce, 698 So. 2d 1365, 1367

(Fla. 4th DCA 1997); Barﬁ eld v. City of Ft. Lauderdale Police Department,

639 So. 2d 1012, 1015 (Fla. 4th DCA, 1994), review denied, 649 So. 2d 869

(Fla. 1994); Florida Freedom Newspapers, Inc. v. Dempsey, 478 So. 2d

1128, 1130 (Fla. 1st DCA 1985).

See, e.g., Ops. Att’y Gen. Fla. 07-21 (2007) (Legislature recognized a

distinction between “exempt” and “conﬁ dential;” conﬁ dential information

could not be revealed under any circumstances, exempt information could

be revealed at discretion of agency); 90-50 (1990).

874 So. 2d 48, 53 54 (Fla. 5th DCA 2004).

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-03

The exemptions in what are now ss. 119.071(4)(d)2.a. and 119.071(4)

(c), Fla. Stat., were amendments added to the statute by Ch. 79-187,

Laws of Fla., and would appear to be directed to the same purpose – the

protection of law enforcement personnel. See Title, Ch. 79-187, Laws

of Fla., “providing that certain . . . information . . . relating to . . . law

enforcement personnel . . . are exempt from disclosure provisions of the

public record law” and Inf. Op. to Amunds, dated June 8, 2012, discussing

the purpose of the exemption currently designated in s. 119.071(4)(d)2.a.,

Fla. Stat.

For example, in an Inf. Op. to Chief Lee Reese, Lake Worth Police

Department, dated April 25, 1989, this ofﬁ ce stated that the personnel

ﬁ les of the City of Lake Worth Police Department which revealed the

home addresses of former law enforcement personnel could be disclosed

to the State Attorney’s Ofﬁ ce for the purpose of serving criminal witness

subpoenas by mail pursuant to s. 48.031, Fla. Stat.

AGO 15-03 – January 28, 2015

GOVERNMENT IN THE SUNSHINE LAW – SETTLEMENT –

“CONCLUSION OF LITIGATION” – DISMISSAL

WITH PREJUDICE

WHETHER EXEMPTION FOR LITIGATION STRATEGY

MEETINGS WOULD EXTEND TO TRANSCRIPTS OF CLOSED

SESSIONS WHEN CLAIM DISMISSED WITH PREJUDICE, BUT

JURISDICTION TO ENFORCE RETAINED BY COURT

To: The Honorable Bruce H. Colton, State Attorney, Nineteenth Judicial

Circuit

QUESTION:

Does a dismissal with prejudice pursuant to a settlement

agreement that confers continuing jurisdiction on the court

to enforce the terms of the settlement agreement which have

not been fulfilled by the parties operate to conclude litigation

for purposes of section 286.011(8), Florida Statutes, to permit

the release of a transcript of a settlement or litigation strategy

session closed to the public while the litigation was ongoing?

SUMMARY:

A dismissal with prejudice pursuant to a settlement agreement

that confers continuing jurisdiction on the court to enforce

the terms of the settlement agreement would operate as a

conclusion of the litigation for purposes of section 286.011(8),

Florida Statutes, making the transcript of a settlement or

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-03

litigation strategy session which was closed to the public while

the litigation was ongoing, open for inspection and copying.

According to your letter, a municipality within the Nineteenth Judicial

Circuit was sued. Pursuant to section 286.011(8), Florida Statutes,

the governing body of the municipality held a settlement or litigation

strategy session that was closed to the public. The municipality

subsequently reached a settlement agreement with the plaintiff. The

settlement agreement was approved by the court and the lawsuit was

dismissed with prejudice, but the court retained jurisdiction to enforce

the terms of the agreement. The terms of the agreement have not yet

been satisﬁ ed and you note that the parties may seek to invoke the

jurisdiction of the court to enforce the terms of the agreement. A

copy of the transcript of the closed litigation strategy session has

been requested, but the municipality is concerned that releasing the

transcript when further litigation to enforce the settlement agreement

may occur would allow the plaintiff to gain access to the transcript and

use it to its advantage in future litigation. The Nineteenth Judicial

Circuit State Attorney’s Ofﬁ ce became involved in this matter as it is

the State Attorney who is statutorily charged with investigation and

prosecution of Public Records violations.

You have advised this ofﬁ ce

that you have discussed your request for an Attorney General’s Opinion

with the city attorney involved in the litigation who has agreed that an

Opinion on this question would be helpful.

Discussions between a public board and its attorney are generally

subject to the requirements of the Government in the Sunshine Law,

section 286.011, Florida Statutes.

However, the statute provides a

limited exemption for certain discussions of pending litigation between

a public board and its attorney. As provided in the statute:

(8) Notwithstanding the provisions of subsection (1), any board

or commission of any state agency or authority or any agency

or authority of any county, municipal corporation, or political

subdivision, and the chief administrative or executive ofﬁ cer of

the governmental entity, may meet in private with the entity’s

attorney to discuss pending litigation to which the entity is

presently a party before a court or administrative agency,

provided that the following conditions are met:

(a) The entity’s attorney shall advise the entity at a public

meeting that he or she desires advice concerning the litigation.

(b) The subject matter of the meeting shall be conﬁ ned to

settlement negotiations or strategy sessions related to litigation

expenditures.

reporter. The reporter shall record the times of commencement

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-03

and termination of the session, all discussion and proceedings,

the names of all persons present at any time, and the names of

all persons speaking. No portion of the session shall be off the

record. The court reporter’s notes shall be fully transcribed and

ﬁ led with the entity’s clerk within a reasonable time after the

meeting.

(d) The entity shall give reasonable public notice of the time

and date of the attorney client session and the names of persons

who will be attending the session. The session shall commence

at an open meeting at which the persons chairing the meeting

shall announce the commencement and estimated length of the

attorney client session and the names of the persons attending.

At the conclusion of the attorney client session, the meeting

shall be reopened, and the person chairing the meeting shall

announce the termination of the session.

(e) The transcript shall be made part of the public record upon

conclusion of the litigation. (e.s.)

When considering the construction of this provision, Florida courts

have held that the Legislature intended a strict construction of the

exemption.

Applying such strict construction, this ofﬁ ce concluded

that the exemption in section 286.011(8), Florida Statutes, did not

apply when no lawsuit had been ﬁ led even though the parties involved

in the dispute believed that litigation was inevitable.

However, when

on-going litigation had been suspended temporarily pursuant to a

stipulation for settlement, this ofﬁ ce stated that the litigation had not

been concluded for purposes of section 286.011(8), Florida Statutes,

and therefore, a transcript of meetings held between the city and its

attorney to discuss such litigation could be kept conﬁ dential until the

litigation was concluded.

Your factual situation involves transcripts of strategy sessions relating

to a complaint in an action that has been dismissed with prejudice.

This ofﬁ ce, in Attorney General Opinion 94-33, concluded that to give

effect to the purpose of section 286.011(8), Florida Statutes, a public

agency may maintain the conﬁ dentiality of a record of a strategy or

settlement meeting between a public agency and its attorney until the

suit is dismissed with prejudice or the applicable statute of limitations

has run. That opinion involved the question of whether a voluntary

dismissal operated to conclude litigation for purposes of section

286.011(8), Florida Statutes. The plaintiff in the action had previously

ﬁ led lawsuits against the Gainesville-Alachua County Regional Airport

Authority and voluntarily dismissed these actions after a year or two of

litigation. The airport authority was concerned that the plaintiff would

dismiss his suits, allege that the litigation was concluded, request a

copy of the transcript of strategy meetings, and then reﬁ le the lawsuits.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-03

In a subsequent opinion, Attorney General Opinion 13-13, the Citrus

County School Board was sued in federal court by three plaintiffs

who alleged that they had been denied equal access to educational

opportunities and that retaliatory action had been taken against them.

The matter was resolved between the parties and the complaint was

dismissed with prejudice by the court. Subsequently, claims were ﬁ led

by the parents of the original plaintiffs which derived directly from

the same facts and circumstances litigated in the original lawsuit. A

request for the transcripts of the meetings between the school board

and its attorney pursuant to section 286.011(8), Florida Statutes,

was received from the parent of two of the original plaintiffs. Shortly

thereafter, a complaint against the school board was ﬁ led in federal

court by the parents of the original plaintiffs based on the complaints

made by their daughters in the original lawsuit. The attorneys for the

Citrus County School Board asked whether the language in section

286.011(8)(e), Florida Statutes, requiring the release of transcripts of

closed meetings held to discuss settlement negotiations and litigation

expenditure strategy upon the “conclusion of the litigation” would apply

in light of the ﬁ ling of the subsequent, derivative claim. As was noted

in Attorney General Opinion 13-13, “[i]n light of the language of section

286.011(8)(e), Florida Statutes, making the transcripts of strategy

meetings held pursuant to that section public records ‘upon conclusion

of the litigation,’ it does not appear that the Legislature intended to

recognize a continuation of the exemption for ‘derivative claims.’”

In a recent Second District case, Chmielewski v. City of St. Pete

Beach,

the court commented favorably on Attorney General Opinion

13-13 and held that a “shade meeting” transcript, prepared pursuant to

section 286.011(8), Florida Statutes, became a matter of public record

at the entry of a ﬁ nal judgment at the conclusion of a quiet title action.

The ﬁ nal judgment contained executory provisions which the city

characterized as enforcement proceedings resulting from the settlement

of an earlier lawsuit. The court rejected the city’s characterization

and stated that nothing in the settlement of the earlier lawsuit could

be interpreted to suggest that the quiet title lawsuit was still open,

ongoing, or capable of being reopened as to that issue. Thus, the court

held that “[t]he transcript does not regain ‘secret’ status just because a

new tangentially related lawsuit is ﬁ led.”

You have advised this ofﬁ ce that a settlement agreement has been

reached and the lawsuit has been dismissed with prejudice. “Dismissed

with prejudice” is commonly understood to mean “[a] dismissal,

usually after an adjudication on the merits, barring the plaintiff from

prosecuting any later lawsuit on the same claim.”

While it appears

that the court has retained jurisdiction to enforce the terms of the

settlement agreement, a lawsuit on the same claim is precluded by the

dismissal with prejudice. Thus, this litigation appears to be concluded

and section 286.011(8), Florida Statutes, requires that “[t]he transcript

shall be made part of the public record upon conclusion of the litigation.”

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-03

(e.s.)

In sum, it is my opinion that a dismissal with prejudice pursuant to a

settlement agreement that confers continuing jurisdiction on the court

to enforce the terms of the settlement agreement would operate as a

conclusion of the litigation for purposes of section 286.011(8), Florida

Statutes, making the transcript of a settlement or litigation strategy

session which was closed to the public while the litigation was ongoing

a public record which would be open for inspection and copying.

See Op. Att’y Gen. Fla. 91-38 (1991) (a state attorney may prosecute

suits charging public ofﬁ cials with violations of the Public Records Act,

including those violations which may result in a ﬁ nding of guilt for a

noncriminal infraction); and s. 119.10, Fla. Stat. (violations of Ch. 119,

Fla. Stat.).

See Neu v. Miami Herald Publishing Company, 462 So. 2d 821 (Fla.

1985) (s. 90.502, Fla. Stat., providing for the conﬁ dentiality of attorney

client communications under the Florida Evidence Code, does not create

an exemption for attorney client communications at public meetings;

application of the Sunshine Law to such discussions does not usurp

Supreme Court’s constitutional authority to regulate the practice of

law, nor is it at odds with Florida Bar rules providing for attorney client

conﬁ dentiality). Cf. s. 90.502(6), Fla. Stat., stating that a discussion or

activity that is not a meeting for purposes of s. 286.011, Fla. Stat., shall

not be construed to waive the attorney client privilege.

See City of Dunnellon v. Aran, 662 So. 2d 1026 (Fla. 5th DCA 1995);

and see School Board of Duval County v. Florida Publishing Company,

670 So. 2d 99 (Fla. 1st DCA 1996).

See Ops. Att’y Gen. Fla. 13-13 (2013), 04-35 (2004), and 98-21 (1998).

And see Ops. Att’y Gen. Fla. 06 03 (2006) (exemption not applicable to pre

litigation mediation proceedings) and 09-25 (2009) (town council which

received pre suit notice letter under the Bert J. Harris Act, s. 70.001, Fla.

Stat., is not a party to pending litigation for purposes of s. 286.011[8], Fla.

Stat.).

See Op. Att’y Gen. Fla. 94 64 (1994). And see Ops. Att’y Gen. Fla. 06-03

(2006) (exemption not applicable to pre litigation mediation proceedings)

and 09 25 (2009) (town council which received pre suit notice letter under

the Bert J. Harris Act, s. 70.001, Fla. Stat., is not a party to pending

litigation for purposes of s. 286.011[8], Fla. Stat.).

And see Op. Att’y Gen. Fla. 94-33 (1994) (a public agency may maintain

the conﬁ dentiality of a record of a strategy or settlement meeting between

a public agency and its attorney until the suit is dismissed with prejudice

or the applicable statute of limitations has run). Cf. Op. Att’y Gen. Fla.

96-75 (1996) (disclosure of medical records to city council during closed

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-04

door meeting under s. 286.011(8), Fla. Stat., does not affect requirement

that transcript of such meeting be made part of public record at conclusion

of litigation).

161 So. 3d 521, 2014 WL 4212742 (Fla. 2d DCA 2014).

And see Wagner v. Orange County, 960 So. 2d 785 (Fla. 5th DCA 2007),

noting that conclusion of litigation generally occurs when ﬁ nal judgment

is entered. The court in Wagner concluded that the phrase “conclusion

of the litigation or adversarial administrative proceedings” for purposes

of the attorney work product exemption in s. 119.071(1)(d), Fla. Stat.,

encompasses post-judgment collection efforts such as a legislative claims

bill.

Black’s Law Dictionary (8th ed.), p. 502.

AGO 15-04 – January 28, 2015

MUNICIPALITIES – CONSTRUCTION CONTRACTORS –

BOND

MUNICIPALITY REQUIRED TO ACCEPT ALTERNATIVE FORMS

OF SECURITY FOR PAYMENT AND PERFORMANCE BOND

To: Mr. Patrick G. Gilligan, City Attorney for the City of Ocala

QUESTION:

Does section 255.05(7), Florida Statutes, require that a

municipality accept alternate forms of security from a contractor

for public construction projects?

SUMMARY:

Section 255.05(7), Florida Statutes, authorizes a contractor

to ﬁ le alternative forms of security with the city for public

construction projects and provides no discretion in the

municipality to refuse to accept the alternate forms of security

authorized in that subsection provided these alternate forms of

security are determined to be of sufﬁ cient value.

According to the information you have forwarded to this ofﬁ ce, the

City of Ocala issues numerous invitations to bid for public construction

projects that require the successful bidding contractor to purchase and

provide a payment and performance bond pursuant to section 255.05,

Florida Statutes, prior to beginning construction. Subsection (7) of

the statute states that “[i]n lieu of the bond required by this section,

a contractor may ﬁ le with the state, county, city, or other political

authority an alternative form of security in the form of cash, a money

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-04

order, a certiﬁ ed check, a cashier’s check, an irrevocable letter of credit,

or a security of a type listed in part II of chapter 625.”

You advise that the city would prefer not to be involved in evaluating

alternate forms of security to ensure that such security satisﬁ es statutory

requirements and is of sufﬁ cient value to serve the same purpose as a

bond. Further, the city would prefer that suppliers and subcontractors

in payment disputes with the contractor look to the payment bond for

compensation and not to the municipality holding the alternate form of

security.

The city has asked for this ofﬁ ce’s assistance in determining whether

it is authorized to only accept a payment and performance bond

pursuant to section 255.05(1), Florida Statutes, and to make clear in its

bid documents that it will not accept the alternate forms of security set

forth in subsection (7) of 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.

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.”

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 mechanic’s

lien cannot be perfected against public property.

Section 255.05(1), Florida Statutes, about which you have speciﬁ cally

inquired, provides, in part, that:

A 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 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.

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.

The statute relating to public contractors’ bonds was patterned

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-04

after the federal Miller Act

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.

The statute

is also designed to afford protection to both the surety on the project

and the public. The bond 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.

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.”

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.

Florida’s

little Miller Act is remedial in nature and thus, is entitled to a liberal

construction, within reason, to effect its intended purpose.

The statute

has existed as a part of the Florida Statutes since 1915.

Subsection (7) of section 255.05, Florida Statutes, authorizes

contractors constructing public buildings to ﬁ le alternative forms

of security to satisfy the statutory requirements for a payment and

performance bond. Subsection (7) states:

In lieu of the bond required by this section, a contractor may

ﬁ le with the state, county, city, or other political authority an

alternative form of security in the form of cash, a money order, a

certiﬁ ed check, a cashier’s check, an irrevocable letter of credit,

or a security of a type listed in part II of chapter 625. Any such

alternative form of security shall be for the same purpose and

be subject to the same conditions as those applicable to the bond

required by this section. The determination of the value of an

alternative form of security shall be made by the appropriate

state, county, city, or other political subdivision.

Among the purposes of section 255.05, Florida Statutes, is the

protection of subcontractors and suppliers by providing them with an

alternative remedy to mechanics liens on public projects. Legislative

history for section 255.05, Florida Statutes, expresses the Legislature’s

intent that contractors be authorized to ﬁ le an alternative form of

security to address the concern that:

Contractors which currently are unable to enter into

construction and repair contracts because of an inability to

obtain a perfomance [sic] bond would be able to do so, provided

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-04

they could ﬁ le an alternative form of security.

Nothing in subsection (7) would authorize a local governmental

agency to limit its acceptance of alternative forms of security or foreclose

that option entirely. Rather, the statute requires, by use of the word

“shall,”

local governments to develop a system for determining the

value of alternative forms of security for public projects.

In sum, it is my opinion that section 255.05(7), Florida Statutes,

authorizes a contractor to ﬁ le alternative forms of security with the city

for public construction projects in the manner provided therein, and, as

such, provides no discretion in the municipality to refuse to accept the

alternate forms of security authorized in that subsection.

Chapter 625, Fla. Stat., is entitled “Accounting, Investments, and

Deposits by Insurers” and Part II relates to investments by domestic

insurers and commercially domiciled insurers.

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.

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. And see s. 713.01(26), Fla. Stat., deﬁ ning

“real property” for purposes of this part to exclude governmental property.

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).

See 40 U.S.C.A. ss. 3131-3134 (formerly codiﬁ ed as 40 U.S.C.A. ss.

270a-270d).

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 Beneﬁ t of Dixie Plywood Co. of Tampa v. National Fire Insurance

Co. of Hartford, 105 So. 2d 190 (Fla. 2d DCA 1958).

See American Home Assurance Company, supra n.4 at 363 and Coastal

Caisson, supra n.4 at 793.

See Palm Beach County v. Trinity Industries, Inc., 661 So. 2d 942

(Fla. 4th DCA 1995) (county liable to subcontractor which had supplied

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-05

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).

American Home Assurance Company, supra n.4.

See, e.g., Aquatic Plant Management, Inc. v. Paramount Engineering,

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).

See s. 1, Ch. 6867, Laws of Fla. (1915).

Senate Staff Analysis and Economic Impact Statement on SB 907 (Ch.

84-288, Laws of Fla.), dated April 24, 1984.

The word “shall” is normally used in a statute to connote a mandatory

requirement. See, e.g., Drury v. Harding, 461 So. 2d 104 (Fla. 1984);

Holloway v. State, 342 So. 2d 966 (Fla. 1977); Neal v. Bryant, 149 So. 2d

529 (Fla. 1962).

AGO 15-05 – January 28, 2015

COMMUNITY REDEVELOPMENT AGENCY – MUNICIPALITY

WHETHER CITY AUTHORIZED TO CHANGE COMPOSITION OF

APPOINTED COMMUNITY REDEVELOPMENT AGENCY BOARD

To: Mr. James C. Brady, City Attorney for the City of Lauderdale Lakes

QUESTIONS:

1. May the City of Lauderdale Lakes, through an adopted

ordinance, change the Commission of the Lauderdale Lakes

Redevelopment Agency from the original Commission adopted

pursuant to section 163.357(1), Florida Statutes, to one

established under section 163.356(2), Florida Statutes?

2. May the City of Lauderdale Lakes, by ordinance, provide

for a seven-member Commission for the Lauderdale Lakes

Redevelopment Agency, pursuant to section 163.357(1)(c),

Florida Statutes, by appointing one or two additional members

to the CRA Commission, in circumstances in which the original

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-05

seven-member governing body appointed itself as the CFA

Commission, but a recent city charter revision reduced the

number of the governing body to six (6) members?

SUMMARY:

1. Having exercised its authority to appoint a board of

commissioners for the Lauderdale Lakes Redevelopment

Agency and having appointed the city commission to serve as

the board of that agency, the city has no authority to change the

composition of the board of commissioners.

2. Section 163.357(1)(c), Florida Statutes, provides that a

governing body which consists of ﬁ ve members may appoint

two additional persons to act as members of the community

redevelopment agency. The statute does not authorize a

governing body of six to appoint any additional persons to the

community redevelopment agency.

According to your letter, the City of Lauderdale Lakes established

the Lauderdale Lakes Community Redevelopment Agency (the “CRA”)

in 2000, and appointed the City’s seven-member governing body as the

CRA’s Commission or governing board. In 2013, the Charter of the City

of Lauderdale Lakes was revised and beginning with the election of

November 2014, the City’s governing body was reduced to six members

which resulted in a reduction in the CRA’s board to six members. The

charter’s changes will result in a ﬁ nal reduction in the city’s governing

body, and the CRA board, in November 2016, when the city’s governing

body will be reduced to ﬁ ve members. The city is concerned that, with

a governing board of six members, the CRA “will ﬁ nd itself hamstrung

by tie votes on items of vital business.” You have contacted this ofﬁ ce

for assistance in determining whether the city is authorized to alter the

composition of the CRA board.

The Community Redevelopment Act, Part III, Chapter 163, Florida

Statutes, was enacted to enable counties and municipalities to eliminate

and prevent the development or spread of slums and urban blight,

encourage needed community redevelopment, and provide for the

redevelopment of slums and blighted areas.

Upon making the requisite

ﬁ ndings, a county or municipality is authorized to create a community

redevelopment agency to carry out the purposes set forth in the act.

The act prescribes with particularity the structural organization

and powers of such agencies and the composition, number, and terms

of ofﬁ ce of the members thereof. Section 163.356(2), Florida Statutes,

provides that the governing body of the county or municipality creating

the community redevelopment agency shall appoint by ordinance a

board of commissioners for the agency “which shall consist of not fewer

than ﬁ ve or more than nine commissioners.” The governing body of

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-05

the county or municipality is authorized to remove a commissioner “for

inefﬁ ciency, neglect of duty, or misconduct in ofﬁ ce only after a hearing

and only if he or she has been given a copy of the charges at least 10

days prior to such hearing and has had an opportunity to be heard in

person or by counsel.”

As an alternative to the appointment of a board of commissioners,

the governing body may declare itself to be a community redevelopment

agency through adoption of a resolution.

In such cases all rights,

powers, duties, privileges, and immunities vested by Part III, Chapter

163, Florida Statutes, in the community redevelopment agency are

vested in the governing body of the municipality.

Section 163.357(1)

(b), Florida Statutes, provides:

The members of the governing body shall be the members of the

agency, but such members constitute the head of a legal entity,

separate, distinct, and independent from the governing body of

the county or municipality. If the governing body declares itself

to be an agency which already exists, the new agency is subject

to all of the responsibilities and liabilities imposed or incurred

by the existing agency. (e.s.)

According to your letter, the City Commission of the City of

Lauderdale Lakes has exercised this option and designated itself to be

the community redevelopment agency.

In Attorney General Opinion 84-74, this ofﬁ ce concluded that a city

commission was not authorized to alter the composition of a community

redevelopment agency or to increase or decrease the number or ratio

of its members, given the speciﬁ c statutorily prescribed organization

and powers of these agencies.

That opinion required consideration

of whether a city commission, if it declared itself to be the community

redevelopment agency pursuant to section 163.357(1), Florida Statutes,

was authorized to alter the composition of the board of commissioners

of the agency by changing the ratio or number of city commissioners

and citizens sitting on the board from that prescribed in the statute. In

response to that question, the opinion concluded that the governing body

of a municipality in establishing a community redevelopment agency

pursuant to Part III, Chapter 163, Florida Statutes, the Community

Redevelopment Act of 1969, as amended, does not have the authority to

alter the composition of the board of commissioners of the community

redevelopment agency from that prescribed by statute.

In a later opinion of this ofﬁ ce, Attorney General Opinion 89-60, the

question presented was whether a city council member who served as a

member of the community redevelopment agency established pursuant

to Part III, Chapter 163, Florida Statutes, could resign as a member of

the community redevelopment agency. The city council in that request

had designated itself as the board of commissioners of the CRA. After

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-05

reviewing the provisions of Part III, Chapter 163, Florida Statutes,

prescribing with particularity the structural organization and powers of

such agencies and the composition and number of its members and their

terms of ofﬁ ce, it was concluded that no provision of Part III, Chapter

163, Florida Statutes, granted an individual member of the governing

body of a municipality, the discretion or option of whether to serve as a

member of that board. As the Attorney General Opinion notes:

The authority of public ofﬁ cers to proceed in a particular way

or under speciﬁ c conditions implies a duty not to proceed in any

other manner than that which is authorized by law.

Therefore,

it appears that an individual would not be authorized to resign

from one ofﬁ ce and not the other. The two positions work in

tandem; to be a member of the city council entails being a

member of the board of commissioners of the redevelopment

agency. Once the governing body has elected to serve as the

board of commissioners for the community redevelopment

agency, the individual members of the governing body of the

municipality would appear to be bound by such an election.

Similarly, the City of Lauderdale Lakes elected in 2000 to appoint

itself as the Commission for the Lauderdale Lakes Redevelopment

Agency pursuant to section 163.357(1)(a), Florida Statutes. Nothing

in section 163.357, Florida Statutes, authorizes the city to alter this

election or to modify the composition of the board outside the scope

of the statute. Section 163.357(1)(c), Florida Statutes, does provide a

municipal governing body of ﬁ ve members which has appointed itself

as the CRA board, the discretion to appoint two additional persons to

act as members of the CRA. No authority is extended by the statute to

act otherwise.

See s. 163.335, Fla. Stat., setting forth the legislative ﬁ ndings and

declarations of necessity.

See ss. 163.355 and 163.356, Fla. Stat., providing for the ﬁ nding of

necessity by the county or municipality and the creation of the community

redevelopment agency.

Section 163.356(4), Fla. Stat.

Section 163.357(1)(a), Fla. Stat.

See s. 163.357(1)(b), Fla. Stat., providing:

The members of the governing body shall be the members of the

agency, but such members constitute the head of a legal entity,

separate, distinct, and independent from the governing body

of the county or municipality. If the governing body declares

itself to be an agency which already exists, the new agency is

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-06

subject to all of the responsibilities and liabilities imposed or

incurred by the existing agency.

Citing First Nat. Bank of Key West v. Filer, 145 So. 204, 207 (Fla. 1933)

(authority of public ofﬁ cers to proceed in a particular way or only upon

speciﬁ c conditions implies a duty not to proceed in any other manner

than that which is authorized by law); and see, e.g., Ops. Att’y Gen. Fla.

98-16 (1998) (city commission serving as governing body of CRA cannot

remove one of its members only from CRA nor may member resign

from CRA while still retaining seat on city commission); 91-49 (1991)

(city commission declaring itself to be CRA is a separate, distinct and

independent legal entity, chairman and vice chairman of which are

designated by city commission); 89-60 (1989) (member of governing body

of municipality not authorized to resign from CRA board where governing

body of municipality has designated itself as head of agency pursuant to

s. 163.357, Fla. Stat.)

First National Bank of Key West v. Filer, 145 So. 204, 207 (Fla. 1933)

(where the Legislature has prescribed the mode, that mode must be

observed). And see Op. Att’y Gen. Fla. 84-74 (1984) (municipal governing

body in establishing community redevelopment agency does not have

authority to alter composition of board of commissioners of agency from

that prescribed by statute). Cf. Op. Att’y Gen. Fla. 84-56 (1984) (where

Legislature has prescribed term and cycle of membership of governing

body of municipal housing authority, municipality has no authority to

alter such terms); Op. Att’y Gen. Fla. 78-115 (1978).

AGO 15-06 – April 16, 2015

SECURITY SYSTEMS – VIDEO SURVEILLANCE TAPES –

PUBLIC RECORDS

VIDEO TAPES FROM SURVEILLANCE CAMERAS ARE

CONFIDENTIAL AND EXEMPT FROM PUBLIC INSPECTION

To: Mr. Alan S. Zimmet, General Counsel for Pinellas Suncoast Transit

Authority

QUESTION:

Are surveillance video recordings from PSTA facilities exempt

from public disclosure pursuant to sections 119.071(3)(a) and

281.301, Florida Statutes (as part of a security system plan), and

section 119.071(2)(d), Florida Statutes (as information revealing

the surveillance techniques or procedures of an agency)?

SUMMARY:

Surveillance tapes from a security system for a public building

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-06

constitute information which reveals a security system which

is conﬁ dential pursuant to sections 119.071(3)(a) and 281.301,

Florida Statutes.

Chapter 119, Florida Statutes, Florida’s Public Records Law, provides

a right of access to the records of state and local governments as well as

private entities acting on their behalf.

This right of access applies to

all materials made or received in connection with the conduct of ofﬁ cial

business, when such materials are used to perpetuate, communicate, or

formalize knowledge.

All such materials are open for inspection and

copying, unless the Legislature has exempted them from disclosure.

Clearly, video surveillance recordings created in the course of ofﬁ cial

business of the PSTA would be public records.

Your question, however,

implicates the exemptions for security systems and surveillance

techniques contained in sections 281.301 and 119.071, Florida Statutes.

Section 281.301, Florida Statutes, provides:

Security systems; records and meetings exempt from public

access or disclosure.—Information relating to the security

systems for any property owned by or leased to the state or

any of its political subdivisions, and information relating

to the security systems for any privately owned or leased

property which is in the possession of any agency as deﬁ ned in

s. 119.011(2), including all records, information, photographs,

audio and visual presentations, schematic diagrams, surveys,

recommendations, or consultations or portions thereof relating

directly to or revealing such systems or information, and all

meetings relating directly to or that would reveal such systems

or information are conﬁ dential and exempt from ss. 119.07(1)

and 286.011 and other laws and rules requiring public access

or disclosure. (e.s.)

This exemption was clariﬁ ed and recreated in section 119.071, Florida

Statutes, during the 2001 Legislative Session.

Section 119.071(3)(a)2.,

Florida Statutes, provides:

2. A security system plan or portion thereof for:

a. Any property owned by or leased to the state or any of its

political subdivisions; or

b. Any privately owned or leased property held by any agency

is conﬁ dential and exempt from s. 119.07(1) and s. 24(a), Art. I

of the State Constitution.

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As used in this section , the term a “security system plan” includes

“all . . . [r]ecords, information, photographs, audio and visual

presentations, schematic diagrams, surveys, recommendations, or

consultations or portions thereof relating directly to the physical

security of the facility or revealing security systems[.]

(e.s.)

These provisions were previously addressed by this ofﬁ ce when asked

whether the names and addresses of applicants for security system

permits from a city’s building department, as well as the names and

addresses of persons or businesses cited for false alarms and addresses

where false alarms were reported, were public records open to inspection

and copying. In Attorney General Opinion 2004-28, this ofﬁ ce cited the

Legislature’s speciﬁ c ﬁ nding of a public necessity for the exemption

in section 119.071, Florida Statutes, to ensure public safety, before

concluding that the names and addresses of applicants for permits to

install security systems would be information which would reveal the

existence of a security system and, therefore, would be exempt from

public disclosure.

The Second District Court of Appeal, in Critical Intervention

Services, Inc. v. City of Clearwater,

cited with approval the discussion

in Attorney General Opinion 2004-28, when it addressed whether the

identity of residential and business alarm permit holders was subject to

disclosure. The city relied upon sections 281.301 and 119.071, Florida

Statutes, to deny access to the information. The court found that the

plain language of the statutes makes conﬁ dential all records revealing

a security system and stated that disclosure of such information “would

imperil the safety of persons and property.”

More recently, the Fifth District Court of Appeal in Central Florida

Regional Transportation Authority d/b/a Lynx v. Post-Newsweek

Stations, Orlando, Inc.,

considered whether security tapes from

cameras installed on transit authority buses were conﬁ dential as

revealing the security system. Citing the provisions in section 281.301,

Florida Statutes, which state records that directly relate to or reveal

information about security systems are conﬁ dential, the court concluded

that the video footage captured by the bus camera “directly relates to

and reveals information about a security system.” The court found

that the videos “which are records, reveal the capabilities—and as a

corollary, the vulnerabilities—of the current system[,]” and, therefore,

are conﬁ dential and exempt from public inspection.

Similarly, a surveillance tape from the cameras installed at the

transit authority’s facilities is information which would reveal the

existence of a security system. As such, it is my opinion that the

surveillance tapes which are made by a security system, while public

records, are conﬁ dential and exempt from the disclosure requirements

of the Public Records Law pursuant to sections 281.301 and 119.071,

Florida Statutes.

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See s. 119.01(1), Fla. Stat., setting forth the general state policy on

public records, and s. 119.011(2), Fla. Stat, deﬁ ning “[a]gency” to include

“any other public or private agency, person, partnership, corporation, or

business entity acting on behalf of any public agency.”

And see Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc.,

379 So. 2d 633, 640 (Fla. 1980) (“public records” encompass all materials

made or received by an agency in connection with ofﬁ cial business which

are used to perpetuate, communicate, or formalize knowledge).

See Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla.

1979).

See s. 119.011(12), Fla. Stat, deﬁ ning “Public records” as “all

documents, papers, letters, maps, books, tapes, photographs, ﬁ lms, 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

ofﬁ cial business by any agency.”

While your question includes s. 119.071(2)(d), Fla. Stat., it would

appear that the provisions in subsection (2) of the statute relate to

undercover law enforcement activities and you have not indicated that

the surveillance cameras within the PSTA facility are used for such

purposes.

See s. 1, Ch. 2001-361, Laws of Fla.

Section 119.071(3)(a)1., Fla. Stat.

908 So. 2d 1195 (Fla. 2d DCA 2005).

908 So. 2d at 1197.

157 So. 3d 401 (Fla. 5th DCA 2015).

AGO 15-07 – April 16, 2015

COUNTIES – TAXATION – ECONOMIC DEVELOPMENT AD

VALOREM TAX EXEMPTION – IMPROVEMENTS

TAX EXEMPTION FOR IMPROVEMENTS TO PROPERTY MADE

PRIOR TO ADOPTION OF ORDINANCE

To: Mr. Donald D. Conn, County Attorney for DeSoto County

QUESTION:

Pursuant to section 196.1995(5), Florida Statutes, is the Board

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-07

of County Commissioners of DeSoto County authorized to grant

an exemption from ad valorem taxation to a private purchaser

of real property and improvements thereon, when those

improvements had been exempt from taxation as governmentally

owned property prior to the date of purchase, and the purchaser

intends to operate a new business on that real property using

said improvements?

SUMMARY:

To qualify for the economic development ad valorem

tax exemption in section 196.1995(5), Florida Statutes,

improvements to real property must be made or tangible

personal property must be added or increased after the date

the ordinance authorizing the exemption is adopted.

Thus, to

qualify for this exemption from ad valorem taxation in DeSoto

County, the improvements must have been made after January

25, 2011, and section 196.1995(5), Florida Statutes, would appear

to preclude application of the exemption to any improvements

to real property made prior to that date.

According to information you have provided to this ofﬁ ce, there is a

sale pending by the State of Florida of real property and improvements

located in DeSoto County, to a private party. The property was formerly

used as the G. Pierce Wood Memorial Hospital, which closed in 2001,

and a facility operated by the Department of Juvenile Justice, which

closed in 2012. A private purchaser will operate a business leasing the

real property and improvements formerly owned by the State of Florida.

The voters of DeSoto County approved by referendum in 2010 and

the commission subsequently adopted an ordinance authorizing an

exemption from ad valorem taxation for certain new business and

expansion of existing businesses in accordance with section 196.1995,

Florida Statutes. It appears that you are concerned that the terms of

the ordinance may prove problematic for application of the economic

development ad valorem tax exemption to this property. The Florida

Attorney General’s Ofﬁ ce is statutorily limited to providing legal

opinions on questions of state law and does not comment on local

legislation such as the DeSoto County ordinance.

To the extent that

resolution of this question requires consideration of section 196.1995,

Florida Statutes, however, the following discussion is provided in an

effort to be of assistance.

Article VII, section 3(c) of the Florida Constitution, provides:

Any county or municipality may, for the purpose of its

respective tax levy and subject to the provisions of this

subsection and general law, grant community and economic

development ad valorem tax exemptions to new businesses

BIENNIAL REPORT OF THE ATTORNEY GENERAL

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and expansions of existing businesses, as deﬁ ned by general

law. Such an exemption may be granted only by ordinance of

the county or municipality, and only after the electors of the

county or municipality voting on such question in a referendum

authorize the county or municipality to adopt such ordinances.

An exemption so granted shall apply to improvements to

real property made by or for the use of a new business and

improvements to real property related to the expansion of an

existing business and shall also apply to tangible personal

property of such new business and tangible personal property

related to the expansion of an existing business. The amount

or limits of the amount of such exemption shall be speciﬁ ed

by general law. The period of time for which such exemption

may be granted to a new business or expansion of an existing

business shall be determined by general law. The authority to

grant such exemption shall expire ten years from the date of

approval by the electors of the county or municipality, and may

be renewable by referendum as provided by general law. (e.s.)

Section 196.1995, Florida Statutes, implements this constitutional

provision.

Subsection (5) of the statute, addresses the granting of an

exemption and states:

Upon a majority vote in favor of such authority, the board

of county commissioners or the governing authority of the

municipality, at its discretion, by ordinance may exempt from

ad valorem taxation up to 100 percent of the assessed value

of all improvements to real property made by or for the use of

a new business and of all tangible personal property of such

new business, or up to 100 percent of the assessed value of all

added improvements to real property made to facilitate the

expansion of an existing business and of the net increase in all

tangible personal property acquired to facilitate such expansion

of an existing business. To qualify for this exemption, the

improvements to real property must be made or the tangible

personal property must be added or increased after approval

by motion or resolution of the local governing body, subject

to ordinance adoption or on or after the day the ordinance

is adopted. However, if the authority to grant exemptions

is approved in a referendum in which the ballot question

contained in subsection (3) appears on the ballot, the authority

of the board of county commissioners or the governing authority

of the municipality to grant exemptions is limited solely to

new businesses and expansions of existing businesses that

are located in an enterprise zone or brownﬁ eld area. Property

acquired to replace existing property shall not be considered to

facilitate a business expansion. The exemption applies only to

taxes levied by the respective unit of government granting the

exemption. The exemption does not apply, however, to taxes

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-07

levied for the payment of bonds or to taxes authorized by a vote

of the electors pursuant to s. 9(b) or s. 12, Art. VII of the State

Constitution. Any such exemption shall remain in effect for up

to 10 years with respect to any particular facility, regardless

of any change in the authority of the county or municipality to

grant such exemptions. The exemption shall not be prolonged

or extended by granting exemptions from additional taxes or

by virtue of any reorganization or sale of the business receiving

the exemption. (e.s.)

Thus, section 196.1995(5), Florida Statutes, implementing the

provisions of Article VII, section 3(c), Florida Constitution, limits the

tax exemption provided therein to improvements to real property that

are made or to tangible personal property that is added or increased on

or after the day the ordinance is adopted.

You advise that the DeSoto

County ordinance was adopted on January 25, 2011. Thus, the statute

would preclude application of the exemption to any improvements to

real property made prior to that date.

While doubtful language in taxing statutes should be resolved in favor

of the taxpayer, the reverse applies in the construction of exceptions

and exemptions from taxation.

Thus, to the extent that there is any

question, exceptions and exemptions such as the one discussed above,

should be read to favor the taxing authority.

In sum, it is my opinion that to qualify for the economic development

ad valorem tax exemption in section 196.1995(5), Florida Statutes,

improvements to real property must be made or tangible personal property

must be added or increased after the date the ordinance authorizing

the exemption is adopted.

Thus, to qualify for this exemption from ad

valorem taxation in DeSoto County, the improvements must have been

made after January 25, 2011, and section 196.1995(5), Florida Statutes,

precludes application of the exemption to any improvements to real

property made prior to that date.

Section 196.1995(5), Fla. Stat., also authorizes granting the exemption

for improvements “added or increased after approval by motion or

resolution of the local governing body, subject to ordinance adoption[.]”

You have provided the date of adoption of DeSoto County Ordinance

2011-01, but no information regarding approval by motion or resolution.

The date of adoption of the ordinance is, therefore, used herein.

See section 16.01(3), Fla. Stat., and Department of Legal Affairs

Statement Concerning Attorney General Opinions (available at: www.

myﬂ oridalegal.com / Legal Resources / AG Opinions / Frequently Asked

Questions).

See s. 196.1995(1), Fla. Stat., which provides in part that “[t]he board

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-08

of county commissioners of any county or the governing authority of

any municipality shall call a referendum within its total jurisdiction

to determine whether its respective jurisdiction may grant economic

development ad valorem tax exemptions under s. 3, Art. VII of the State

Constitution . . . .” And see s. 5, Ch. 80-347, Laws of Fla., creating s.

196.1995 and providing that “[t]his act shall take effect upon approval by

the electors of an amendment to s. 3, Art. VII of the State Constitution

authorizing the ad valorem tax exemptions provided for in this act, and

shall ﬁ rst apply to the 1981 assessment rolls.” Senate Joint Resolution 9

E, amending Art. 7, s. 3, Fla. Const., by adding subsection (c) pertaining

to economic development tax exemptions, was approved by the electors at

the special election of October 7, 1980.

And see n.1.

See Markham v. PPI, Inc., 843 So. 2d 922 (Fla. 4th DCA 2003),

rehearing denied.

Supra n.1.

AGO 15-08 – April 16, 2015

LAW ENFORCEMENT – PORTS – CONCEALED WEAPONS –

WEAPONS – FIREARMS

WHETHER TERM “CONCEALED WEAPONS” IN STATUTORY

PROHIBITION APPLIES TO FIREARMS

To: The Honorable Wayne Ivey, Brevard County Sheriff’s Ofﬁ ce

Attn: Charles Ian Nash, General Counsel

QUESTION:

Whether the phrase “concealed weapon” as used in section

311.12(3)(b), Florida Statutes, includes firearms.

SUMMARY:

The phrase “concealed weapon” as used in section 311.12(3)

(b), Florida Statutes, includes ﬁ rearms.

You have advised this ofﬁ ce that the Canaveral Port Authority and

the Sheriff have entered into an interlocal agreement providing that

seaport security services and law enforcement services will be the

responsibility of the Sheriff of Brevard County. After conversations

with your ofﬁ ce, I understand your question to be whether the phrase

“concealed weapon” as used in section 311.12(3)(b), Florida Statutes,

includes ﬁ rearms.

The question has arisen because the understanding

of this phrase by the Sheriff’s Ofﬁ ce and the State Attorney’s Ofﬁ ce

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-08

differs. The State Attorney’s Ofﬁ ce has been contacted and joins in your

request for an opinion. For the reasons set forth below, it is my opinion

that the phrase “concealed weapon” as it is used in section 311.12(3)(b),

Florida Statutes, does include ﬁ rearms.

Section 311.12, Florida Statutes, requires each seaport listed by

the Legislature to adopt and maintain a security plan speciﬁ c to that

seaport. The plan is to provide for a secure seaport infrastructure

that “promotes the safety and security of state residents and visitors

and the ﬂ ow of legitimate trade and travel.”

Each of these seaport

security plans must designate all secure and restricted areas “as

deﬁ ned by 33 C.F.R. part 105.” These areas must be clearly identiﬁ ed

with appropriate signs and markers on the premises.

All persons and

objects in secure and restricted areas are subject to search by sworn,

state-certiﬁ ed law enforcement ofﬁ cers such as those of the Brevard

County Sheriff’s Ofﬁ ce.

Section 311.12(3)(b), Florida Statutes, provides:

The seaport must provide clear notice of the prohibition against

possession of concealed weapons and other contraband material

on the premises of the seaport. Any person in a restricted area

who has in his or her possession a concealed weapon, or who

operates or has possession or control of a vehicle in or upon

which a concealed weapon is placed or stored, commits a

misdemeanor of the ﬁ rst degree, punishable as provided in s.

775.082 or s. 775.083. This paragraph does not apply to active

duty certiﬁ ed federal or state law enforcement personnel or

persons so designated by the seaport director in writing.

Section 311.12, Florida Statutes, contains no deﬁ nition of the phrase

“concealed weapons,” nor does one appear elsewhere within Chapter

311, Florida Statutes.

Further, the statute makes no reference to any

other provision in the Florida Statutes intended by the Legislature

to be used to construe section 311.12, Florida Statutes. A review of

legislative history provides no direction as to the Legislature’s intent in

using these terms.

It is a basic rule of statutory construction that in the absence of a

statutory deﬁ nition, words of common usage are to be construed in

their plain and ordinary sense and, if necessary, the plain and ordinary

meaning of a word can be ascertained by referring to a dictionary.

To “conceal” is “to hide, withdraw or remove from observation; cover

or keep from sight”

or “[t]o keep from observation, discovery, or

understanding.”

A weapon is deﬁ ned as: “any instrument or device

for use in attack or defense in combat, ﬁ ghting, or war, as a sword,

riﬂ e, or cannon”

or “[a]n instrument or device used to attack another

or to defend oneself from attack.”

Black’s Law Dictionary deﬁ nes a

“weapon” as “[a]n instrument used or designed to be used to injure or

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-08

kill someone” and a “concealed weapon” as “[a] weapon that is carried by

a person but that is not visible by ordinary observation.”

A “ﬁ rearm”

is commonly understood to be “a small arms weapon, as a riﬂ e or pistol,

from which a projectile is ﬁ red by gunpowder”

and “[a] weapon capable

of ﬁ ring a missile, esp. a pistol or riﬂ e.”

Thus, it appears that a common

sense reading of the terms would clearly include a “ﬁ rearm” within the

scope of the broader term “weapon.”

There is further evidence that the Legislature intended a ﬁ rearm to

constitute a weapon within the scope of section 311.12, Florida Statutes.

The statute itself includes several references to ﬁ rearms and ﬁ rearms

statutes. Section 311.12(1)(b), Florida Statutes, relating to security

standards provides that

[t]he provisions of s. 790.251 are not superseded, preempted, or

otherwise modiﬁ ed in any way by the provisions of this section.

Section 790.251, Florida Statutes, is the “Preservation and Protection

of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008”

and protects the right to keep and bear arms in motor vehicles by

delineating the duties of public and private employers. If ﬁ rearms are

not considered “weapons” within the scope of section 311.12, Florida

Statutes, there would be no necessity to establish the relationship of

section 790.251.

Further, section 311.12(3)(b), Florida Statutes, includes language

making it clear that “[t]his paragraph does not apply to active-duty

certiﬁ ed federal or state law enforcement personnel or persons so

designated by the seaport director in writing.” That is, the prohibition

against possession of concealed weapons on the premises of the seaport

does not apply to active duty law enforcement personnel. Common

sense dictates that the reference to weapons carried by law enforcement

personnel is intended to address ﬁ rearms.

In sum, it is my opinion that the phrase “concealed weapon” as used

in section 311.12(3)(b), Florida Statutes, includes ﬁ rearms.

As originally presented, your question is “[w]hether section 311.12(3)

(b), Florida Statutes, authorizes the Sheriff and his deputies to arrest

individuals for possession of concealed ﬁ rearms in restricted areas of the

seaport and appurtenant facilities owned and operated by the Canaveral

Port Authority where the Sheriff and his deputies are lawfully acting in

accordance with an agreement between the Sheriff and the Canaveral Port

Authority for Seaport Security Services and Law Enforcement Services.”

As this ofﬁ ce does not comment on local agreements or legislation, your

question has been reframed.

See s. 311.12(2), Fla. Stat.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-08

Section 311.12(3), Fla. Stat.

Section 311.12(3)(a)2., Fla. Stat.

Compare s. 790.001(3)(a), Fla. Stat., which deﬁ nes a “[c]oncealed

weapon” to mean “any dirk, metallic knuckles, slungshot, billie, tear

gas gun, chemical weapon or device, or other deadly weapon carried on

or about a person in such manner as to conceal the weapon from the

ordinary sight of another person.” This statute also deﬁ nes “[c]oncealed

ﬁ rearm” separately from a “[c]oncealed weapon,” but does not exclude a

ﬁ rearm from inclusion within the deﬁ nition. In fact, the deﬁ nition of a

“[f]irearm” contained in s. 790.001(6), Fla. Stat., describes a ﬁ rearm as

a “weapon.” However, for purposes of Ch. 790, Fla. Stat., the deﬁ nition

of a “[w]eapon” excludes a ﬁ rearm. This distinction appears to relate

to the Legislature’s attempt to differentiate between penalties imposed

for various ﬁ rearm and weapons crimes. See e.g., s. 790.01, Fla. Stat.

(carrying a concealed weapon is a ﬁ rst degree misdemeanor and carrying

a concealed ﬁ rearm is a third degree felony).

See Sieniarecki v. State, 756 So. 2d 68 (Fla. 2000) (in absence of a

statutory deﬁ nition, words of common usage are construed in their plain

and ordinary sense and, if necessary, the 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).

Webster’s New Universal Unabridged Dictionary (2003), p. 422.

The American Heritage Dictionary (ofﬁ ce ed. 1987), p. 144.

Supra n.7 at p. 2153

Supra n.8 at p. 771.

Black’s Law Dictionary (8th ed. 2004), p. 1624.

Webster’s New Universal Unabridged Dictionary (2003), p. 722.

The American Heritage Dictionary (ofﬁ ce ed.1987), p. 264

Provisions enacted by the Legislature must be assumed to have some

useful purpose as the Legislature is not presumed to have enacted useless

or meaningless legislation. Smith v. Piezo Technology and Professional

Administrators, 427 So. 2d 182 (Fla. 1983); Arnold v. Shumpert, 217 So.

2d 116 (Fla. 1968); Ops. Att’y Gen. Fla. 00-46 (2000) (this ofﬁ ce will not

presume that the Legislature intended to enact purposeless or useless

legislation), 98-83 (1998), and 97-78 (1997).

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-09

AGO 15-09 – August 5, 2015

COUNTIES – ALCOHOLIC BEVERAGES – LICENSING –

REGULATION OF ALCOHOLIC BEVERAGES

COUNTY’S PROHIBITION OF ALCOHOLIC BEVERAGES

LIMITED BY S. 5(A), ART. VIII, FLA. CONST.; REGULATION

LIMITED TO LOCATION, HOURS OF OPERATION, SANITARY

CONDITIONS, AND TYPE OF ENTERTAINMENT OR CONDUCT

To: Ms. Shalene Grover, Attorney for Liberty County

QUESTIONS:

1. May the county prohibit the sale of alcoholic beverages

for consumption on premises within the county, including

restaurants, bars, and all other facilities?

2. May the county require that alcohol sold at convenience

stores or any other store be transported in a brown bag after

purchase?

3. May the county limit the number of drinks which may be

served to one person?

4. Should the county be unable to prohibit the sale of

alcohol for consumption on premises, may the county restrict

restaurants that sell alcohol to land use areas designated as

commercial?

SUMMARY:

1. The county may authorize or prohibit the sale of alcoholic

beverages only through the local option provisions contained in

section 5(a), Article VIII, Florida Constitution.

2 & 3. A county’s authority to regulate the sale of alcohol

includes designating the location of liquor establishments,

the hours of operation, and the sanitary conditions of such

establishments, as well as restricting the type of entertainment

or conduct within establishments licensed to sell alcohol.

While a county may enact an ordinance to promote and

protect the general health, safety, and welfare of the public

which would affect an establishment licensed to sell alcohol,

such an ordinance must treat a licensee selling alcohol in a

nondiscriminatory manner. It would appear, therefore, that a

county may not require that alcohol be transported in a brown

bag after purchase, nor may a county limit the number of drinks

which may be served to one person.

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15-09

4. A county’s authority to designate the location of liquor

establishments through appropriate zoning regulations would

appear to encompass the authority to restrict alcohol sales

to restaurants located on land which is zoned for commercial

purposes.

QUESTION 1.

Section 5(a), Article VIII, Florida Constitution, provides the exclusive

means for a county to authorize or prohibit the sale of alcoholic beverages:

Local option on the legality or prohibition of the sale of

intoxicating liquors, wines or beers shall be preserved to each

county. The status of a county with respect thereto shall be

changed only by vote of the electors in a special election called

upon the petition of twenty-ﬁ ve per cent of the electors of the

county, and not sooner than two years after an earlier election

on the same question. Where legal, the sale of intoxicating

liquors, wines and beers shall be regulated by law. (e.s.)

The plain language of the constitutional provision limits a county’s

authority to authorize or prohibit the sale of alcoholic beverages to the

procedure prescribed therein and further provides that the regulation of

the sale of alcohol shall be regulated by law.

QUESTIONS 2. & 3.

Florida's Beverage Law is contained in Chapters 561 through 568 of

the Florida Statutes. As provided in section 562.45(2), Florida Statutes,

(a) Nothing contained in the Beverage Law shall be construed to

affect or impair the power or right of any county or incorporated

municipality of the state to enact ordinances regulating

the hours of business and location of place of business, and

prescribing sanitary regulations therefor, of any licensee under

the Beverage Law within the county or corporate limits of such

municipality. . . .

(b) Nothing in the Beverage Law shall be construed to affect

or impair the power or right of any county or incorporated

municipality of the state to enact ordinances regulating the type

of entertainment and conduct permitted in any establishment

licensed under the Beverage Law to sell alcoholic beverages for

consumption on the premises, or any bottle club licensed under

s. 561.14, which is located within such county or municipality.

Section 562.45(2)(c), Florida Statutes, however, states:

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-09

A county or municipality may not enact any ordinance that

regulates or prohibits those activities or business transactions

of a licensee regulated by the Division of Alcoholic Beverages

and Tobacco under the Beverage Law. Except as otherwise

provided in the Beverage Law, a local government, when

enacting ordinances designed to promote and protect the

general health, safety, and welfare of the public, shall treat a

licensee in a nondiscriminatory manner and in a manner that

is consistent with the manner of treatment of any other lawful

business transacted in this state. Nothing in this section shall

be construed to affect or impair the enactment or enforcement

by a county or municipality of any zoning, land development or

comprehensive plan regulation or other ordinance authorized

under ss. 1, 2, and 5, Art. VIII of the State Constitution. (e.s.)

Thus, the Florida Legislature prohibits local ordinances which

regulate or prohibit activities or business transactions of an alcoholic

beverage licensee, except in the speciﬁ c areas allowing municipalities

and counties to regulate the location of liquor establishments, the

hours the establishments may stay open, and the sanitary conditions of

these establishments, as well as the type of entertainment and conduct

permitted therein. When a local government enacts an ordinance

to promote and protect the general health, safety, and welfare of

the public, such ordinance may not be isolated to alcoholic beverage

establishments and must treat a licensee in the same manner as any

other lawful business transacted within the state. When the Legislature

has prescribed the manner in which something may be done, it operates

as a prohibition against its being done in any other way.

A county’s attempt to require that alcoholic beverages purchased

from a licensee be placed in a brown paper bag for transport would most

likely have to be supported by a determination by the county commission

that it promotes the health, safety and welfare of the general public.

However, such an ordinance could not be limited to the sale of alcoholic

beverages and would have to affect all licensed businesses within the

county in the same manner.

An attempt to limit the number of drinks which may be served to

a customer by a licensed vendor of alcoholic beverages would appear

to affect the ability of a vendor to sell alcoholic beverages and, as

discussed above, would be less likely to be upheld, in that such an

ordinance would discriminate against a licensee. I would note, that the

"Florida Responsible Vendor Act"

sets forth the Legislature’s intent to

"[e]ncourage alcoholic beverage vendors to be prudent in their serving

practices" and "to implement responsible policies for serving and

promoting alcoholic beverages and, by so doing, prevent the over-service

of alcoholic beverages to customers and prevent the over-consumption

of alcoholic beverages by customers while on the licensed premises of

vendors."

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-10

QUESTION 4.

Clearly, the beverage statutes recognize the county’s authority to use

zoning to designate where a commercial establishment serving alcohol

may be located.

Thus it would appear that the county may require

that a restaurant serving alcohol be located on land which is zoned for

commercial activity.

Accordingly, it would appear that a county may regulate the sale of

alcohol by designating the location of liquor establishments, the hours

of operation, and the sanitary conditions of such establishments, as

well as the type of entertainment and conduct permitted in a licensed

establishment, but may not enact an ordinance which regulates the

business transactions of a licensee. Moreover, while a county may

enact an ordinance to promote and protect the general health, safety,

and welfare of the public, such an ordinance must treat an alcoholic

beverage licensee in the same manner as any other business and may

not discriminate against the licensee.

The phrase "by law" contemplates an enactment of the Legislature,

not a county ordinance. 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, 1148 (Fla. 4th DCA 1982).

See Alsop v. Pierce, 19 So. 2d 799, 805 (Fla. 1944) (where Legislature

prescribes the mode, that mode must be observed).

Section 561.701 – 706, Fla. Stat.

Section 561.702(4) and (5), Fla. Stat.

See Hardage v. City of Jacksonville Beach, 399 So. 2d 1077 (Fla. 1st

DCA 1981), review denied, 411 So. 2d 382 (Fla. 1981) (under power to

regulate location of liquor establishments, municipalities may permit one

or more types of sale in designated area without being required to permit

all other modes of sale).

AGO 15-10 – August 5, 2015

PUBLIC RECORDS – SEALED RECORDS – JOB

APPLICATIONS – PERSONNEL RECORDS

WHETHER SEALED JOB APPLICATIONS WHICH ARE

UNOPENED ARE SUBJECT TO PUBLIC INSPECTION AND

COPYING AS PUBLIC RECORDS

To: Mr. Hal A. Airth, Attorney for the Suwannee Valley Transit

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-10

QUESTION:

Are sealed job applications which were received by the

Suwannee Valley Transit Authority but rejected before the

applications were opened public records subject to inspection

and copying under section 119.07, Florida Statutes?

SUMMARY:

Job applications, like other personnel records, are public

records made or received by the public agency in the usual

course of business

and are subject to inspection and copying

under section 119.07, Florida Statutes, once they are received.

An agency may not “seal” job applications or request that they

be submitted as “sealed” records to foreclose public access.

According to your letter, the Suwannee Valley Transit Authority

was created in the 1970s by interlocal agreement between Columbia,

Hamilton, and Suwannee Counties. The mission of the agency is set

forth in the authority’s Vision Statement:

Suwannee Valley Transit Authority (SVTA) will continue to

improve the safe, and reliable transportation services provided

to those with disabilities; to those who are ‘transportation

disadvantaged’; and those who are eligible to consider SVTA as

their transportation of last resort. SVTA will also develop, plan

and implement service that will allow the general public to use

SVTA transportation as a preferred choice of transportation

particularly in and around the communities Jasper, Lake City

and Live Oak.

You acknowledge that the SVTA is subject to Florida’s Public Records

Law. From my research it appears that the SVTA has recently been

involved in a search for an administrator for that agency but, when the

position was advertised, only two applications for that position were

received. The board rejected both applications and will readvertise in

order to attract more applicants. Apparently, the board accepts sealed

job applications, but did not open either of the two that were received

prior to making the decision to readvertise. A public records request has

been received for the two sealed applications and you have requested

our assistance in determining whether these records are subject to

inspection and copying.

For purposes of Florida’s Public Records Law, the term “public

records” is deﬁ ned in section 119.011(12), Florida Statutes:

‘Public records’ means all documents, papers, letters, maps,

books, tapes, photographs, ﬁ lms, sound recordings, data

processing software, or other material, regardless of the

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-10

physical form, characteristics, or means of transmission, made

or received pursuant to law or ordinance or in connection with

the transaction of ofﬁ cial business by any agency.

The Florida Supreme Court has determined that the deﬁ nition of

“public records” encompasses all material received by an agency in

connection with ofﬁ cial business that is used to perpetuate, communicate,

or formalize knowledge.

(e.s.) All such material, regardless of whether

it is in ﬁ nal form, is open for public inspection and copying unless the

Legislature has exempted it from disclosure.

The general rule applicable to other public records applies equally

to personnel records. That is, unless the Legislature has expressly

exempted the particular personnel records from disclosure or authorized

the agency to adopt rules limiting access to such records, personnel

records are subject to public inspection and copying under the Public

Records Law, section 119.07(1), Florida Statutes.

Based on this ofﬁ ce’s conclusion that personnel records are public

records, this ofﬁ ce has determined that an agency is not authorized

to “seal” disciplinary notices and thereby remove those notices from

disclosure under the Public Records Act.

Further, an agency may not,

in the absence of a statutory exemption, agree to remove counseling

slips and written reprimands from an employee’s personnel ﬁ le and

maintain such documents in a separate disciplinary ﬁ le for the purpose

of removing such records from public access.

Thus, this ofﬁ ce and the

courts have advised that applications for employment, references, and

resumes are subject to disclosure after redaction of statutorily exempt

information such as social security numbers.

Section 119.071, Florida Statutes, contains the general exemptions

from inspection or copying of public records. Among the exemptions

contained therein is section 119.071(1)(b)2., Florida Statutes, which

provides an exemption from public inspection and copying for “sealed

bids, proposals, or replies received by an agency pursuant to a

competitive solicitation.” Such material is exempt until such time as

the agency provides notice of an intended decision or until 30 days after

opening “the bids, proposals, or ﬁ nal replies,” whichever is earlier. The

statute continues:

If an agency rejects all bids, proposals, or replies submitted

in response to a competitive solicitation and the agency

concurrently provides notice of its intent to reissue the

competitive solicitation, the rejected bids, proposals, or replies

remain exempt from s. 119.07(1) and s. 24(a), Art. I of the State

Constitution until such time as the agency provides notice

of an intended decision concerning the reissued competitive

solicitation or until the agency withdraws the reissued

competitive solicitation. A bid, proposal, or reply is not exempt

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-10

for longer than 12 months after the initial agency notice

rejecting all bids, proposals, or replies.

Thus, the Legislature has made clear provision for sealed bids,

proposals, or replies related to competitive solicitation and their ultimate

release even if the agency rejects the sealed bids. No such language

appears in the statutes with regard to employment applications.

The Public Records Act is to be liberally construed in favor of open

government, and exemptions from disclosure are to be narrowly

construed so they are limited to their stated purpose.

In the absence of

any speciﬁ c legislative provision for the conﬁ dentiality of employment

applications, this ofﬁ ce will not read such an exception into the statutes.

In sum, job applications, like other personnel records, are public

records made or received by the public agency in the usual course of

business

and are subject to inspection and copying under section

119.07, Florida Statutes, once they are received. Further, an agency

may not “seal” job applications or request that they be submitted as

“sealed” records to foreclose public access.

See Op. Att’y Gen. Fla. 84-37 (1984), concluding that sealed bids, even

if unopened, which are in the custody and control of the county have been

“received” by the county in connection with the transaction of its ofﬁ cial

business and are public records.

http://www.suwanneesolutions.com/transit/index.php?option=com_co

ntent&view=article&id=38&Itemid=179.

See s. 119.011(2), Fla. Stat., deﬁ ning the term “[a]gency” to mean

“any state, county, district, authority, or municipal ofﬁ cer, department,

division, board, bureau, commission, or other separate unit of government

created or established by law including, for the purposes of this chapter,

the Commission on Ethics, the Public Service Commission, and the

Ofﬁ ce 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).

See Wait v. Florida Power & Light Company, 372 So. 2d 420 (Fla.

1979).

See Michel v. Douglas, 464 So. 2d 545 (Fla. 1985).

Op. Att’y Gen. Fla. 94-75 (1994).

Op. Att’y Gen. Fla. 94-75 (1994). And see Op. Att’y Gen. Fla. 11-19

(2011) (superintendent’s failure to comply with a statutory requirement

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-11

to discuss a performance evaluation with the employee before ﬁ ling it in

the employee’s personnel ﬁ le, does not change the public records status of

the evaluation; the evaluation is a public record and may not be removed

from public view or destroyed).

See, e.g., Shevin v. Byron, Harless, Schaffer, Reid and Associates, Inc.,

379 So. 2d 633 (Fla. 1980) and Op. Att’y Gen. Fla. 77-48 (1977). And

see Douglas v. Michel, 410 So. 2d 936 (Fla. 5th DCA 1982), questions

answered and approved, 464 So. 2d 545 (Fla. 1985) (communications

from third parties included in employment ﬁ le are subject to disclosure);

Op. Att’y Gen. Fla. 13-14 (2013) (written employment contract is a public

record).

But see s. 435.09, Fla. Stat., that provides conﬁ dentiality of personnel

background check information.

See National Collegiate Athletic Association v. Associated Press, 18

So. 3d 1201, 1206 (Fla. 1st DCA 2009), review denied, 37 So. 3d 848

(Fla. 2010); Lightbourne v. McCollum, 969 So. 2d 326 (2007), rehearing

denied, certiorari denied, 128 S.Ct. 2485, 553 U.S. 1059, 171 L.Ed.2d 777;

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 (Fla. 1988); Tribune Company v. Public Records,

493 So. 2d 480, 483 (Fla. 2d DCA 1986), review denied sub nom., Gillum

v. Tribune Company, 503 So. 2d 327 (Fla. 1987). See also Southern Bell

Telephone and Telegraph Company v. Beard, 597 So. 2d 873, 876 (Fla. 1st

DCA 1992) (Public Service Commission’s determination that statutory

exemption for proprietary conﬁ dential business information should be

narrowly construed and did not apply to company’s internal self analysis

was “consistent with the liberal construction afforded the Public Records

Act in favor of open government”).

See Op. Att’y Gen. Fla. 84-37 (1984), concluding that sealed bids, even

if unopened, which are in the custody and control of the county have been

“received” by the county in connection with the transaction of its ofﬁ cial

business and are public records. I would note that Op. Att’y Gen. Fla. 84-

37 (1984) was issued prior to the adoption of the language in s. 119.071(1)

(b)2., Fla. Stat., cited above. See Ch. 85-45, Laws of Fla., providing that

“[s]ealed bids or proposals received by an agency pursuant to invitations to

bid or requests for proposals are exempt from the provisions of subsection

(1) until such time as the bids or proposals are opened.”

AGO 15-11 – August 11, 2015

WATER AND SEWER DISTRICTS – COUNTIES – SPECIAL

ASSESSMENTS – LIENS

AUTHORITY OF WATER DISTRICT CREATED BY INTERLOCAL

AGREEMENT TO USE LIEN PROVISIONS IN CHAPTER 153,

FLORIDA STATUTES

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-11

To: Mr. Terry J. Harmon, General Counsel, Big Bend Water Authority

QUESTION:

May the Big Bend Water Authority utilize the lien provisions in

section 153.67, Florida Statutes, and, if so, may a lien be imposed

for charges to a customer for damages to the authority’s water

and sewer property?

SUMMARY:

The lien provision in section 153.67, Florida Statutes, may

only be used by water and sewer districts created pursuant to

Part II, Chapter 153, Florida Statutes, and, therefore, is not

available to the Big Bend Water Authority which was created

by an interlocal agreement under Part I, Chapter 163, Florida

Statutes.

You state that the Big Bend Water Authority (authority) was created

by an interlocal agreement between Taylor County and Dixie County

pursuant to Part I, Chapter 163, Florida Statutes. The purpose of the

district is to provide water and sewer services to customers located

in unincorporated areas of both counties. The authority’s governing

board is contemplating the adoption of policies to address unpaid fees,

rates, and charges for water and sewer services, including charges for

damages to authority water and sewer property. The board questions

whether the authority has the power to attach a lien for unpaid fees or

for damages to authority property as provided in section 153.67, Florida

Statutes.

Part II, Chapter 153, Florida Statutes, is the “County Water and

Sewer District Law.”

Section 153.53, Florida Statutes, sets forth the

procedure for a board of county commissioners to establish one or more

water and sewer districts in unincorporated contiguous areas of the

county. As an alternative means to create a district, a petition signed

by persons owning not less that 10 percent of the property within

the boundaries of a proposed district may be ﬁ led with the property

appraiser, requesting the county commission to call and provide for

a referendum election to determine whether such district should be

created and call for the election of a governing board.

Pursuant to section 153.62(4), Florida Statutes, districts created

pursuant to the act are, among other things, authorized:

To levy and assess ad valorem taxes without limitation of rate

or amount on all taxable property within said district for the

purpose of paying principal of and interest on any general

obligation bonds which may be issued for the purposes of this

law, not in excess of the total amount of such general obligation

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-11

bonds provided for in subsection (3).

Moreover, a Chapter 153 district may

ﬁ x and collect rates, fees and other charges to persons or

property or both for the use of the facilities and services

provided by any water system or sewer system or both and to

ﬁ x and collect charges for making connections with any such

water system or sewer system and to provide for reasonable

penalties on any users or property for any such rates, fees or

charges that are delinquent.

Section 153.67, Florida Statutes, recognizes:

In the event that the fees, rates or charges for the services and

facilities of any water or sewer system shall not be paid as and

when due, any unpaid balance thereof and all interest accruing

thereon shall be a lien on any parcel or property affected thereby.

Such liens shall be superior and paramount to the interest on

such parcel or property of any owner, lessee, tenant, mortgagee

or other person except the lien of county taxes and shall be on

a parity with the lien of any such county taxes. In the event

that any such service charge shall not be paid as and when

due and shall be in default for thirty days or more the unpaid

balance thereof and all interest accrued thereon, together with

attorneys fees and costs, may be recovered by the district in

a civil action, and any such lien and accrued interest may be

foreclosed or otherwise enforced by the district by action or suit

in equity as for the foreclosure of a mortgage on real property.

The “Water and Sewer District Law” further states that a district

“may provide for the construction or reconstruction of assessable

improvements as deﬁ ned in s. 153.52, and for the levying of special

assessments upon beneﬁ ted property for the payment thereof, under

the provisions of this section.”

(e.s.) Such assessments are collected

by the tax collector of the county in which the district is located and

“shall constitute a lien upon the property so assessed from the date of

conﬁ rmation of the resolution ordering the improvement, of the same

nature and to the same extent as the lien for general county taxes

falling due in the same year or years in which such assessments or

installments thereof fall due . . . .”

Section 153.62(10), Florida Statutes, provides that a district created

under Chapter 153 may “join with any other district or districts, cities,

towns, counties or other political subdivisions, public agencies or

authorities in the exercise of common powers.”

As noted above, however, the Big Bend Water Authority was created

by interlocal agreement under Chapter 163, Florida Statutes. While the

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-11

Water and Sewer District Law recognizes that a district created under

its provisions may enter into an interlocal agreement with an authority,

they may do so only in the exercise of a common power. There is nothing

contained in the statutes which indicates that an authority created by

interlocal agreement under Chapter 163 which enters into an interlocal

agreement with a district created under the Water and Sewer District

Law would be imbued with the same powers as a Chapter 153 district

as a result of the contractual relationship. Moreover, while water

and sewer districts created under Chapter 153, Florida Statutes, are

authorized to levy and assess ad valorem taxes, section 163.01(7)(c),

Florida Statutes, states:

No separate legal or administrative entity created by an

interlocal agreement shall possess the power or authority to

levy any type of tax within the boundaries of any governmental

unit participating in the interlocal agreement, to issue any type

of bond in its own name, or in any way to obligate ﬁ nancially

a governmental unit participating in the interlocal agreement.

. . .

As an administrative agency created under the terms of Chapter

163, Florida Statutes, the Big Bend Water Authority may exercise

only those powers which are expressly granted under its empowering

legislation or by implication those necessary to carry out its express

power.8 There is no apparent or implied power contained in Chapter

163, Florida Statutes, for the authority to attach a lien to property

which is delinquent in its payments or for damage to authority property.

Moreover, administrative agencies are constrained not to expand their

authority beyond that provided in the statutory grant.

Accordingly, it is my opinion that the Big Bend Water Authority may

not utilize the lien provisions in section 153.67, Florida Statutes.

There is no assertion or indication that the Big Bend Water Authority

was created pursuant to the provisions in Part II, Ch. 153, Fla. Stat.,

governing county water and sewer districts.

Section 153.50, Fla. Stat.

Section 153.53(2)(a) and (c), Fla. Stat.

Section 153.62(3), Fla. Stat., provides that “the total amount of all

general obligation indebtedness of the district issued pursuant to this law

shall not exceed 15 percent of the assessed value of the taxable property

in the district at the time of the creation of such district, to be ascertained

by the assessed valuations for county taxes in effect at the time of the

creation of such district.”

Section 153.62(6), Fla. Stat.

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15-12

Section 153.73(1), Fla. Stat.

Section 153.73(11)(c), 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).

See State, Department of Environmental Regulation v. Falls Chase

Special Taxing District, 424 So. 2d 787 (Fla. 1st DCA 1982), pet. for rev.

den., 436 So. 2d 98 (Fla. 1983); Seitz v. Duval County School Board, 366

So. 2d 119 (Fla. 1st DCA 1979); Department of Transportation v. James,

403 So. 2d 1066 (Fla. 4th DCA 1981).

AGO 15-12 – September 10, 2015

COUNTIES – CHARTERS – SUPERVISOR OF ELECTIONS –

PETITIONS

DATE TO BE USED TO DETERMINE WHETHER PETITION

REQUESTING APPOINTMENT OF COUNTY CHARTER

COMMISSION HAS BEEN SIGNED BY REQUISITE NUMBER OF

VOTERS

To: The Honorable Brian E. Corley, Pasco County Supervisor of

Elections

QUESTION:

What date must a Supervisor of Elections use to calculate

whether the required number of qualified voters have signed

a petition requesting the establishment of a county charter

commission pursuant to section 125.61, Florida Statutes?

SUMMARY:

A Supervisor of Elections should use the date upon which

the petition requesting the establishment of a county charter

commission is submitted to the county commission to calculate

the number of qualiﬁ ed voters required to meet the statutory

requirement of “15 percent of the qualiﬁ ed electors of the

county” mandated by section 125.61, Florida Statutes.

According to information obtained by this ofﬁ ce, a citizens group in

Pasco County has announced that it plans to seek petition signatures

to require appointment of a county charter commission. The statute

requires a determination of whether the petition has been “signed by

at least 15 percent of the qualiﬁ ed electors of the county[.]” As the

Supervisor of Elections, you are unsure when this calculation should be

made as the statute is silent in this regard.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-12

Section 125.61, Florida Statutes, was enacted by Chapter 69-45,

Laws of Florida, as a part of the procedure enabling a county to adopt

a home rule charter. The proceedings may be initiated by resolution of

the board of county commissioners or by petition signed by at least 15

percent of the qualiﬁ ed electors of the county. Within 30 days of the

adoption of the resolution or the ﬁ ling of the petition, the members of

the county charter commission “shall be appointed[.]” Speciﬁ cally, the

statute provides:

125.61 Charter commission.—

(1) Following the adoption of a resolution by the board of

county commissioners or upon the submission of a petition

to the county commission signed by at least 15 percent of

the qualiﬁ ed electors of the county requesting that a charter

commission be established, a charter commission shall be

appointed pursuant to subsection (2) within 30 days of the

adoption of said resolution or of the ﬁ ling of said petition.

(2) The charter commission shall be composed of an odd

number of not less than 11 or more than 15 members. The

members of the commission shall be appointed by the board

of county commissioners of said county or, if so directed

in the initiative petition, by the legislative delegation. No

member of the Legislature or board of county commissioners

shall be a member of the charter commission. Vacancies shall

be ﬁ lled within 30 days in the same manner as the original

appointments.

Unlike a number of other statutes requiring a calculation of the

requisite number of signatures on a petition, section 125.61, Florida

Statutes, does not establish a benchmark date for the Supervisor to

make this calculation. In section 100.361, Florida Statutes, dealing with

municipal recall elections, a recall petition must be signed by “at least

50 electors or by 10 percent of the total number of registered electors

of the municipality or district as of the preceding municipal election,

whichever is greater.”

(e.s.) Similarly, section 166.031(1), Florida

Statutes, dealing with municipal charter amendments, provides:

The governing body of a municipality may, by ordinance, or the

electors of a municipality may, by petition signed by 10 percent

of the registered electors as of the last preceding municipal

general election, submit to the electors of said municipality a

proposed amendment to its charter, which amendment may be

to any part or to all of said charter except that part describing

the boundaries of such municipality. The governing body of the

municipality shall place the proposed amendment contained in

the ordinance or petition to a vote of the electors at the next

general election held within the municipality or at a special

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-12

election called for such purpose.

(e.s.)

It is a general rule of statutory construction that courts, in construing

a statute, cannot invoke a limitation or add words to a statute not placed

there by the Legislature, nor is this ofﬁ ce authorized to do so.

Thus, this

ofﬁ ce cannot read into section 125.61, Florida Statutes, a requirement

that these calculations be made “as of the last preceding . . . general

election” or other such qualifying event. Further, the fact that the

qualifying language exists in other statutes, particularly the municipal

charter process described in section 166.031, Florida Statutes, supra,

suggests that it was not intended to apply to the process described in

section 125.61, Florida Statutes.

Other language in section 125.61, Florida Statutes, suggests that the

date the petition is presented to the county commission is a signiﬁ cant

date for this process. The statute provides that the charter commission

must be appointed “within 30 days . . . of the ﬁ ling of said petition.”

It would appear reasonable to conclude that the date upon which the

petition is presented to the county commission is the benchmark date

for calculation of the required number of signatures on the petition.

Therefore, in the absence of any legislative or judicial mandate to

the contrary, it is reasonable to conclude that pursuant to section

125.61, Florida Statutes, a Supervisor of Elections should use the date

a petition for establishment of a charter commission is submitted to the

county commission to determine the number of signatures representing

“at least 15 percent of the qualiﬁ ed electors of the county.”

Section 100.361(2)(b)1., Fla. Stat. And see s. 100.361(2)(b)2. - 6., Fla.

Stat., containing identical language as to the benchmark date.

However, like s. 125.61, Fla. Stat., several statutes contain no

benchmark date for calculation of the requisite number of signatures

on a petition. See s. 171.051(2), Fla. Stat., providing the procedure

for municipal contraction by a petition of 15% of qualiﬁ ed voters in an

area; and s. 367.072(2)(b), Fla. Stat., relating to a utility’s certiﬁ cate of

authorization to provide water service and the requirements for petitions

to revoke such certiﬁ cates which must be signed by 65% of the customers

in the service area covered by the certiﬁ cate of authorization.

See In re Order on Prosecution of Criminal Appeals by Tenth Judicial

Circuit Public Defender, 561 So. 2d 1130 (Fla. 1990); Chaffee v. Miami

Transfer Company, Inc., 288 So. 2d 209 (Fla. 1974); and see Ops. Att’y

Gen. Fla. 82-80 (1982) (Attorney General, like a court, is not free to add

words to a statute to support a conclusion that the plain wording of the

statute does not supply; general rule of statutory construction is that any

doubts as to legislative intent should be resolved against the power of the

court to supply missing words); 98-82 (1998) (Attorney General will not

read words of limitation into statute); 94-09 (1994); 87-43 (1987); 86-32

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-13

(1986); 82-20 (1982).

AGO 15-13 – September 17, 2015

SUNSHINE LAW – LITIGATION – MAYOR

APPLICABILITY TO MAYOR OF EXCEPTION FOR MEETINGS

BETWEEN CITY COUNCIL AND ITS ATTORNEY TO DISCUSS

SETTLEMENT AND LITIGATION EXPENDITURES

To: Ms. Pam E. Booker, City Attorney, City of Port St. Lucie

QUESTION:

1. Pursuant to section 286.011(8), Florida Statutes, is the

mayor, who is a named defendant in two lawsuits filed against

the City and various City officials, prohibited from attending

“shade meetings” with counsel to discuss the litigation?

2. If the mayor is statutorily permitted to attend shade

meetings, would provisions within Florida’s Ethics Code, Part III,

Chapter 112, Florida Statutes, prohibit him from participating

in discussions at such meetings, and from voting on decisions

relating to the litigation during Sunshine meetings?

SUMMARY:

1. Section 286.011(8), Florida Statutes, does not prohibit

the mayor, who is a voting member of the city council, from

attending meetings between the city council and its attorney

to discuss settlement negotiations and/or strategy related to

litigation expenditures in connection with the pending lawsuits

in which the council is a party.

2. This ofﬁ ce will not comment on your questions pertaining

to prohibitions that may exist in the Ethics Code. Pursuant to

section 112.322(3), Florida Statutes, the Ethics Commission is

responsible for issuing advisory opinions on questions regarding

application of the Ethics Code.

As you acknowledge, meetings between members of the city council

to conduct city business are public meetings under section 286.011(1),

Florida Statutes, which requires governmental entities, including

municipalities, to conduct their business at open meetings “in the

sunshine.”

Subsection (1) provides:

All meetings of any board or commission of any state agency or

authority or of any agency or authority of any county, municipal

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-13

corporation, or political subdivision, except as otherwise

provided in the Constitution, including meetings with or

attended by any person elected to such board or commission,

but who has not yet taken ofﬁ ce, at which ofﬁ cial 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.

Meetings between members of the city council and the council’s

attorney to discuss pending litigation in which the city council is a

party are also public meetings subject to section 286.011(1), Florida

Statutes.

The Legislature has created a narrow exception in subsection

(8), however, to allow meetings “in the shade” between the same

governmental entities enumerated in subsection (1), along with chief

administrative or executive ofﬁ cers, and their attorney for the purpose

of discussing certain limited issues related to pending litigation:

(8) Notwithstanding the provisions of subsection (1), any board

or commission of any state agency or authority or any agency

or authority of any county, municipal corporation, or political

subdivision, and the chief administrative or executive ofﬁ cer of

the governmental entity, may meet in private with the entity’s

attorney to discuss pending litigation to which the entity is

presently a party before a court or administrative agency,

provided that the following conditions are met:

* * *

(b) The subject matter of the meeting shall be conﬁ ned to

settlement negotiations or strategy sessions related to litigation

expenditures.

This exception gives an attorney who is representing the governmental

entity in a lawsuit or administrative action the opportunity to obtain

information and direction regarding “two narrowly prescribed areas”:

settlement negotiations and strategy sessions regarding litigation

expenditures.

Final action to approve a settlement or litigation

expenditure must still be voted upon in a public meeting.

You report that two lawsuits have been ﬁ led in St. Lucie County

Circuit Court, each naming as defendants, among others, the City of

Port St. Lucie and the then-City Manager, who is now the mayor, in

both his ofﬁ cial and individual capacities. Your concern is whether the

mayor may attend shade meetings under section 286.011(8), Florida

Statutes, which applies to “any board or commission of any state

agency or authority or any agency or authority of any county, municipal

corporation, or political subdivision[.]” (e.s.) The Florida Supreme

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-13

Court has characterized city councils as municipal agencies under

section 286.011, Florida Statutes.

The Charter of the City of Port

St. Lucie, Florida,

provides in Article III, section 3.01: “There shall

be a city council with all legislative powers of the city vested therein

consisting of one member residing in each of the council districts, and a

mayor[.]” Section 3.05 provides, in part: “The mayor shall be a voting

member of the city council[.]”

This ofﬁ ce has observed that when the

mayor is a member of the city council, the Sunshine Law applies to

discussions between the mayor and other members of the council.

Because the mayor of the City of Port St. Lucie is a voting member

of the city council, which is a party in the ongoing litigation, he is not

precluded from attending shade meetings with the council regarding

the suits under subsection (8).

The fact that the plaintiffs in these lawsuits have also sued the mayor

in his individual capacity, alleging “willful and wanton” conduct toward

the plaintiffs, does not take him outside the scope of section 286.011(8),

Florida Statutes. Personal liability of a public ofﬁ cial is not determined

until a case has been ﬁ nally terminated on the merits.

By its terms,

section 286.011(8) allows a government ofﬁ cial who is “presently a

party” to “pending litigation” to discuss settlement and expenditures

during the pendency of the action. This ofﬁ ce has previously construed

“pending” in subsection (8) as referring to a lawsuit that has been ﬁ led

and is ongoing and not yet completed.

Hence, the possibility that the

mayor will be found individually liable after the merits of the case are

decided does not preclude him from attending shade meetings while the

case is active pursuant to section 286.011(8), Florida Statutes.

In conclusion, it is my opinion that section 286.011(8), Florida

Statutes, does not prohibit the mayor from attending meetings between

the city council and its attorney to discuss settlement negotiations

and/or strategy regarding litigation expenditures in connection with

the pending lawsuits in which the council is a party. I am unable to

comment on your questions regarding possible prohibitions within

the Ethics Code as to the mayor’s participation in meetings about the

litigation. These questions may instead be directed to the Florida

Commission on Ethics.

See Op. Att’y Gen. Fla. 89-18 (1989); Op. Att’y Gen. Fla. 87-17 (1987).

See City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971).

See Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985).

See Chmielewski v. City of St. Pete Beach, 161 So. 3d 521, 523 (Fla. 2d

DCA 2014).

See Op. Att’y Gen. Fla. 04-35 (2004).

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-14

See Zorc v. City of Vero Beach, 722 So. 2d 891, 901 (Fla. 4th DCA 1998);

Op. Att’y Gen. Fla. 08-17 (2008).

City of Miami Beach v. Berns, 245 So. 2d 38, 40 (Fla. 1971).

https://www.municode.com/library/fl/port_st._lucie/codes/code_of_

ordinances?nodeId=CHPOSTLUFL.

Id.

See Op. Att’y Gen. Fla. 90-26 (1990) (concluding that a mayor who was

not a member of the city council and had no voting power on the council

was not subject to the Government-in-the-Sunshine Law). Accord Ops.

Att’y Gen. Fla. 85-36 (1985), 75-210 (1975).

In contrast, a governmental entity in Op. Att’y Gen. Fla. 09-52 (2009) –

the school superintendent – was not a party to the pending administrative

action and thus could not attend a shade meeting with the school board,

which was a party.

See Nuzum v. Valdes, 407 So. 2d 277, 279 (Fla. 3d DCA 1981).

See Op. Att’y Gen. Fla. 06-03 (2006).

AGO 15-14 – September 29, 2015

TOURIST DEVELOPMENT TAX – COUNTIES – NATURE

CENTERS

USE OF TOURIST DEVELOPMENT TAX FOR BOAT RAMP AND

OBSERVATION PLATFORM IN A NATURE CENTER

To: Ms. Michelle Blankenship Jordan, County Attorney for Jackson

County

QUESTION:

May tourist development tax revenues be used to construct a

boat ramp and an elevated platform on the Chipola River, with

the elevated platform used as an observation area for viewing

birds and the natural landscape?

SUMMARY:

Section 125.0104(5)(b), Florida Statutes, authorizes a county

with a population of less than 750,000 to expend tourist

development tax revenues for the construction of a nature center

which may contain a boat ramp and an elevated platform for

observation of birds and the landscape, when the county makes

the appropriate legislative determination that such project

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-14

relates to tourism and primarily promotes such a purpose.

You state that Jackson County has proposed the use of tourist

development tax revenues to fund the construction of a ramp for

launching boats and an elevated platform for nature observation on

the Chipola River as part of a larger “Blueway,” i.e., a scenic waterway

providing a water path or trail with launching points, camping and

picnic locations, and points of interest for paddlers. You indicate that

“Blueways” are typically developed to encourage recreation, education,

and community development. The county contends that such a facility

would constitute the construction, extension, enlargement, remodeling,

improvement, or promotion of a “nature center” within the scope of

section 125.0104(5)(b), Florida Statutes.

Section 125.0104, Florida Statutes, known as the “Local Option

Tourist Development Act,”

authorizes a county to impose a tax on

short-term rentals of living quarters or accommodations within the

county unless such activities are exempt pursuant to Chapter 212,

Florida Statutes.

The purpose and intent of section 125.0104, Florida

Statutes, 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.”

The Local Option Tourist Development Act requires that construction

of publicly owned facilities ﬁ nanced by proceeds from the tourist

development tax be primarily related to the advancement and promotion

of tourism. It is the governing body of the county that must make the

factual determination of whether a particular facility or project is related

to tourism and primarily promotes such a purpose. This determination

must follow appropriate legislative ﬁ ndings and due consideration of

the speciﬁ c needs and conditions of the particular locality.

Any such

determination must show a distinct and direct relationship between

expenditure of tourist development tax revenues and the promotion of

tourism.

Section 125.0104(5), Florida Statutes, provides the authorized

uses of tourist development tax revenues:

(5) AUTHORIZED USES OF REVENUE.—

(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:

a. Publicly owned and operated convention centers, sports

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-14

stadiums, sports arenas, coliseums, or auditoriums within the

boundaries of the county or subcounty special taxing district in

which the tax is levied; or

b. Aquariums or museums that are publicly owned and

operated or owned and operated by not-for-proﬁ t organizations

and open to the public, within the boundaries of the county or

subcounty special taxing district in which the tax is levied;

2. To promote zoological parks that are publicly owned and

operated or owned and operated by not-for-proﬁ t organizations

and open to the public;

3. To promote and advertise tourism in this state and

nationally and internationally; however, if tax revenues are

expended for an activity, service, venue, or event, the activity,

service, venue, or event must have as one of its main purposes

the attraction of tourists as evidenced by the promotion of the

activity, service, venue, or event to tourists;

4. 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, which may include any indirect administrative

costs for services performed by the county on behalf of the

promotion agency; or

5. To ﬁ nance 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. . . .

Subparagraphs 1. and 2. may be implemented through service

contracts and leases with lessees that have sufﬁ cient expertise

or ﬁ nancial capability to operate such facilities.

(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, ﬁ shing piers or nature centers which are publicly

owned and operated or owned and operated by not-for-proﬁ t

organizations and open to the public. All population ﬁ gures

relating to this subsection shall be based on the most recent

population estimates prepared pursuant to the provisions of s.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-14

186.901. These population estimates shall be those in effect on

July 1 of each year.

* * *

(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.)

You advise that Jackson County has a population of less than 750,000

and, thus, subsection (5)(b) above would authorize the county to use

tourist development taxes for the additional purposes described therein.

The county wishes to expend its tourist development tax revenues for

the construction of the boat ramp and the observation platform as part

of a “nature center.”

Initially, I would note that this ofﬁ ce has consistently found that

tourist development tax revenues may not be used for the construction

of boat ramps.

Attorney General Opinion 91-62 considered whether

tourist development tax revenues could be used pursuant to what is now

section 125.0104(5)(a)5., Florida Statutes, for the repair, construction,

and improvement of boat ramps and parking facilities to serve inland

lakes and rivers in Citrus County. After a consideration of the language

of the statute, the opinion concludes:

[T]he terms of s. 125.0104(5)(a)4., F.S. (1990 Supp.),

relate

to the ‘actual, physical nature of the beach and [do] not

contemplate the construction of artiﬁ cial structures upon the

beach or otherwise authorize activities which do not protect

or enhance the physical nature of the beach.’

Similarly, the

provisions relating to inland lakes and rivers should be read

to authorize the direct physical enhancement or protection of

these water bodies rather than authorizing the construction of

artiﬁ cial structures upon them or other activities which do not

protect or enhance such lakes or rivers.

Thus, the construction of boat ramps and attendant parking

facilities in proximity to inland lakes and rivers would appear

to be outside the scope of expenditures authorized in s.

125.0104(5)(a)4., F.S. (1990 Supp.).

Attorney General Opinion 91-62 is distinguishable from the instant

situation, as it was based upon the use of tourist development tax

revenues under section 125.0104(5)(a), Florida Statutes, and does not

address the additional uses for tourist development tax revenues under

subsection (5)(b). It should be noted, however, that this ofﬁ ce is of the

position that the provisions in subsection (5)(b) do not enlarge the uses

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-14

described in subsection (5)(a). Rather, subsection (5)(b) authorizes

a county with a population of less than 750,000 to expend tourist

development tax revenues for “zoological parks, ﬁ shing piers or nature

centers” in addition to those purposes described in subsection (5)(a).

As you have indicated that Jackson County has a population of less

than 750,000 and that tourist development tax revenues may be used in

such circumstance for the construction of a nature center, the question

is now whether a boat ramp and elevated platform on the Chipola River

may be constructed as part of a “nature center” for purposes of section

125.0104(5)(b), Florida Statutes.

This ofﬁ ce has previously recognized that the term “nature center”

is not deﬁ ned for purposes of the statute. By deconstructing the term

and individually deﬁ ning the words, however, it was concluded that the

plain meaning of the term may be derived: “nature” being deﬁ ned as

“the aspect of the out-of-doors (as a landscape): natural scenery”; and

“center” connoting “a point around which things revolve: a focal point

for attraction, concentration, or activity.” In Attorney General Opinion

94-12, it was determined that given this common meaning along with

its placement with zoological parks and ﬁ shing piers in the statute,

the Legislature apparently contemplated that tourist development tax

revenues could be used to acquire property for a nature trail or preserve

open to the public. The opinion reiterated that it is the governing body

of the county which must ultimately make the determination that the

expenditure is for a purpose that falls within the enumerated authorized

uses in section 125.0104(5), Florida Statutes.

In Attorney General Opinion 97-48, this ofﬁ ce was asked to consider

whether a county could use tourist development tax dollars to construct

an artiﬁ cial reef to provide diving and snorkeling opportunities in waters

bordering the county. Information provided with the opinion request

suggested that the proposed artiﬁ cial 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 center within

the scope of section 125.0104(5)(b), Florida Statutes, it was concluded

that tourist development taxes could be used for its development.

Finally, in Attorney General Opinion 2012-38, this ofﬁ ce considered

whether tourist development tax revenues could be used to repair,

improve and expand a multi-use pathway as part of a recreational

network, including the construction of pedestrian bridges to connect the

pathway over inland lakes and other bodies of water. Characterizing

the pathway as part of a nature center, the opinion concluded that the

expenditure was permissible should the county satisfy the statutory

requirement that the pedestrian bridges constitute an extension,

remodeling or improvement of a nature center. Of particular note,

the opinion found that the pedestrian bridges over the inland lakes

would serve as extensions and improvements of the multi-use pathway,

BIENNIAL REPORT OF THE ATTORNEY GENERAL

15-14

making it safer and more useful.

Much like a nature trail, an artiﬁ cial reef, or a multi-use pathway, it

would appear that an area on a river could be designated as a “nature

center” as a natural part of the landscape and a focal point for activity.

Moreover, the speciﬁ c mention of a ﬁ shing pier, makes clear that

the construction of an artiﬁ cial structure is contemplated under the

provisions of subsection (5)(b). While this ofﬁ ce would maintain that the

construction of a boat ramp does not relate to the physical preservation

of an inland lake or river, prescribed under section 125.0104(5)(a),

Florida Statutes, and would not fall within the authorized uses for

tourist development tax revenues pursuant to that subsection, I

cannot deﬁ nitively conclude that the construction of a boat ramp and

an elevated platform as part of a nature center would fall outside the

authorized uses under subsection (5)(b). Much like the pedestrian

bridges considered in Attorney General Opinion 2012-38, a boat ramp

and observation platform may serve as improvements to the nature

center, making it safer and more useful. Ultimately, the county must

make the appropriate legislative determination that the construction of

a boat ramp and observation platform serve as a part of a nature center

and that such construction relates to and primarily promotes tourism.

While the construction of such structures does not protect or enhance

the natural state of the river as required by subsection (5)(a), there may

be instances where they act as an integral part of a nature center.

Accordingly, in a county with a population of less than 750,000,

section 125.0104(5)(b), Florida Statutes, authorizes the expenditure

of tourist development tax revenues for the construction of a nature

center which may contain a boat ramp and an elevated platform for

observation of birds and the landscape, when the county makes the

appropriate legislative determination that such project relates to and

primarily promotes tourism.

Section 125.0104(1), Fla. Stat.

See s. 125.0104(3)(a), Fla. Stat., stating it is the intent of the

Legislature that every person who rents, leases, or lets living quarters

or accommodations in “any hotel, apartment hotel, motel, resort

motel, apartment, apartment motel, roominghouse, mobile home park,

recreational vehicle park, condominium, or timeshare resort for a term

of 6 months or less is exercising a privilege which is subject to taxation

under this section . . . .”

See Ops. Att’y Gen. Fla. 10-09 (2010), 95-71 (1995), 94-12 (1994), 87-16

(1987), and 83-18 (1983).

See e.g., Ops. Att’y Gen. Fla. 94-12 (1994) (governing body of the county

must make determination that expenditure of tourist development tax

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-01

revenues for the acquisition of a railway right-of-way and construction of a

public recreational trail falls within the scope of expenditures authorized

by s. 125.0104, Fla. Stat.), 10-09 (2010), and 98-74 (1998).

See Op. Att’y Gen. Fla. 91-62 (1991) and Inf. Op. to the Hon. W.N.

Chapman, Walton Co. Bd. of Comms., November 5, 2014.

Section 125.0104(5)(a)4., Fla. Stat. (1990 Supp.), provided authorized

uses of tourist development tax revenues:

To ﬁ nance 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.

Citing Op. Att’y Gen. Fla. 90-55 (1990).

See also Op. Att’y Gen. Fla. 13-29 (2013) (tourist development tax

revenues may be used for a coral outplanting project to repair or improve

a naturally occurring reef as the repair of a zoological or nature center).

AGO 2016-01 – March 10, 2016

GOVERNMENT IN THE SUNSHINE LAW – MEETINGS –

PRIVATE ORGANIZATION

APPLICATION OF SUNSHINE LAW TO BOARD OF TRUSTEES

OF PRIVATE INSURANCE TRUST FUND

To: Mr. Dustin L. Watkins, Attorney, Board of Trustees of the Fort

Lauderdale Fire Fighters Insurance Trust Fund

QUESTION:

Is the Board of Trustees of the Fort Lauderdale Fire Fighters

Insurance Trust Fund subject to open meetings requirements of

the Government in the Sunshine Law, section 286.011, Florida

Statutes?

SUMMARY:

The Board of Trustees of the Fort Lauderdale Fire Fighters

Insurance Trust Fund is subject to the open meetings

requirements of the Government in the Sunshine Law, section

286.011, Florida Statutes.

Your letter acknowledges that in 1997 your ofﬁ ce asked the same

question on behalf of the same client. Attorney General Opinion 98-

01 concluded that “[t]he Board of Trustees of the Fort Lauderdale

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-01

Fire Fighters Insurance Trust Fund is subject to the Government in

the Sunshine Law, section 286.011, Florida Statutes.”

As reported in

this earlier opinion, the Fort Lauderdale Fire Fighters Insurance Trust

Fund was created in August of 1981 pursuant to an Agreement and

Declaration of Trust between the City of Fort Lauderdale and the Fire

Fighters Union. The transfer of this responsibility to the union was

the result of a collective bargaining agreement. The purpose of the

trust fund was to receive contributions on behalf of the city and each

employee, and to administer these funds and provide insurance beneﬁ ts

to the participants and their beneﬁ ciaries.

Prior to entering into this agreement, the city provided insurance

beneﬁ ts directly to its ﬁ re department employees. As was noted in the

1998 opinion, and you have not suggested it is currently otherwise, the

city continues to administer insurance beneﬁ t plans for all other city

government employees.

This ofﬁ ce has recognized that private organizations generally are

not subject to the Government in the Sunshine Law unless the private

organization has been created by a public agency, has been delegated

the authority to perform some governmental function, or plays an

integral part in the decision-making process of a public entity.

Thus,

the Sunshine Law does apply to private entities providing services to

governmental agencies and acting on behalf of those agencies in the

performance of their public duties.

The Agreement and Declaration of Trust of the Fort Lauderdale Fire

Fighters Insurance Trust Fund (the agreement) provides that the term

“[p]lan” as used in the trust agreement shall mean “these rules and

regulations as adopted and thereafter amended from time to time by

the Trustees regarding death, accident, health and hospitalization,

and surgery, medical beneﬁ ts and other related beneﬁ ts and the

basis on which such beneﬁ ts are made available to Participants and

Beneﬁ ciaries, as determined by the Trustees.”

The term “[e]mployer”

as used therein includes the City of Fort Lauderdale, Florida and any

other employer who “is bound to make payment of contributions on

behalf of certain of its Employees to the Trust Fund.”

An “[e]mployee”

for purposes of the trust agreement is “[a]ny Employee represented by

the Union and working for an Employer as deﬁ ned herein”; ofﬁ cers or

employees of the union; former ﬁ re department employees along with

the spouses, widows, children and dependents; and other employees

of the Fort Lauderdale Fire Department for whom the trustees have

agreed to accept contributions.

My review of the earlier opinion suggests that these terms have

remained substantially the same. While collective bargaining may

result in limiting the scope of the insurance being provided during a

particular year, that is, as you state, that the trust fund currently is

limited to reimbursing retired Fort Lauderdale ﬁ re ﬁ ghters for certain

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-01

medical expenses and health insurance premiums that they may incur,

the trust agreement reﬂ ects the broader authority of the trust to provide

insurance beneﬁ ts to Fort Lauderdale’s ﬁ re ﬁ ghter participants and

beneﬁ ciaries.

In Attorney General Opinion 98-01, this ofﬁ ce considered the

applicability of the Government in the Sunshine Law to the Fort

Lauderdale Fire Fighters Insurance Trust Fund and determined

that the board of directors of the trust fund was acting on behalf of

the city in collecting and administering employee contributions and

was accomplishing a public purpose. Information and data provided

by the city were used to compile records of the funds and the moneys

being administered were public funds contributed on behalf of public

employees.

The opinion notes that a responsibility of a governmental

agency may not be transferred to a private entity with the effect of

creating an exemption from the open meetings requirement of section

286.011, Florida Statutes.

Again, while the situation presented by your most recent letter is

not identical to that discussed in Attorney General Opinion 98-01, the

similarities are signiﬁ cant and it would appear that the reasoning of

the 1998 opinion and the Informal Opinion provided to the Board of

Trustees of the Fort Lauderdale Fire Fighters Insurance Trust Fund

dated December 28, 1998, on the Government in the Sunshine Law

would be applicable.

Thus, it is my opinion that the Board of Trustees of the Fort

Lauderdale Fire Fighters Insurance Trust Fund is subject to the open

meetings requirements of the Government in the Sunshine Law, section

286.011, Florida Statutes.

I note that an Informal Attorney General Opinion dated 12/28/98 on

the same topic was issued to Mr. Richard M. Weiner, attorney for the

board of trustees of the Florida Fire Fighters Insurance Trust Fund

and afﬁ rming the conclusion in Op. Att’y Gen. Fla. 98-01 (1998) under

the slightly different facts of the restated trust agreement entered into

following issuance of Op. Att’y Gen. Fla. 98-01 (1998).

See Op. Att’y Gen. Fla. 07-27 (2007).

See, e.g., Ops. Att’y Gen. Fla. 00-03 (2000) (board of directors of

corporation performing services for Department of Children and Families

which services would normally be performed by department); 98-49

(1998) (nonproﬁ t organization designated by county to fulﬁ ll role of

county’s dissolved cultural affairs council); 83-95 (1983) (private nonproﬁ t

corporation when county accepts corporation’s offer to review, recodify,

and prepare draft amendments to county zoning code).

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-02

See Art., I, s. 1.11, Agreement and Declaration of Trust of the Fort

Lauderdale Fire Fighters Insurance Trust Fund.

Id. s. 1.9.

Supra n.5 at s.1.8.

I note that it appears that the city continues to contribute toward

insurance for its ﬁ reﬁ ghter employees under the bargaining agreement.

See, e.g., Article 34, Agreement Between City of Fort Lauderdale and

Local 765 effective April 6, 2010 - September 30, 2012.

AGO 16-02 – March 10, 2016

INFRASTRUCTURE SURTAX – EMERGENCY GENERATORS –

MUNICIPALITY

USING INFRASTRUCTURE SURTAX TO FUND PURCHASE OF

EMERGENCY GENERATORS, POWER SOURCE UNITS, AND

ASSOCIATED SITE IMPROVEMENTS AND UPGRADES, AS

FIXED CAPITAL EXPENDITURE OR OUTLAY

To: Mr. Alan S. Zimmet, B.C.S., City Attorney, City of Largo

QUESTION:

May the City of Largo use proceeds from the local government

infrastructure surtax collected pursuant to section 212.055(2),

Florida Statutes, to fund the purchase of emergency generators

and Uninterruptible Power Source units for the city’s Municipal

Complex, and to fund site improvements and upgrades necessary

to activate and utilize this equipment?

SUMMARY:

Emergency generators and Uninterruptible Power Source

units, and the site improvements and electrical system upgrades

necessary to ensure proper functioning of such equipment

within the Municipal Complex, constitute infrastructure under

section 212.055(2), Florida Statutes, which may be acquired

using funds from the Largo infrastructure surtax.

Section 212.055(2), Florida Statutes, authorizes local governments

to enact an ordinance for approval by electors that would levy a

discretionary sales surtax of .5 percent or 1 percent, to be used “to

ﬁ nance, plan, and construct infrastructure[,]” among other uses, as

stated in subsection (2)(d)1. The statute deﬁ nes “infrastructure” in

subsection (2)(d)1. as:

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-02

a. Any ﬁ xed capital expenditure or ﬁ xed 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.

Although “ﬁ xed capital expenditure” and “ﬁ xed capital outlay” are not

deﬁ ned in Chapter 212, Florida Statutes, they are deﬁ ned in Chapter

216, Florida Statutes, which relates to state planning and budgeting.

When the Legislature uses the identical words or phrases in different

chapters of the Florida Statutes, we may assume that it intended the

terms to mean the same thing.

Under section 216.011, Florida Statutes:

(m) “Expenditure” means the creation or incurring of a legal

obligation to disburse money.

* * *

(p) “Fixed capital outlay” means the appropriation category

used to fund real property (land, buildings, including

appurtenances, ﬁ xtures and ﬁ xed 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, when appropriated by the

Legislature in the ﬁ xed capital outlay appropriation category.

It may also be useful to consider the common understanding and

deﬁ nitions of the component parts of the phrases, “ﬁ xed capital

expenditure” and “ﬁ xed capital outlay.”

The term “ﬁ xed capital” refers

to “money invested in ﬁ xed assets, such as land and machinery,” and

“ﬁ xed asset” refers more speciﬁ cally to a “long-term” item that is owned

and has value, such as “equipment, land, or an industrial plant.”

order to satisfy the requirements of section 212.055(2), Florida Statutes,

the asset must have a life expectancy of ﬁ ve years or longer.

Based upon the provisions and deﬁ nitions quoted above, section

212.055(2), Florida Statutes, permits a local government to seek voter

approval of a sales surtax that will be used to replace, perform major

repair of, or renovate long-term ﬁ xed assets in a public facility, such as

machinery and equipment, in order to materially extend the property’s

useful life or improve its functional use. This includes the acquisition of

equipment necessary to implement the improvements.

You state in your memorandum of law that the city’s main ofﬁ ces

are housed in its Municipal Complex, including the city hall, the

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-02

Largo Police Department, the 911 Communications Center, and the

Emergency Operations Center. There are currently ﬁ ve generators

used for backup emergency power within the Municipal Complex, three

of which have far exceeded their useful life expectancy. The remaining

two are smaller and capable of providing only limited resources and are

within the typical 20-year generator replacement cycle. In addition,

there are three Uninterruptible Power Source units, all of which have

reached the end of their useful lives and are no longer supported by

the manufacturer. Finally, the electrical system itself has never

been comprehensively updated, and its components that manage the

emergency power supply are not compatible with power generated by

new technology. You assert that substantial upgrades to the electrical

system are necessary before new emergency power equipment can be

utilized.

The condition of these power sources led the city to engage an

engineering ﬁ rm to evaluate the emergency backup power system

and make any necessary recommendations for improvements to meet

current and future needs of the Municipal Complex. You were informed

that the city should purchase two 750 KW power generators that use

internal combustion engines and include an advanced distribution

system. There would also be new Uninterrupted Power Supply units to

provide battery backup power for the electrical system in the Municipal

Complex, with a separate unit dedicated to the 911 Communications

Center. The equipment would be incorporated as ﬁ xtures in the

Municipal Complex property and buildings. This new equipment would

allow the complex to operate in an emergency situation with little

or no interruption in its power supply and would have the ability to

speciﬁ cally divert energy to critical operations during an emergency or

disaster while still conserving power.

Based on the condition of the power sources that you describe,

replacement of the outdated ﬁ xed machinery and equipment for

generating and managing emergency backup power will materially

improve the functional use of the Municipal Complex. The machinery

and equipment purchased will have a life expectancy of ﬁ ve or more

years. Associated site improvements and electrical system upgrades

are equally necessary to implement the emergency machinery and

equipment replacements. Accordingly, the items described properly

constitute infrastructure under section 212.055(2), Florida Statutes, and

it is my opinion that proceeds from the local government infrastructure

surtax would properly be used to purchase the machinery, equipment,

and associated improvements for the Municipal Complex.

Goldstein v. Acme Concrete Corp., 103 So. 2d 202, 204 (Fla. 1958). And

see Op. Att’y Gen. Fla. 83-32 (1983).

When a statute does not speciﬁ cally deﬁ ne words of common usage, such

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-03

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).

Black’s Law Dictionary, “ﬁ xed capital” & “ﬁ xed asset” (within

deﬁ nition of “capital asset”), http://web2.westlaw.com (10th ed. 2014).

These dictionary deﬁ nitions taken from the same source relied upon in

prior Attorney General Opinions addressing this subject have changed

slightly.

AGO 16-03 – March 10, 2016

TAXATION – COUNTIES – AD VALOREM TAX – INDUSTRIAL

DEVELOPMENT AUTHORITY

THERE IS NO SPECIFIC LEGISLATIVE AUTHORITY

ALLOWING THE COUNTY TO APPORTION A PERCENTAGE

OF AD VALOREM TAX PROCEEDS TO THE INDUSTRIAL

DEVELOPMENT AUTHORITY BASED UPON THE NUMBER OF

BUSINESSES THAT LOCATE IN THE COUNTY DUE TO THE

EFFORTS OF THE AUTHORITY

To: The Honorable Patricia Patterson, Chairperson, Taylor County

Board of County Commissioners

QUESTION:

Is the Taylor County Board of County Commissioners

authorized to increase the regular budget of the Taylor County

Development Authority by apportioning to the Authority a

percentage of ad valorem tax revenues generated from new

businesses that have located in Taylor County as a result of the

efforts and assistance of the Authority?

SUMMARY:

Sections 125.016 and 159.48, which grant counties the power

to levy and collect ad valorem taxes, do not grant a board of

county commissioners the power to award a percentage of the

proceeds to the industrial development authority based upon

the number of new businesses that have located in the county

as a result of the authority’s efforts, nor do counties have an

independent power to tax.

In 1959, the Legislature enacted Chapter 59-1927, Laws of Florida,

creating the Taylor County Development Authority, a public corporation

tasked with assisting in the planning and development of Taylor

County. In 1970, the Legislature passed sections 159.44 through 159.53,

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16-03

Florida Statutes, which articulate the functions and powers of county

industrial development authorities, and provide that these powers are

supplemental to powers already created by law.

You have advised this ofﬁ ce that the Taylor County Development

Authority proposed to the Taylor County Board of County Commissioners

that a percentage of new ad valorem tax revenues be apportioned to

the Authority based upon the number of new businesses that moved

to or started up in Taylor County as a result of the Authority’s efforts

and assistance. The Authority believes this would “incentivize” it by

“increasing its operating budget when it secures new investment” and

that it would relieve the Authority of the obligation “to prepare and

present justiﬁ cations for the existing budget and for budget increases[.]”

You suggest that the proposed apportionment would be “a natural

extension of the county’s inherent tax and spend power” found in two

statutes that speciﬁ cally grant counties the power to levy ad valorem

taxes, namely, sections 125.016 and 159.48, Florida Statutes.

Section 125.016, Florida Statutes, is a general grant to counties of the

authority to impose an ad valorem tax, and provides, in full:

Annually an ad valorem tax of not exceeding 1½ mills may be

levied upon all property in the county, which shall be levied

and collected as other county taxes are levied and collected. The

taxes shall be charged to the general fund, but such revenue

may be appropriated by the county for the cost of constructing,

operating, maintaining, expanding, enlarging, improving, or

developing any project or projects herein speciﬁ ed, or for the

payment of the costs of removing and relocating any structures,

installations, or facilities which in the opinion of the board

of county commissioners may be required for the safe and

efﬁ cient operation of any such projects. Said tax may be levied,

collected, and expended for any of the purposes herein speciﬁ ed

notwithstanding the cost and expense thereof which may have

been incurred in a previous year, and when so collected and

used the tax shall be considered to be levied, collected and used

for a county purpose.

Section 159.48, Florida Statutes, speciﬁ cally authorizes a board of

county commissioners to levy ad valorem taxes for the beneﬁ t of the

county’s industrial development authority, and provides, in full:

The exercise of the powers granted industrial development

authorities is declared to be a public and county purpose. The

board of county commissioners is authorized to, and may, levy

ad valorem taxes in an amount not to exceed 1 mill annually

for the purposes of ss. 159.44-159.53. The proceeds of such ad

valorem tax shall be used to aid each industrial development

authority in fostering, developing, and locating industry in the

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-03

county and to pay the reasonable operating expenses of the

authority to the extent that the board of county commissioners

ﬁ nds necessary. No ad valorem taxes shall ever be used for the

purpose of paying the interest or principal on any bonds issued

to ﬁ nance or reﬁ nance an industrial or manufacturing project

as prohibited by the State Constitution.

A county’s power to levy taxes is governed by the Florida Constitution.

The Constitution provides that “[n]o tax shall be levied except in

pursuance of law”

and directs the state to authorize counties to levy ad

valorem taxes.

“Counties do not possess inherent power to tax; the legal

authority of a county to tax must derive from the state.”

Being purely

statutory in nature, taxes on property “can be lawfully levied, assessed,

and collected only in the express method pointed out by statute.”

(e.s.)

Section 125.01(1)(r), Florida Statutes, provides that counties have the

power to: “Levy and collect taxes,…for county purposes…which power

shall be exercised in such manner, and subject to such limitations, as

may be provided by general law.” Thus, a county must be authorized by

general law to exercise its taxing authority and has no home rule power

or independent power to tax.

Neither section 125.016, Florida Statutes, nor section 159.48, Florida

Statutes, contains language that would allow the board of county

commissioners to carve out a percentage of the ad valorem revenues

collected from a subset of new businesses and pledge it to the Authority.

Section 125.016 permits ad valorem tax revenues to be used (1) for “the

cost of constructing, operating, maintaining, expanding, enlarging,

improving, or developing” county projects, and (2) for “the costs of

removing and relocating any structures, installations, or facilities” to

ensure “the safe and efﬁ cient operation of any such projects.” Section

159.48 permits the proceeds to be used (1) to aid the Authority in

“fostering, developing, and locating industry in the county[,]” and (2) “to

pay the reasonable operating expenses of the authority[.]” The latter

directs the county commissioners to dedicate ad valorem proceeds to the

Authority “to the extent that the board of county commissioners ﬁ nds

necessary.”

Both provisions, therefore, permit the use of tax proceeds to fund

ongoing and future projects, activities, and expenses that are consistent

with the Authority’s purpose. They do not authorize the county to

release a portion of the tax proceeds to reward past efforts as a means of

“incentivizing” the Authority. The merit of incentivizing the Authority

is not at issue in this opinion, only whether the method you propose

is permitted under the law. When a statute authorizes a unit of local

government to impose a tax, the statute must be strictly construed, may

not be extended by implication, and may not be enlarged to include any

matter not speciﬁ cally included, even if consistent with the purpose

of the statute.

Pledging the tax revenues in the manner you propose

would exceed the parameters of sections 125.016 and 159.48, Florida

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-03

Statutes.

Even section 125.045(2), Florida Statutes, which authorizes a county

to use public funds to encourage the development of private enterprise

within its borders, speaks in terms of granting funds for ongoing and

future projects rather than as a reward for having previously attracted

new businesses to the county: “The governing body of a county may

expend public funds to attract and retain business enterprises, and

the use of public funds toward the achievement of such economic

development goals constitutes a public purpose.”

(e.s.) Indeed,

paragraph (3) suggests the kinds of economic development activities the

county may fund:

developing or improving local infrastructure, issuing bonds to

ﬁ nance or reﬁ nance the cost of capital projects for industrial

or manufacturing plants, leasing or conveying real property,

and making grants to private enterprises for the expansion of

businesses existing in the community or the attraction of new

businesses to the community.

In sum, the Board of County Commissioners has no authority under

either section 125.016 or 159.48 to pledge a percentage of ad valorem

tax proceeds to the Taylor County Development Authority based upon

the amount of revenue collected from new businesses that have located

in Taylor County as a result of the Authority’s efforts, because these

statutes do not grant that power to the counties, and counties possess

no home rule or independent power regarding taxation.

County v. State, 733 So. 2d 1012, 1014 (Fla. 1999); Whitney v.

Hillsborough County, 127 So. 486, 490-91 (Fla. 1930).

Art. VII, s. 1(a), Fla. Const.

“Counties, school districts, and municipalities shall, and special

districts may, be authorized by law to levy ad valorem taxes[.]” Art. VII,

s. 9(a), Fla. Const.

Gilreath v. Westgate Daytona, Ltd., 871 So. 2d 961, 966 (Fla. 5th DCA

2004). See also Op. Att’y Gen. Fla. 00-06 (2000).

State ex rel. Seaboard Air Line R. Co. v. Gay, 35 So. 2d 403, 409

(Fla. 1948). See also Wilson v. School Bd. of Marion County, 424 So.

2d 16, 19-20 (Fla. 5th DCA 1982); Op. Att’y Gen. Fla. 08-26 (2008) (the

statutory enumeration of things upon which tax revenues may be spent

“is ordinarily to be construed as excluding from its operation all things

not expressly mentioned.”).

Alachua County v. Adams, 677 So. 2d 396 (Fla. 1st DCA 1996); and see

Ops. Att’y Gen. Fla. 09-28 (2009); 00-06 (2000); 99-72 (1999).

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-04

Alachua County v. Adams, 677 So. 2d at 398.

Cf. Op. Att’y Gen. Fla. 90-23 (1990) (a municipality could not enact

an ordinance allowing a rebate to property owners of a portion of ad

valorem taxes collected on their newly annexed property, as an incentive

to encourage further annexation of property into the municipality, when

there was no speciﬁ c statutory or constitutional basis for it).

Section 125.045(2), Fla. Stat., also directs that a liberal construction be

applied to provisions in Ch. 125, Fla. Stat., that set forth the powers and

duties of the county. By its terms, however, this provision applies only to

the powers that may lawfully be exercised by the county, and thus would

not allow an exercise of taxing power in a manner that is inconsistent

with general law.

AGO 16-04 – March 30, 2016

MUNICIPALITIES – MUNICIPAL CODE ENFORCEMENT –

DRONES – PRIVACY RIGHTS

AUTHORITY OF MUNICIPALITY TO ENACT ORDINANCE

PROHIBITING PRIVATE USE OF DRONES TO INVADE PRIVACY

RIGHTS OF CITIZENS

To: Mr. David M. Wolpin, Attorney for the City of Aventura

QUESTION:

Does section 934.50, Florida Statutes, preempt the adoption

of a municipal ordinance prohibiting the use of drones equipped

with imaging devices within the city’s limits by private

individuals and entities, when such use invades the privacy

rights of the city’s residents?

SUMMARY:

Section 934.50, Florida Statutes, does not preempt the

adoption of a municipal ordinance prohibiting the use of drones

by private individuals for surveillance which invades the privacy

rights of the city’s residents.

You state that the City of Aventura is contemplating the enactment

of an ordinance to prohibit the unauthorized use of surveillance drones

by private persons, when such use invades the privacy rights of citizens.

The proposed ordinance would track the statutory exclusions from the

prohibition in section 934.50(4), Florida Statutes, and would impose

civil penalties for its violation pursuant to the authority in Chapter

162, Florida Statutes.

The city, however, questions whether such an

ordinance would be preempted by or be in conﬂ ict with section 934.50,

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-04

Florida Statutes, the “Freedom from Unwarranted Surveillance Act.”

Initially, I would note that the discussion below generally addresses

the provisions in section 934.50, Florida Statutes, and does not speak to

the speciﬁ c language the city may use in its ordinance.

Section 934.50(3), Florida Statutes, in prohibiting the use of drones,

provides:

(a) A law enforcement agency may not use a drone to gather

evidence or other information.

(b) A person, a state agency, or a political subdivision as

deﬁ ned in s. 11.45 may not use a drone equipped with an

imaging device to record an image of privately owned real

property or of the owner, tenant, occupant, invitee, or licensee

of such property with the intent to conduct surveillance on the

individual or property captured in the image in violation of

such person’s reasonable expectation of privacy without his or

her written consent. For purposes of this section, a person is

presumed to have a reasonable expectation of privacy on his or

her privately owned real property if he or she is not observable

by persons located at ground level in a place where they have a

legal right to be, regardless of whether he or she is observable

from the air with the use of a drone.

Speciﬁ c exceptions to the prohibition against the use of drones are

enumerated.

The statute further provides remedies for violation of its

terms:

(5)(a) An aggrieved party may initiate a civil action against a

law enforcement agency to obtain all appropriate relief in order

to prevent or remedy a violation of this section.

(b) The owner, tenant, occupant, invitee, or licensee of

privately owned real property may initiate a civil action

for compensatory damages for violations of this section and

may seek injunctive relief to prevent future violations of this

section against a person, state agency, or political subdivision

that violates paragraph (3)(b). In such action, the prevailing

party is entitled to recover reasonable attorney fees from

the nonprevailing party based on the actual and reasonable

time expended by his or her attorney billed at an appropriate

hourly rate and, in cases in which the payment of such a fee

is contingent on the outcome, without a multiplier, unless the

action is tried to verdict, in which case a multiplier of up to

twice the actual value of the time expended may be awarded in

the discretion of the trial court.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-04

be sought against a person subject to other requirements and

limitations of law, including, but not limited to, part II of

chapter 768 and case law.

(d) The remedies provided for a violation of paragraph (3)(b)

are cumulative to other existing remedies.

Section 166.021(1), Florida Statutes, a provision of the “Municipal

Home Rule Powers Act,” states that municipalities may exercise any

power for municipal purposes except when expressly prohibited by law.

Section 166.021(3), Florida Statutes, provides that pursuant to the

authority set forth in section 2(b), Article VIII, Florida Constitution, the

legislative body of each municipality has the power to enact legislation

concerning any subject upon which the state Legislature may act

except, among other things, any subject that is expressly prohibited

by the constitution or any subject that is expressly preempted to state

or county government by the Constitution or by general law.

The

term “express” as used in section 166.021, Florida Statutes, has been

construed to mean a reference that is distinctly stated and not left to

inference.

A review of section 934.50, Florida Statutes, does not reveal an

express preemption of the regulation of drones, nor do the provisions

of the statute appear to be so pervasive so as to preclude any other

regulation by a local government.

At this time, there does not appear

to be a uniform state law which would preempt local regulation of the

use of drones by private persons in the manner proposed by the city.

As was established in City of Miami Beach v. Rocio Corporation:

The principle that a municipal ordinance is inferior to state law

remains undisturbed. Although legislation may be concurrent,

enacted by both state and local governments in areas not

preempted by the state, concurrent legislation enacted by

municipalities may not conﬂ ict with state law. If conﬂ ict

arises, state law prevails. An ordinance which supplements

a statute’s restriction of rights may coexist with that statute,

whereas an ordinance which countermands rights provided by

statute must fail.

Accordingly, it is my opinion that section 934.50, Florida Statutes,

does not preempt the adoption of a municipal ordinance prohibiting

the use of drones equipped with imaging devices within the city limits

by private individuals and entities, when such use invades the privacy

rights of the city’s residents.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-04

Chapter 162, Fla. Stat., establishes administrative enforcement

procedures and a means of imposing administrative ﬁ nes by local

governing bodies for violations of local codes and ordinances for which no

criminal penalty has been speciﬁ ed.

While you have limited your inquiry to the impact of s. 934.50, Fla. Stat.,

the Federal Aviation Authority and federal law may be implicated in the

regulation of drones. Regrettably, this ofﬁ ce does not interpret federal

law, so it may be advisable to contact the Federal Aviation Authority for

further direction.

Section 934.50(2)(a), Fla. Stat., provides:

“Drone” means a powered, aerial vehicle that:

1. Does not carry a human operator;

2. Uses aerodynamic forces to provide vehicle lift;

3. Can ﬂ y autonomously or be piloted remotely;

4. Can be expendable or recoverable; and

5. Can carry a lethal or nonlethal payload.

Section 934.50(4), Fla. Stat.:

EXCEPTIONS.–This section does not prohibit the use of a

drone:

(a) To counter a high risk of a terrorist attack by a speciﬁ c

individual or organization if the United States Secretary of

Homeland Security determines that credible intelligence

indicates that there is such a risk.

(b) If the law enforcement agency ﬁ rst obtains a search

warrant signed by a judge

authorizing the use of a drone.

suspicion that, under particular circumstances, swift action is

needed to prevent imminent danger to life or serious damage

to property, to forestall the imminent escape of a suspect or the

destruction of evidence, or to achieve purposes including, but

not limited to,

facilitating the search for a missing person.

(d) By a person or an entity engaged in a business or profession

licensed by the state, or by an agent, employee, or contractor

thereof, if the drone is used only to perform reasonable tasks

within the scope of practice or activities permitted under such

person’s or entity’s license. However, this exception does not

apply to a profession in which the licensee’s authorized scope

of practice includes obtaining information about the identity,

habits, conduct, movements, whereabouts, afﬁ liations,

associations, transactions, reputation, or character of any

society, person, or group of persons.

(e) By an employee or a contractor of a property appraiser

who uses a drone solely for the purpose of assessing property

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-05

for ad valorem taxation.

(f) To capture images by or for an electric, water, or natural

gas utility:

1. For operations and maintenance of utility facilities,

including facilities used in the generation, transmission, or

distribution of electricity, gas, or water, for the purpose of

maintaining utility system reliability and integrity;

2. For inspecting utility facilities, including pipelines, to

determine construction, repair, maintenance, or replacement

needs before, during, and after construction of such facilities;

3. For assessing vegetation growth for the purpose of

maintaining clearances on utility rights-of-way;

4. For utility routing, siting, and permitting for the purpose

of constructing utility facilities or providing utility service; or

5. For conducting environmental monitoring, as provided by

federal, state, or local law, rule, or permit.

(g) For aerial mapping, if the person or entity using a drone for

this purpose is operating in compliance with Federal Aviation

Administration regulations.

(h) To deliver cargo, if the person or entity using a drone for

this purpose is operating in compliance with Federal Aviation

Administration regulations.

(i) To capture images necessary for the safe operation or

navigation of a drone that is being used for a purpose allowed

under federal or Florida law.

Section 934.50(5), Fla. Stat.

Section 166.021(3)(b) and (c), Fla. Stat.

See Edwards v. State, 422 So. 2d 84, 85 (Fla. 2d DCA 1982); Op. Att’y

Gen. Fla. 84-83 (1984). Cf. Pierce v. Division of Retirement, 410 So. 2d

669, 672 (Fla. 2d DCA 1982).

Compare Inf. Op. to Mr. James D. Palermo, dated September 25, 2002,

Florida’s Beverage Law does not expressly preempt local regulation

prohibiting individuals under the age of 21 from entering a bar.

404 So. 2d 1066, 1070 (Fla. 3d DCA 1981), petition for review denied,

408 So. 2d 1092 (Fla. 1981).

AGO 16-05 – June 8, 2016

FIREWORKS – MUNICIPALITIES – ORDINANCES

MUNICIPALITY PROHIBITED BY S. 10(5), CH. 2007-67, LAWS

OF FLA., FROM ISSUING NEW PERMITS FOR PERMANENT OR

TEMPORARY FACILITIES TO SELL FIREWORKS PURSUANT TO

S. 791.07, FLA. STAT.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-05

To: Mr. James A. (“Skip”) Fowler, City Attorney, City of Altamonte

Springs

QUESTION:

Does section 791.07, Florida Statutes, including the note from

Chapter 2007-67, Laws of Florida, prohibit the City of Altamonte

Springs from issuing a permit for the sale of fireworks in the

next calendar year?

SUMMARY:

Section 791.07, Florida Statutes, prevents the City of

Altamonte Springs from permitting a new permanent or

temporary retail sales facility to engage in sales of ﬁ reworks

authorized by section 791.07, Florida Statutes, because the city

had not issued any such permits before March 8, 2007.

Section 791.02, Florida Statutes, generally prohibits individuals

from selling ﬁ reworks.

Section 791.07, Florida Statutes, however,

authorizes individuals to sell ﬁ reworks for “frightening birds from

agricultural works and ﬁ sh hatcheries.” According to your request, the

City of Altamonte Springs has been asked to issue a permit for the sale

of ﬁ reworks pursuant to this provision. The city has never previously

issued a permit for the sale of ﬁ reworks for any purpose.

Section 791.07, Florida Statutes, provides:

Agricultural and ﬁ sh hatchery use.—Nothing in this

chapter shall prohibit the importation, purchase, sale, or

use of ﬁ reworks used or to be used solely and exclusively in

frightening birds from agricultural works and ﬁ sh hatcheries;

and such use shall be governed entirely by the rules prescribed

by the Department of Agriculture and Consumer Services.

Appended to this provision is a note quoting section 10(5), Chapter

2007-67, Laws of Florida, which was part of an enactment creating the

Consumer Fireworks Task Force within the Department of Agriculture

and Consumer Services. The Legislature created the task force in

2007 to study and take public input and testimony on multiple factors

related to the sale, regulation, and use of consumer ﬁ reworks. The Task

Force was directed to present its report to the Legislature by January

15, 2008, whereupon the task force would be dissolved. The enactment

closed with paragraph (5), which is now appended to section 791.07 and

provides:

Pending completion of the Legislature’s review of the task

force’s report and to ensure that ﬁ re prevention and safety

standards are uniform, a new permanent retail sales facility

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-05

engaged in sales otherwise permitted under s. 791.07, Florida

Statutes, may not be opened in this state after March 8, 2007,

unless the permanent retail sales facility has received site-plan

approval and construction has begun on or before March 8,

2007; the number of permits for temporary retail sales facilities,

such as tents, engaged in sales otherwise permitted by s. 791.07,

Florida Statutes, which are issued after March 8, 2007, by a

county, municipality, or other unit of local government may not

exceed the number of permits that such governmental entity

issued for such facilities during the previous calendar year;

and a municipality, county, or other unit of local government

may not adopt an ordinance, rule, regulation, or other law after

March 8, 2007, which directly prohibits or directly interferes

with the safety standards established by state law or the

right to purchase, sell, use, or possess consumer ﬁ reworks

in this state. However, if the Legislature enacts legislation to

provide for the comprehensive regulation of ﬁ re prevention and

safety standards for the use of consumer ﬁ reworks to replace

this subsection on or before July 1, 2008, this subsection does

not prohibit opening any such facility, permitting any such

temporary facility, or adopting any such ordinance or other law

after such legislation is enacted. (e.s.)

The task force presented its report to the Legislature on January 15,

2008.

The Legislature, however, did not enact legislation providing

comprehensive regulation regarding the use of consumer ﬁ reworks by

the deadline of July 1, 2008, nor has it repealed the moratorium.

By the plain language of section 10(5), Chapter 2007-67, Laws

of Florida, which is quoted in full in the note accompanying section

791.07, Florida Statutes,[5] local governments are precluded from

allowing a new facility to be opened for sale of ﬁ reworks, and each local

government may now only issue as many permits allowing temporary

facilities to engage in such sales as it had issued in calendar year 2006.

Having never issued a permit for ﬁ reworks sale in the City of Altamonte

Springs, the city is now barred from issuing any such permit.

In Attorney General Opinion 2009-18, this ofﬁ ce concluded that

the City of Coral Springs was precluded from enacting an ordinance

imposing any limits on state ﬁ reworks laws, because the city had no

ordinances regulating ﬁ reworks sale or use prior to the moratorium of

section 10(5), Chapter 2007-67, Laws of Florida. The opinion concluded

by stating that section 10(5) “prohibition remains in effect until the

Legislature takes action to remove the prohibition.”

Accordingly, it is my opinion, in light of the language in section 10(5),

Chapter 2007-67, Laws of Florida, that the City of Altamonte Springs,

which has issued no prior permits for the sale of ﬁ reworks, is precluded

from issuing any permits for the sale of ﬁ reworks in the next calendar

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-06

year.

“Fireworks” are deﬁ ned in section 791.01(4), Fla. Stat., as, in part,

“any combustible or explosive composition or substance or combination

of substances[.]” The term does not include “sparklers,” deﬁ ned in

paragraph (8) as, in part, “a device which emits showers of sparks upon

burning[.]”

The Department of Agriculture and Consumer Services has enacted

two rules implementing s. 791.07, Fla. Stat. Rules 5A-3.001 and 5A-

3.002, Fla. Admin. Code, set forth the procedure for obtaining permission

from the county sheriff for use of ﬁ reworks under s. 791.07, Fla. Stat.

See Op. Att’y Gen. Fla. 09-18 (2009), fn. 4, which sets forth some of the

recommendations the task force made in its report.

A bill was proposed in 2008 but died in committee, and is described in

fn. 6 of Op. Att’y Gen. Fla. 09-18 (2009). And see Inf. Op. to City Attorney

Maryanne Downs, City of Orlando, dated June 18, 2000.

Section 11.242(4)(d), Fla. Stat., provides that “[t]he published edition

of the Florida Statutes shall contain … matters, notes, data, and other

material as may be deemed necessary or admissible by the Ofﬁ ce of

Legislative Services for reference, convenience, or interpretation.”

AGO 16-06 – June 24, 2016

COUNTIES – FIREARMS – PREEMPTION – ZONING

APPLICATION OF COUNTY ZONING ORDINANCE PURSUANT

TO PREEMPTION EXCEPTION IN S. 790.33(4)(A), FLA. STAT., TO

PROHIBIT MANUFACTURE OF FIREARMS IN THE HOME

To: Mr. Michael S. Craig, County Attorney for Polk County

QUESTION:

Does the preemption exception for zoning ordinances in section

790.33(4)(a), Florida Statutes, allow Polk County to enforce a

zoning regulation that prohibits firearms manufacturing within

a person’s home?

SUMMARY:

The express exemption for zoning ordinances in section

790.33(4)(a), Florida Statutes, allows Polk County to enforce

its regulation restricting citizens from conducting a broad

range of businesses, including manufacturing, within the home

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-06

in residential areas, to the extent that the ordinance does not

prohibit ﬁ rearms manufacture as a means of regulating ﬁ rearms

or ammunition.

According to your request, an individual in Polk County applied to the

federal Bureau of Alcohol, Tobacco, Firearms and Explosives for a license

to manufacture and sell ﬁ rearms in his home. He applied for a Type 1

license, required for a dealer in ﬁ rearms, and a Type 7 license, required

for a manufacturer of ﬁ rearms.

The Bureau directed the applicant to

the Polk County Land Development Division for a determination as

to whether ﬁ rearms manufacturing would comply with the county’s

regulations regarding home occupations. The applicant seeks to conduct

the manufacturing in an accessory structure on his property.

This ofﬁ ce has repeatedly recognized that in section 790.33(1),

Florida Statutes, the Legislature has preempted the entire ﬁ eld of

ﬁ rearms regulation and thus local governments have no authority to

enact ordinances regulating ﬁ rearms and ammunition.

The question

you present is whether the county regulation you cite in your letter is

allowed by the Legislature’s exception in section 790.33(4)(a), Florida

Statutes, for certain zoning ordinances. You report that Polk County

has previously permitted retail and internet sales of ﬁ rearms and

ammunition, as well as assembly of small amounts of ammunition, but

the home occupation at issue here is ﬁ rearms manufacture.

The Polk County Land Development Code, Article III, was enacted

pursuant to the authority of section 163.3202, Florida Statutes, which

directs each county and municipality to adopt land development

regulations to implement the county’s comprehensive plan. Within the

code are guidelines for the various standard land use districts, such

as residential, commercial, and agricultural. Section 206 addresses

accessory property uses, deﬁ ned as “incidental and subordinate to

the primary use of the property” within the districts, such as garage

apartments, guest houses, security residences, clubhouses, recreation

facilities, child- and adult-care facilities, outdoor storage, etc. Section

206-E regulates home occupations as an accessory property use within a

residential land use district, addressing such factors as the percentage

of habitable space that may be used, amount of trafﬁ c that may be

generated, and signage, as well as prohibitions against display of

merchandise, noise, glare, fumes, etc. Five types of acceptable home

occupations are provided as “examples of home occupations”:

a. Activities conducted principally by telephone, computer,

facsimile, or mail.

b. Studios where handicrafts or objects-of-art are produced.

c. Teaching and tutoring instruction of no more than four

pupils at a time.

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16-06

d. Dressmaking or apparel alterations.

e. Barber and beauty shop (one chair).

In the provision at issue herein, paragraph E.12 lists nine types of

at-home occupations that are prohibited:

a. Adult entertainment.

b. Automotive service and repair.

c. Bed and breakfasts.

d. Eating and drinking establishments.

e. Kennels.

f. Manufacturing.

g. Tanning salons, tattoo parlors, massage parlors.

h. Commercial sales or leasing of vehicles.

i. Any use that requires a Building Code upgrade (i.e., from

residential standards to commercial standards) to accommodate

the home occupation. (e.s.)

You question whether the county has the power to prohibit ﬁ rearms

manufacture in the applicant’s home in light of section 790.33, Florida

Statutes, which preempts the ﬁ eld of ﬁ rearm regulation to the state, as

follows:

(1) PREEMPTION.—Except as expressly provided by the State

Constitution or general law, the Legislature hereby declares

that it is occupying the whole ﬁ eld of regulation of ﬁ rearms

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. (e.s.)

Paragraph (4) of the statute, however, goes on to list ﬁ ve exceptions

that are not preempted, including:

(4) EXCEPTIONS. – This section does not prohibit:

(a) Zoning ordinances that encompass ﬁ rearms businesses

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-06

along with other businesses, except that zoning ordinances

that are designed for the purpose of restricting or prohibiting

the sale, purchase, transfer, or manufacture of ﬁ rearms or

ammunition as a method of regulating ﬁ rearms or ammunition

are in conﬂ ict with this subsection and are prohibited[.]

Polk County has previously asked a question about the zoning

exception, which this ofﬁ ce answered in Attorney General Opinion 2008-

34. The county asked whether under section 790.33, Florida Statutes,

it would be permitted to restrict shooting ranges to commercial rather

than residential land use districts, because shooting ranges were

considered commercial businesses or high-intensity recreation under

the land development code, which would be excluded from residential

districts. This ofﬁ ce considered the question in light of the zoning

exception, stating:

Clearly, a municipality’s attempt to regulate ﬁ rearms is null

and void. However, the general provisions in section 790.33,

Florida Statutes, recognize that local zoning ordinances

which affect other businesses in the same way are

allowed. The statute is equally clear in prohibiting zoning

ordinances designed to restrict or prohibit the sale, purchase,

transfer, or manufacture of ﬁ rearms or ammunition as a

method of regulating ﬁ rearms or ammunition. Thus, a zoning

ordinance prohibiting any commercial business activities

within an area zoned for residential use would not appear to be

inconsistent with the intent of section 790.33, Florida Statutes.

(e.s.)

This ofﬁ ce concluded that the county was permitted to restrict the

siting of a sports shooting range to a commercial land use area based

upon existing zoning regulations.

Section 206-E in the Polk County Land Development Code prohibits

nine broad categories of business from being conducted in the home in

residential areas, including all types of manufacturing. To the extent

that the ordinance treats all of the nine diverse business categories the

same way, as well as all forms of manufacturing, it appears that the

ordinance was not designed to restrict or prohibit ﬁ rearms manufacture

with the underlying goal of regulating ﬁ rearms.

Based upon the plain language of the exception for zoning ordinances

and the scope of section 206-E of the Polk County Land Development

Code, it is my opinion that to the extent that the regulation prohibits

all manufacturing as a home occupation, it is not preempted by section

790.33(1), Florida Statutes.

See https://www.atf.gov/ﬁ rearms/listing-federal-ﬁ rearms-licensees-

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-07

fﬂ s-2016.

See Ops. Att’y Gen. Fla. 11-20 (2011), 11-17 (2011), and 05-40 (2005).

AGO 16-07 – June 24, 2016

GOLF CARTS – CHILD SAFETY RESTRAINTS –

MUNICIPALITIES – SEAT BELTS

REGULATION OF GOLF CARTS OPERATING ON PUBLIC

STREETS WITHIN MUNICIPALITY

To: Mr. A. Kurt Ardaman, City Attorney, City of Winter Garden

QUESTIONS:

1. Is the operation of a golf cart on the public streets of a

municipality subject to the child restraint requirements of

section 316.613, Florida Statutes?

2. Please clarify the limitation in section 316.212(8), Florida

Statutes, that “[a]n ordinance referred to in this section must

apply only to an unlicensed driver.”

3. May a municipality adopt an ordinance prohibiting the

operation of a golf cart on public streets by a person who does

not have a valid driver’s license?

4. Is a person who has a suspended or revoked license

considered an “unlicensed driver” within the meaning of section

316.212(8)(a), Florida Statutes?

SUMMARY:

1. The operation of a golf cart on the public streets of a

municipality is not subject to the child restraint requirements

of section 316.613, Florida Statutes.

2. The plain language of the statute limits a municipality’s

ordinance imposing more restrictive operation and safety

requirements on golf carts to unlicensed drivers.

3. A municipality may not prohibit the operation of a golf

cart by an unlicensed driver.

4. A person with a suspended or revoked driver license

appears to be treated as an unlicensed driver under Florida’s

motor vehicle licensure laws.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-07

Chapter 316, Florida Statutes, is the “Florida Uniform Trafﬁ c

Control Law.”

By enactment of the law, the Legislature has stated its

intent to make uniform trafﬁ c laws applicable throughout the state and

make it unlawful for any local authority to pass or attempt to enforce

an ordinance in conﬂ ict with the provisions of Chapter 316. The law

recognizes, however, that certain conditions, enumerated in section

316.008, Florida Statutes, require municipalities to pass other trafﬁ c

ordinances in regulation of municipal trafﬁ c that are not required to

regulate trafﬁ c outside the jurisdiction.

Section 316.008, Florida Statutes, sets forth speciﬁ c areas in which

municipalities may regulate trafﬁ c within their jurisdictions, including

the enactment of an ordinance to “permit, control, or regulate the

operation of vehicles, golf carts, mopeds, motorized scooters, and electric

personal assistive mobility devices on sidewalks or sidewalk areas when

such use is permissible under federal law.”

(e.s.) Moreover, section

316.212, Florida Statutes, designates roadways upon which golf carts

may be operated. While generally the operation of a golf cart upon a

public street or roadway is prohibited, the Legislature has recognized,

pertinent to your inquiry, that a golf cart may be operated upon “a

municipal street that has been designated by a municipality, or a

two-lane county road located within the jurisdiction of a municipality

designated by that municipality, for use by golf carts.”

Section 316.212,

Florida Statutes, further prescribes that golf carts may only be operated

during the hours between sunrise and sunset, unless “the responsible

governmental entity has determined that a golf cart may be operated

during the hours between sunset and sunrise and the golf cart is

equipped with headlights, brake lights, turn signals, and a windshield.”

While section 316.212 provides that a local government may enact an

ordinance relating to golf cart operation and equipment which is more

restrictive than those enumerated in the section, such ordinance may

apply only to an unlicensed driver.

Question 1.

Section 316.613, Florida Statutes, in part, states:

(1)(a) Every operator of a motor vehicle as deﬁ ned in this

section, while transporting a child in a motor vehicle operated

on the roadways, streets, or highways of this state, shall, if the

child is 5 years of age or younger, provide for protection of the

child by properly using a crash-tested, federally approved child

restraint device.

1. For children aged through 3 years, such restraint device

must be a separate carrier or a vehicle manufacturer’s

integrated child seat.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-07

2. For children aged 4 through 5 years, a separate carrier,

an integrated child seat, or a child booster seat may be used.

However, the requirement to use a child restraint device under

this subparagraph does not apply when a safety belt is used as

required in s. 316.614(4)(a) and the child:

a. Is being transported gratuitously by an operator who is not

a member of the child’s immediate family;

b. Is being transported in a medical emergency situation

involving the child; or

c. Has a medical condition that necessitates an exception as

evidenced by appropriate documentation from a health care

professional.

(b) The department shall provide notice of the requirement

for child restraint devices, which notice shall accompany the

delivery of each motor vehicle license tag.

(2) As used in this section, the term “motor vehicle” means a

motor vehicle as deﬁ ned in s. 316.003 that is operated on the

roadways, streets, and highways of the state. The term does not

include:

(a) A school bus as deﬁ ned in s. 316.003(45).

(b) A bus used for the transportation of persons for

compensation, other than a bus regularly used to transport

children to or from school, as deﬁ ned in s. 316.615(1)(b), or in

conjunction with school activities.

(d) A truck having a gross vehicle weight rating of more than

26,000 pounds.

(e) A motorcycle, moped, or bicycle.

The plain language of the statute applies to “every operator of a

motor vehicle” and adopts the deﬁ nition of “motor vehicle” in section

316.003, Florida Statutes. Section 316.003(21), Florida Statutes,

deﬁ nes “motor vehicle” as “a self-propelled vehicle not operated upon

rails or guideway, but not including any bicycle, motorized scooter,

electric personal assistive mobility device, swamp buggy, or moped. For

purposes of s. 316.1001, ‘motor vehicle’ has the same meaning as in s.

320.01(1)(a).”

Thus, in general, it would appear that a golf cart falls

within the deﬁ nition of a motor vehicle which would be subject to the

child safety restraint requirements in section 316.613, Florida Statutes.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-07

However, as noted above, there are statutes which speciﬁ cally address

safety equipment required on golf carts.

Moreover, it is worth noting that section 316.614, Florida Statutes,

the “Florida Safety Belt Law,” makes it unlawful for any person to

operate a motor vehicle “unless each passenger and the operator of

the vehicle under the age of 18 years are restrained by a safety belt or

by a child restraint device pursuant to s. 316.613, if applicable[,]” but

exempts from its application “motor vehicles that are not required to be

equipped with safety belts under federal law.”

You indicate that there

is no federal requirement for golf carts to be equipped with safety belts.

An informational pamphlet distributed by the Florida Department of

Highway Safety and Motor Vehicles indicates that conventional golf

carts are not classiﬁ ed as low speed vehicles because they have a top

speed of less than 20 miles per hour; consequently, they are subject only

to state and local requirements regarding safety equipment.

In Attorney General Opinion 2004-60, this ofﬁ ce was asked whether

the operation of a golf cart on the public streets of a golf course community

is subject to the child restraint requirements in section 316.613, Florida

Statutes, and the seat belt requirement in section 316.614, Florida

Statutes. The opinion discussed the general prohibition against the

operation of golf carts on the public streets and highways of this state,

as well as the speciﬁ c exemption allowing such operation when a

municipality has enacted an ordinance in compliance with the statutory

requirements. Relying upon the fact that the Legislature has prescribed

the safety equipment which must be included on a golf cart which is

operated on a public street, which does not include child restraints or

safety belts, the opinion concluded that a municipality could not require

the installation of such equipment on golf carts.

The conclusion in Attorney General Opinion 2004-60 that a golf cart

operating on public streets pursuant to section 316.212, Florida Statutes,

is not required to be outﬁ tted with safety belts or child safety restraints

remains supported by the plain language of the statute prescribing the

safety equipment required on a golf cart and the position of the Florida

Department of Highway Safety and Motor Vehicles. While the general

trafﬁ c laws require safety belts and child safety restraints on motor

vehicles, the more speciﬁ c statutory requirements for golf carts control.

Question 2.

As noted above, section 316.212, Florida Statutes, generally prohibits

the operation of golf carts on the public roads and streets of this state,

but speciﬁ cally authorizes municipalities to designate certain roads for

use by golf carts. A municipality may enact an ordinance relating to

golf cart operation and equipment which is more restrictive than those

enumerated in section 316.212, but it may “apply only to an unlicensed

driver.”

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-07

You request clariﬁ cation of the term “must apply only to an

unlicensed driver.” This language was added when section 316.212,

Florida Statutes, was amended during the 2005 Legislative Session. As

initially proposed, House Bill 1697 (2005 Legislative Session), contained

language which authorized local governments to enact more restrictive

golf cart equipment and operation regulations than state law provides.

The language limiting such an ordinance to an unlicensed driver was by

amendment on the Senate ﬂ oor without discussion.

There is no readily

discernible legislative history indicating any intent behind adding such

a restriction, other than the plain language of the statute.

The plain language of the statute indicates an intent that any

regulations imposed by municipal ordinance on the operation or

equipping of a golf cart on municipal streets is limited to unlicensed

drivers operating golf carts. Where the Legislature has prescribed the

manner in which something may be accomplished, it by implication

prohibits its being done in any other way.

Question 3.

By its terms, section 316.212, Florida Statutes, would appear to

authorize a municipality to adopt an ordinance prohibiting the operation

of a golf cart on public streets by a person who does not have a valid

driver’s license, as such a prohibition would apply only to an unlicensed

driver (the qualifying limitation on the power of a municipality to

enact stricter regulations by ordinance). Section 322.04(1)(e), Florida

Statutes, however, exempts from licensure “[a]ny person operating a

golf cart, as deﬁ ned in s. 320.01, which is operated in accordance with

the provisions of s. 316.212.” The Legislature has clearly authorized

unlicensed drivers to operate golf carts on the highways of this state

when operating pursuant to section 316.212, thereby precluding a

municipality from enacting an ordinance prohibiting the operation of

golf carts by an unlicensed driver.

Question 4.

In light of the conclusion in Question Three, no comment is necessary

as to whether an individual with a suspended or revoked license

is considered an “unlicensed driver” for purposes of prohibiting an

unlicensed individual from operating a golf cart on a public highway.

There may be instances, however, in which a municipality may enact

ordinances applicable to an unlicensed driver which would not otherwise

be applicable to licensed drivers operating a golf cart on public streets

within a municipality.

Section 322.01(17), Florida Statutes, deﬁ nes a “[d]river license” as

“a certiﬁ cate that, subject to all other requirements of law, authorizes

an individual to drive a motor vehicle and denotes an operator’s

license as deﬁ ned in 49 U.S.C. s. 30301.”

No deﬁ nition of “unlicensed

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-07

driver” as that term is used in section 316.212, Florida Statutes, has

been found. For purposes of the Florida motor vehicle licensure laws,

[r]evocation” means “the termination of a licensee’s privilege to drive”

and “[s]uspension” is “the temporary withdrawal of a licensee’s privilege

to drive a motor vehicle.”

By comparing the privilege which is bestowed upon an individual

who possesses a valid driver license, i.e., the authority to drive a motor

vehicle upon the public highways of this state, and the condition imposed

upon an individual whose driver license has been suspended or revoked,

i.e., the temporary or permanent removal of such authority, it is logical

to deduce that a person whose driver license has been suspended or

revoked is treated as an unlicensed driver for purposes of enforcement

of the trafﬁ c laws of this state.

Section 316.001, Fla. Stat.

Section 316.002, Fla. Stat.

Section 316.008(7), Fla. Stat.

Section 316.212(1), Fla. Stat.

Section 316.212(5), Fla. Stat.

Section 316.212(8)(a), Fla. Stat.

Section 320.01, Fla. Stat., provides a deﬁ nition, as used in the Florida

Statutes, except as otherwise provided, the term:

(1) “Motor vehicle” means:

(a) An automobile, motorcycle, truck, trailer, semitrailer,

truck tractor and semitrailer combination, or any other vehicle

operated on the roads of this state, used to transport persons or

property, and propelled by power other than muscular power,

but the term does not include traction engines, road rollers,

special mobile equipment as deﬁ ned in s. 316.003(48), vehicles

that run only upon a track, bicycles, swamp buggies, or mopeds.

See n. 12, infra.

Section 316.614(4)(a), Fla. Stat.

This ofﬁ ce has further reviewed 63 FR 33913 (49 CFR Part 571), dated

June 17, 1998, imposing stricter safety regulations (including safety

belts) on low-speed vehicles (capable of speeds of 20 to 25 miles per hour),

but recognizing and discussing that golf carts incapable of exceeding 20

miles per hour would not be subject to the new regulations.

See https://www.ﬂ hsmv.gov/pdf/mv/lowspeedvehicles.pdf. See also

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-08

Florida Driver’s Handbook (2015), p. 46, listing the safety equipment

required on golf carts at: http://www.ﬂ hsmv.gov/handbooks/

englishdriverhandbook.pdf.

See, e.g., State v. McMillan, 45 So. 882 (Fla. 1908); American Bakeries

Company v. Haines City, 180 So. 524 (Fla. 1938); Adams v. Culver, 111 So.

2d 665 (Fla. 1959) (rule of statutory construction that a statute covering

a particular subject matter controls over a general statutory provision

covering the same in general terms).

Section 316.212(8)(a), Fla. Stat.

Florida Senate, Chamber Action on HB 1697, May 5, 2005 (amendment

to amendment by Senators Webster and King).

See Alsop v. Pierce, 19 So. 2d 799, 805 (Fla. 1944) (where Legislature

prescribes the mode, that mode must be observed; express statutory

direction as to how a thing is to be done is implied prohibition of its being

done in any contrary manner).

See City of Miami Beach v. Rocio Corporation, 404 So. 2d 1066, 1070

(Fla. 3d DCA 1981), petition for review denied, 408 So. 2d 1092 (Fla. 1981)

(municipal ordinance is inferior to state law; if conﬂ ict arises, state law

prevails. Ordinance which supplements statute’s restriction of rights

may coexist with that statute; ordinance which countermands rights

provided by statute must fail).

This ofﬁ ce has neither been provided nor does it surmise the particular

factual circumstances which would be the basis for an ordinance

applicable to an unlicensed driver operating a golf cart.

49 U.S.C. s. 30301(5), deﬁ nes “motor vehicle operator’s license” as “a

license issued by a State authorizing an individual to operate a motor

vehicle on public streets, roads, or highways.”

Section 322.01(36), Fla. Stat.

Section 322.01(40), Fla. Stat.

See s. 322.34, Fla. Stat., making it a moving violation for a person to

drive a vehicle upon the highways of this state while his or her license is

suspended, revoked, canceled, or disqualiﬁ ed.

AGO 16-08 – August 2, 2016

PUBLIC FUNDS – ADMINISTRATIVE AGENCIES –

TRANSPORTATION

EXPENDITURE OF PUBLIC FUNDS FOR REFRESHMENTS

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-08

To: Mr. Paul R. Gougelman, General Counsel, Florida Metropolitan

Planning Organization Advisory Council

QUESTION:

Does the MPOAC have the authority to purchase refreshments

for meetings, workshops, and seminars with funds received as a

federal grant?

SUMMARY:

The MPOAC is not authorized by state law to purchase

refreshments for meetings, workshops, and seminars with funds

it has received from a federal grant.

While you have posed three separate questions using the terms

“necessary and implied power,” as well as “express power” and whether

supremacy of federal law controls, this ofﬁ ce will address only whether

the council has the authority under state law to pay for such expenses.

Section 339.175(11), Florida Statutes, creates the Metropolitan

Planning Organization Advisory Council to “augment, and not supplant,

the role of the individual M.P.O.’s in the cooperative transportation

planning process…”

Section 339.175(11)(c), Florida Statutes,

enumerates the powers and duties of the MPOAC to:

1. Enter into contracts with individuals, private corporations,

and public agencies.

2. Acquire, own, operate, maintain, sell, or lease personal

property essential for the conduct of business.

3. Accept funds, grants, assistance, gifts, or bequests from

private, local, state, or federal sources.

4. Establish bylaws by action of its governing board providing

procedural rules to guide its proceedings and consideration

of matters before the council, or, alternatively, adopt rules

pursuant to ss. 120.536(1) and 120.54 to implement provisions

of law conferring powers or duties upon it.

5. Assist M.P.O.’s in carrying out the urbanized area

transportation planning process by serving as the principal

forum for collective policy discussion pursuant to law.

6. Serve as a clearinghouse for review and comment by

M.P.O.’s on the Florida Transportation Plan and on other

issues required to comply with federal or state law in carrying

out the urbanized area transportation and systematic planning

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-08

processes instituted pursuant to s. 339.155.

7. Employ an executive director and such other staff as

necessary to perform adequately the functions of the council,

within budgetary limitations. The executive director and staff

are exempt from part II of chapter 110 and serve at the direction

and control of the council. The council is assigned to the Ofﬁ ce

of the Secretary of the Department of Transportation for ﬁ scal

and accountability purposes, but it shall otherwise function

independently of the control and direction of the department.

8. Adopt an agency strategic plan that prioritizes steps the

agency will take to carry out its mission within the context of

the state comprehensive plan and any other statutory mandates

and directives.

As a statutorily created entity, the council 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.

Moreover, it is

well settled that any reasonable doubt as to the lawful existence of a

particular power sought to be exercised must be resolved against the

exercise thereof.

You state that the council has been advised by the Florida Department

of Transportation that reimbursement for the cost of refreshments

would likely not be acceptable. This advice supposedly originated from

the Department of Financial Services (DFS) and was grounded in the

“Reference Guide for State Expenditures” (guide), a publication prepared

by the DFS Bureau of Auditing.

The guide “provide[s] state agencies

guidance regarding the requirements applicable to the disbursement of

funds from the State Treasury, regardless of the payment methods[.]”

Based upon a now repealed rule of administrative procedure, the guide

provides a list of prohibited expenditures, unless such are expressly

provided by law, which includes “[r]efreshments such as coffee and

doughnuts.”

While the administrative rule which automatically prohibited the

purchase of refreshments with state funds has been repealed, you

state that the council has been informed that the prohibition against

purchasing refreshments with state funds remains intact based upon

Attorney General Opinion 78-101. In that opinion, this ofﬁ ce was asked

whether a county property appraiser could expend public funds for the

development and distribution of informational material explaining the

operations of the appraiser’s ofﬁ ce. Setting forth the basic requirement

that a public ofﬁ cer must have the express or necessarily implied

statutory authority to expend public funds for a particular purpose, the

opinion found that a property appraiser’s statutory duties and powers

did not include the development and distribution of informational

materials about the appraiser’s ofﬁ ce. In contrast, the opinion cited

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-08

several statutes expressly authorizing agencies to prepare materials for

informing the public.

In a more recent opinion, this ofﬁ ce considered whether a supervisor

of elections could use county funds to purchase a membership in local

chambers of commerce and to purchase tickets to luncheons and

banquets hosted by community organizations such as a chamber. After

discussing the supervisor’s express statutory authority to work with

the business and local community to develop public-private programs

to ensure the recruitment of skilled inspectors and clerks, the opinion

concluded that the supervisor of elections was authorized based upon

that express statutory authority to expend county funds to purchase

memberships in local chambers of commerce and to pay related expenses

for attendance to meetings of the chambers.

A review of the powers and duties of the MPOAC enumerated in

section 339.175(11)(c), Florida Statutes, does not reveal an express

authority to purchase refreshments for the meetings or seminars of

the council, nor does the purchase of refreshments appear necessary to

carry out the council’s express powers.

It is my opinion, therefore, that

state law does not authorize the expenditure of funds by the MPOAC for

refreshments at its meetings, seminars, or conferences.

This ofﬁ ce does not interpret federal law and, therefore, offers no

comment on the application of such in this instance. Questions involving

the application of federal law or regulations would be more appropriately

addressed to the federal agency administering the funds. Moreover,

whether 2 CFR s. 200.432, recognizing that refreshments may be provided

by a non-Federal entity, sponsoring or hosting a conference whose

primary purpose is the dissemination of technical information beyond

the non-Federal entity, serves as sufﬁ cient authority for the purchase

of refreshments by the MPOAC at its meetings is a determination which

must be made by the Florida Department of Financial Services.

Section 339.175(11)(a), Fla. Stat.

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

(Fla. 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 04-26 (2004).

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

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-09

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).

Reference Guide for State Expenditures, Division of Accounting and

Auditing, Bureau of Auditing, Department of Financial Services (updated

2011).

Id at p. 7.

Reference Guide, p. 45, citing Rule 69I-40.103, F.A.C. (repealed

10/14/2013). See State of Florida, Department of Financial Services v.

Peter R. Brown Construction, Inc., 108 So. 3d 723 (Fla. 1st DCA 2013)

(Rule 69I-40.103, F.A.C., restricting expenditures for decorative items

was an invalid exercise of delegated legislative authority).

See Op. Att’y Gen. Fla. 02-16 (2002).

It should be noted that s. 339.175(11)(b), Fla. Stat., provides: “Members

of the council do not receive any compensation for their services, but may

be reimbursed from funds made available to council members for travel

and per diem expenses incurred in the performance of their council duties

as provided in s. 112.061.”

AGO 16-09 – August 2, 2016

CHARTER SCHOOLS – MUNICIPALITIES – SPECIAL

ASSESSMENT – EXEMPTION

WHETHER THE CITY MAY LEVY A SPECIAL ASSESSMENT

AGAINST THE PROPERTY OF A CHARTER SCHOOL

To: Ms. Victoria Méndez, City Attorney, City of Miami

QUESTION:

May a municipality levy a special assessment against the

property of a charter school under Chapter 170 of the Florida

Statutes?

SUMMARY:

Section 1002.33(18)(d), Florida Statutes, speciﬁ cally exempts

charter schools from assessments for special beneﬁ ts; hence, the

city may not levy a special assessment against the school.

You state that the City of Miami proposes to levy a special assessment

against the property of a charter school. Section 1002.33(18)(d), Florida

Statutes, provides:

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16-09

(d) Charter school facilities are exempt from assessments of

fees for building permits, except as provided in s. 553.80; fees

for building and occupational licenses; impact fees or exactions;

service availability fees; and assessments for special beneﬁ ts.

(e.s.)

You contend that section 170.201(2), Florida Statutes, contains an

exception to the general rule stated in section 1002.33(18)(d), Florida

Statutes. Section 170.201(2), Florida Statutes, provides, in pertinent

part:

Property owned or occupied by a religious institution and

used as a place of worship or education; by a public or private

elementary, middle, or high school; or by a governmentally

ﬁ nanced, insured, or subsidized housing facility that is used

primarily for persons who are elderly or disabled shall be

exempt from any special assessment levied by a municipality to

fund any service if the municipality so desires. (e.s.)

You suggest that the ﬁ nal phrase in section 170.201(2) – “if a

municipality so desires” – gives municipalities the discretion to choose

whether to recognize an exemption from a special assessment for a

charter school.

In 2006, the Fifth District Court of Appeal considered whether a

charter school was subject to a special assessment levied by a community

development district located in Osceola County, in Remington

Community Development District v. Education Foundation of Osceola.

The charter school claimed it was exempt from special assessments

based upon a statute in the Education Code,

but the court pointed out

that such provision, as well as most of the statutes in the Code, did

not apply to charter schools.

The court considered the provision that

you rely upon – section 170.201(2), Florida Statutes – in a footnote,

observing that it was “not a model of legislative clarity,” and that it

appeared to give the levying authority the discretion whether to impose

an assessment against school property.

This is consistent with your

interpretation.

The court concluded that a charter school was not exempt from

special assessments, because “the legislature has failed to create a

statutory exemption for charter schools.”

The court noted that the

Legislature had expressly exempted charter schools from being subject

to ad valorem taxation in section 1002.33(18)(c), Florida Statutes, and

from impact fees and service availability fees in section 1002.33(18)

(d), Florida Statutes. Based upon this, the court observed: “[H]ad

the legislature intended to create a similar exemption from special

assessments, it would have done so expressly.”

The Legislature thereafter did create an express exemption for charter

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-09

schools when it amended section 1002.33(18)(d), Florida Statutes, in

2007, to add that charter school facilities are exempt from “assessments

for special beneﬁ ts.”

Any ambiguity or possible conﬂ ict between sections 1002.33(18)

(d) and 170.201(2), Florida Statutes, is resolved by general rules of

statutory interpretation. The Legislature is presumed to intend that

laws will operate harmoniously, such that a speciﬁ c statute addressing

a particular subject will control over a more general statute addressing

the same subject.

“[T]he speciﬁ c statute is seen as an exception to

the general statute.”

In addition, in the event of inconsistency

between statutes, “the last expression of legislative will prevails.”

Section 170.201(2), Florida Statutes, is a general provision addressing

exemptions from assessments for a variety of public facilities “if the

municipality so desires,” and was enacted in 1996. In contrast, section

1002.33(18)(d), Florida Statutes, addresses only charter schools,

provides an express and deﬁ nite exemption, and was added in 2007.

Therefore, it is my opinion that section 1002.33(18)(d), Florida

Statutes, controls and prohibits the City of Miami from levying a special

assessment against a charter school.

Section 1002.33(1), Fla. Stat., provides that “[a]ll charter schools in

Florida are public schools.”

941 So. 2d 15 (Fla. 5th DCA 2006).

Section 1013.51(1)(a), Fla. Stat.

Section 1002.33(16)(a), Fla. Stat., exempts charter schools from all

the provisions in Chs. 1000 through 1013, Fla. Stat., except for those

enumerated in the statute.

941 So. 2d at 17 n.1.

Id. at 16.

Id. at 17 n.3. On motion for rehearing, the Fifth District granted

the charter school’s motion to certify two questions of great public

importance, one of which asked: “Are charter schools, which are deemed

by statute to be public schools, exempt from special assessments?” Id. at

18. The Florida Supreme Court denied review. Educ. Found. of Osceola

v. Remington Comty. Dev. District, 946 So. 2d 1069 (Fla. 2006).

In the session law that contained the assessment amendment, the

Legislature singled out the provision amending paragraph (18)(d) to

apply retroactively to July 1, 1996, ten years earlier. Ch. 2007-234, s. 10,

Laws of Fla.

See Palm Beach Canvassing Bd. v. Harris, 772 So. 2d 1273, 1287 (Fla.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

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2000); McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994).

Stevens v. State, 127 So. 3d 668, 669-70 (Fla. 1st DCA 2013).

Askew v. Schuster, 331 So. 2d 297, 300 (Fla. 1976). See also In re Sepe,

421 So. 2d 27, 28 (Fla. 3d DCA 1982).

AGO 16-10 – August 2, 2016

SPECIAL DISTRICTS – ASSESSMENTS – REFERENDUM

WHETHER SPECIAL DISTRICT MUST HOLD REFERENDUM

BEFORE LEVYING NON-AD VALOREM ASSESSMENT

To: Ms. Mary M. Viator, Counsel for Indian Trail Improvement District

QUESTION:

Does Chapter 189 or 298, Florida Statutes, require a referendum

in order for the Indian Trail Improvement District to levy

non-ad valorem assessments to maintain park improvements

constructed by the district using no non-ad valorem assessments

and located on county-owned land leased to the district at no

cost?

SUMMARY:

Chapters 189 and 298, Florida Statutes, do not require

a referendum in order for the Indian Trail Improvement

District to levy non-ad valorem assessments to maintain park

improvements constructed by the district using no non-ad

valorem assessments and located on county-owned land leased

to the district at no cost.

The Indian Trail Water Control District (the district) is an independent

special district operating in Palm Beach County, Florida. The district

operates in accordance with its enabling legislation, Chapter 2002-330,

Laws of Florida, and applicable provisions of Chapters 189 and 298,

Florida Statutes.

According to information you have supplied to this ofﬁ ce, in 2001,

Palm Beach County leased certain land to the district under a long term

lease for use as a district park. The property is leased to the district at

no annual cost. The district proposes to construct park improvements

on the leased site using no non-ad valorem assessments. The park

is currently maintained for the beneﬁ t of district residents. After

construction is complete, special beneﬁ t non-ad valorem assessments

will be levied against taxable real property within the district for park

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16-10

maintenance costs.

Chapter 2002-330, Laws of Florida, codiﬁ es the previously enacted

special acts relating to the Indian Trail Improvement District.

The

codiﬁ cation re-creates the district and re-creates and reenacts the

district charter. The district’s charter, section 3 et seq., Chapter 2002-

330, Laws of Florida, provides that the powers of the district include

“to construct and maintain recreation areas and facilities, including the

authority to provide for the construction, operation, and maintenance of

such recreation areas and facilities; provide recreation and playground

equipment; . . . and provide any other programs and elements of

recreation areas and facilities[.]”

Chapter 2002-330, Laws of Florida, also “preserve[s] all district

authority, including the authority to annually assess and levy taxes

or non-ad valorem assessments against all assessable property in the

district[.]”

The powers, functions, and duties of the district regarding

non-ad valorem assessments and other revenue-raising capabilities

“shall be as set forth in chapters 189, 197, and 298, Florida Statutes,

this act, or any other applicable general or special law, as they may be

amended from time to time.”

The charter requires that non-ad valorem

assessments be collected as provided in chapter 197 and 298, Florida

Statutes.

As a statutorily created entity, the district may only exercise such

powers as have been expressly granted by statute or ordinance or

must necessarily be exercised in order to carry out an express power.

Unlike counties and municipalities, which have been granted home

rule powers, water control districts possess no inherent or home rule

powers. Created by statute for speciﬁ c limited purposes, such districts

may exercise only those powers and authority as have been granted by

law.

Thus, you ask whether Chapters 189 and 298, Florida Statutes,

require the district to conduct a referendum to approve the levy of any

special assessments.

Chapter 298, Florida Statutes, requires that special districts subject

to the terms of the chapter implement district infrastructure and works

projects pursuant to a water control plan.

The notice, hearing, and

ﬁ nal adoption of any amendment to a water control plan must comply

with the provisions of Chapter 298, Florida Statutes.

You advise that

the district’s existing Water Control Plan will be amended as required

by section 298.301, Florida Statutes, to incorporate the county lease

land and improvements.

Before adopting a water district plan amendment, the statutes

require that the board of supervisors of the district adopt a resolution

to consider the proposed plan amendment and hold a public hearing on

the plan amendment. Section 298.301(2), Florida Statutes, provides the

form for the public notice to be given and prescribes the length of time

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-10

such notice must be published.

At the conclusion of the public hearing,

the board of supervisors may determine to proceed with the process,

for a plan amendment and direct the district engineer to prepare an

engineer’s report outlining the property involved, determining beneﬁ ts

and damages, and estimating the cost of implementing the improvements

associated with the plan amendment. A ﬁ nal hearing on approval of the

proposed plan amendment shall be held at a regularly-scheduled board

of supervisors meeting 25 - 60 days after the last scheduled publication

of the notice of ﬁ ling the engineer’s report with the district secretary.

After approval of the engineer’s report by the board of supervisors,

and the proposed plan amendment has been ﬁ nally adopted, the board

of supervisors is authorized to levy a non-ad valorem assessment on all

lands in the district to which beneﬁ ts have been assessed “to pay the

costs of the completion of the proposed works and improvements, as

shown in the adopted plan or plan amendment and in carrying out the

objectives of the district[.]”

The district is also authorized to levy a

maintenance assessment:

Under s. 298.54, the board of supervisors may also levy a

maintenance assessment on all lands in the district to which

beneﬁ ts have been assessed as may be necessary to operate

and maintain the district works and activities and to defray

the current expenses of the district.

Section 298.54, Florida Statutes, provides for a “maintenance tax”

to maintain and preserve the improvements made pursuant to this

chapter and to repair and restore the same.

Nothing in the statutes discussed above imposes a referendum

requirement on the district for the levy of non-ad valorem assessments

to maintain the park improvements outlined in your request.

You also ask whether provisions of Chapter 189, Florida Statutes (the

“Uniform Special District Accountability Act”),

impose a referendum

requirement on the district for the levy of non-ad valorem assessments

to maintain park improvements. As an independent special district, the

Indian Trail Improvement District is subject to the provisions of Part

III, Chapter 189, Florida Statutes, and to the general provisions in Part

I of that chapter. Section 189.03(3), Florida Statutes, makes it clear

that the Legislature intended, with the adoption of Part III of Chapter

189, to “provide by general law for the uniform operation, exercise of

power, and procedure for termination of any such independent special

district.” As provided in the act, the charter of an independent special

district must address:

The powers, functions, and duties of the district regarding

ad valorem taxation, bond issuance, other revenue-raising

capabilities, budget preparation and approval, liens and

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16-10

foreclosure of liens, use of tax deeds and tax certiﬁ cates as

appropriate for non-ad valorem assessments, and contractual

agreements.

As discussed herein, the charter for the Indian Trail Improvement

District includes no requirement that the levy of non-ad valorem

assessments be subject to a referendum and nothing in either Part I or

Part III, Chapter 189, Florida Statutes, establishes such a requirement.

In sum, it is my opinion that Chapters 189 and 298, Florida

Statutes, do not require a referendum in order for the Indian Trail

Improvement District to levy non-ad valorem assessments to maintain

park improvements constructed by the district using no non-ad valorem

assessments and located on county-owned land leased to the district at

no cost.

Pursuant to s. 189.019, Fla. Stat., each special district must codify its

special acts into a single act for reenactment by the Legislature by Dec. 1,

2004.

Section 3, s. 5(1), Ch. 2002-330, Laws of Fla.

Section 1, supra n.2.

Section 3, s. 1(2), id.

Section 3, s. 1(13), supra n.2; Ch. 197, Fla. Stat., deals with tax

collections, sales, and liens, and provides, in s. 197.3632, Fla. Stat., the

method for imposing and collecting non-ad valorem taxes. Nothing in ss.

197.3631, 197.3632, or 197.3635, Fla. Stat., dealing with non-ad valorem

taxes requires a referendum.

See, e.g., Op. Att’y Gen. Fla. 90 63 (1990) (in the absence of a statute

authorizing the recall of a supervisor of a water control district, the

landowners of such a district are not authorized to establish procedures

for the recall of a supervisor); Op. Att’y Gen. Fla. 81 17 (1981). And see

Forbes Pioneer Boat Line v. Bd. of Comm’rs of Everglades Drainage Dist.,

82 So. 346 (Fla. 1919).

Section 298.301(1), Fla. Stat.

Id.

Section 298.301(2), Fla. Stat.

Id.

Section 298.305(1), Fla. Stat.

Id.

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16-11

See s. 189.01, Fla. Stat., providing the title for the act.

Section 189.031(3)(b), Fla. Stat.

AGO 16-11 – August 2, 2016

JUVENILE CURFEWS – MUNICIPALITIES – ORDINANCES

WHETHER MUNICIPALITY IS AUTHORIZED TO ALTER TERMS

OF STATUTORY JUVENILE CURFEW AS ADOPTED IN AN

ORDINANCE

To: Mr. Jeb T. Branham, Town Attorney, Town of Baldwin

QUESTION:

Is a municipality authorized to adopt by ordinance the terms

of the state juvenile curfew law described in sections 877.20 -

877.25, Florida Statutes, and to subsequently make changes, by

ordinance, in the terms of the statutes for local application?

SUMMARY:

If a municipality adopts an ordinance that incorporates by

reference the provisions of sections 877.20 - 877.24, Florida

Statutes, it may not alter by ordinance the statutory terms

expressed in the statutes. However, section 877.25, Florida

Statutes, does not preclude a municipality from adopting an

independently crafted juvenile curfew ordinance. Any such

locally crafted language must comport with federal and state

constitutional law relating to juvenile curfews.

According to information supplied to this ofﬁ ce, the Town of Baldwin

has adopted the state curfew imposed by section 877.20, Florida Statutes,

et seq., without any changes to the statutory language.

A number

of local governments nearby have adopted curfew ordinances which

include individually-crafted provisions relating to the age of minors

subject to the curfew. You ask whether the language of section 877.25,

Florida Statutes, which states that local governments may “provide

restrictions more stringent or less stringent than the curfew imposed

under section 877.22” would allow the Town of Baldwin to modify by

ordinance the statutory language contained in section 877.22, Florida

Statutes, to redeﬁ ne the term “minor” which the Town has adopted in

its curfew ordinance. As discussed below, it is my opinion that the Town

may adopt the provisions of section 877.20 - 877.25, Florida Statutes,

but has no authority to alter the language of the statute by ordinance to

redeﬁ ne the term “minor.” If the Town of Baldwin decides to draft its

own juvenile curfew ordinance it may develop the terms of its ordinance

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-11

but should be cognizant of federal and state constitutional law relating

to juvenile curfews.

Sections 877.20 - 877.25, Florida Statutes, describe a template for

local juvenile curfew ordinances. It was the intent of the Legislature, in

adopting these provisions:

to protect minors in this state from harm and victimization,

to promote the safety and well-being of minors in this state, to

reduce the crime and violence committed by minors in this state,

and to provide counties and municipalities with the option of

adopting a local juvenile curfew ordinance by incorporating by

reference the provisions of ss. 877.20-877.25.

As used in the act, the term “[m]inor” is deﬁ ned as “any person under

16 years of age.”

The act prohibits minors from being in public places and establishments

during certain hours

and prescribes penalties

and procedures6 for

violations of the curfew provisions. The act does not apply in a county

or a municipality unless the governing body of the local government

adopts a local ordinance:

Sections 877.20-877.24 do not apply in a county or municipality

unless the governing body of the county or municipality adopts

an ordinance that incorporates by reference the provisions of ss.

877.20-877.24. Sections 877.20-877.24 do not preclude county

or municipal ordinances regulating the presence of minors in

public places and establishments which provide restrictions

more stringent or less stringent than the curfew imposed under

s. 877.22.7

Thus, it appears that the juvenile curfew ordinance provided in

sections 877.20 - 877.24, Florida Statutes, is not preemptive; rather, the

act recognizes that a county or municipality may regulate the presence

of minors more strictly, or less strictly, than those provisions of sections

877.20 - 877.24, Florida Statutes. However, if, as the Town of Baldwin

has done, a county or municipality adopts the statutory scheme as set out

in the statutes, it is my opinion that the Town is bound by the language

of those statutory provisions. The statute provides no ﬂ exibility to alter

the framework set forth in sections 877.20 - 877.24, Florida Statutes,

if the Town has adopted that framework.

Rather, the statute appears

to authorize local governments to craft juvenile curfew ordinances with

terms either more or less stringent which may be adopted independently

of sections 877.20 - 877.24, Florida Statutes.

In sum, it is my opinion that if a municipality adopts an ordinance

that incorporates by reference the provisions of sections 877.20 - 877.24,

Florida Statutes, it may not alter by ordinance the statutory terms

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-11

expressed in the statutes. Section 877.25, Florida Statutes, does not,

however, preclude a municipality from adopting an independently

crafted juvenile curfew ordinance, but any such locally-crafted language

must comport with federal and state constitutional law relating to

juvenile curfews.

The Baldwin, Florida, Code of Ordinances has adopted the state statutes

establishing a curfew for minors in the following terms: “Pursuant to

Florida Statutes s. 877.25, the provisions of Florida Statutes ss. 877.20 -

877.24 are hereby adopted by reference as part of the Code of the Town of

Baldwin.” The provisions of the state statutes are not set out at length in

the code.

Section 877.20, Fla. Stat.

Section 877.21(3), Fla. Stat.

Section 877.22(1)(a), Fla. Stat., prohibits minors from being or

remaining in a public place or establishment between 11:00 p.m. and

5:00 a.m. of the following day, Sunday through Thursday, except for legal

holidays; (b) prohibits minors from being or remaining in a public place or

establishment between 12:01 a.m. and 6:00 a.m. on Saturdays, Sundays,

or legal holidays.

Penalties include written warnings for a ﬁ rst violation and a ﬁ ne of

$50.00 and being charged with a civil infraction for those already having

received a prior written warning. Section 877.22(3), Fla. Stat. I note that

this act came into the statutes in Ch. 94-209, Laws of Fla., which was a

major juvenile crime bill.

Section 877.22(4), Fla. Stat., states that a minor violating a curfew and

taken into custody must be transported to a police station or other facility

conducting a curfew program and requires that the parents of the minor

be contacted to take custody of the minor.

Section 877.25, Fla. Stat.

While municipalities in Florida do have home rule powers, Article

I, section 18 of the Florida Constitution speciﬁ cally provides that the

imposition of penalties may only be accomplished “as provided by law.”

This ofﬁ ce has concluded that the term “by law” means an act of the

Legislature and does not include municipal ordinances. See Ops. Att’y

Gen. Fla. 2009-53 and 84-39; Advisory Opinion to Governor, 22 So. 2d 398

(Fla. 1945); Broward County v. Plantation Imports, Inc., 419 So. 2d 1145

(Fla. 4th DCA 1982).

See, for example, State v. J.P. v. T.M., 907 So. 2d 1101 (Fla. 2005)

(“Because the juveniles’ fundamental rights to privacy and freedom of

movement are burdened by the curfew ordinances, the cities must have

a compelling governmental interest in regulating the activities of minors

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-12

during the hours of the curfew and the ordinances must be narrowly

tailored to accomplish their goals by the least intrusive means available.”).

AGO 16-12 – October 5, 2016

MUNICIPALITIES – VACATION RENTALS – PREEMPTION –

ZONING

WHETHER THE CITY COULD LIMIT VACATION RENTALS

THROUGH A PROPOSED ORDINANCE (1) IMPOSING DISTANCE

SEPARATION REQUIREMENTS OR (2) LIMITING THE

PERCENTAGE OR NUMBER OF VACATION RENTALS, IN LIGHT

OF THE PREEMPTION LANGUAGE REGARDING VACATION

RENTALS IN S. 509.032(7), FLA. STAT.

To: Mr. Kerry L. Ezrol, City Attorney, Ms. Farah L. Nerette, Assistant

City Attorney, City of Wilton Manors

QUESTION:

Does section 509.032(7), Florida Statutes, prohibit the city from:

(A) Implementing distance separation requirements between

vacation rentals; or (B) Limiting the percentage or number of

vacation rentals on city streets or in city neighborhoods?

SUMMARY:

Section 509.032(7)(b), Florida Statutes, allows some regulation

of vacation rentals, but prevents local government from enacting

a law, ordinance, or regulation that prohibits vacation rentals.

Therefore, the city may not impose spacing or proportional

regulations that would have the effect of preventing eligible

housing as deﬁ ned in section 509.242, Florida Statutes, from

being used as a vacation rental.

You state that Wilton Manors is considering enacting a zoning

ordinance that would set distance separation requirements between

vacation rentals or would limit the percentage or number of vacation

rentals on city streets or in city neighborhoods. You represent that

the ordinance would implement various health, safety, and welfare

goals, such as reducing vehicle trafﬁ c; reducing the need for additional

parking; reducing noise detrimental to surrounding residential uses;

reducing the need for additional police, ﬁ re, emergency services,

utilities, and neighborhood watch programs; and maintaining the

residential character of neighborhoods. Although municipalities are

permitted to enact zoning ordinances to accomplish such legitimate

goals, an ordinance may not conﬂ ict with a controlling provision of

state law.

You believe that the proposed ordinance would not forbid

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-12

vacation rentals and thus would not run afoul of section 509.032(7)(b),

Florida Statutes, which states that a local government may not enact

an ordinance that “prohibit[s] vacation rentals.” You have not provided

this ofﬁ ce with the language of your proposed ordinance (nor would this

ofﬁ ce interpret such an ordinance if you had), thus, my comments must

be general in nature.

To answer your question, it is necessary to review the Legislature’s

treatment of preemption in relation to vacation rentals in section

509.032, Florida Statutes.

Part I of Chapter 509, Florida Statutes,

contains laws affecting public lodging and public food service

establishments. In 1993, the Legislature amended section 509.032,

Florida Statutes, adding paragraph (7) to preempt all regulation of

public lodging

and public food service establishments to the state. The

provision stated, in pertinent part: “The regulation and inspection of

public lodging establishments and public food service establishments …

are preempted to the state.”

In 2011, the Legislature combined two types of public lodgings –

“resort condominiums” and “resort dwellings” – under the new term

“vacation rentals,” and added a provision to speciﬁ cally address an

issue regarding vacation-rental regulation. According to the ﬁ nal staff

analysis:

The regulation of public lodging establishments is preempted

to the state. Local governments can conduct inspections of

public lodging establishments for compliance with the Florida

Building Code and the Florida Fire Prevention Code.

However,

some local governments have been prohibiting or restricting

transient resort condominiums and dwellings by ordinance.

To address this issue, the Legislature added a new provision, (7)(b),

which stated:

(b) A local law, ordinance, or regulation may not restrict the

use of vacation rentals, prohibit vacation rentals, or regulate

vacation rentals based solely on their classiﬁ cation, use, or

occupancy. This paragraph does not apply to any local law,

ordinance, or regulation adopted on or before June 1, 2011.

In 2014, the Legislature amended paragraph (7)(b), “revising the

permitted scope of local laws, ordinances, and regulations regarding

vacation rentals.”

The provision now allows limited new regulation

subject to the following limitations:

(b) A local law, ordinance, or regulation may not prohibit

vacation rentals or regulate the duration or frequency of rental

of vacation rentals. This paragraph does not apply to any local

law, ordinance, or regulation adopted on or before June 1, 2011.

BIENNIAL REPORT OF THE ATTORNEY GENERAL

16-12

The ﬁ nal staff analysis for the legislation stated: “The bill removes

the total preemption to the state for the regulation of vacation rentals,

and permits local governments to regulate vacation rentals, provided

those regulations do not prohibit vacation rentals or restrict the

duration or frequency of vacation rentals.”

That same year, the City of Wilton Manors asked this ofﬁ ce whether

the 2014 amendment permitted the city to use zoning ordinances to

regulate the location of vacation rentals. In Attorney General Opinion

2014-09, this ofﬁ ce concluded:

[W]hile a local government may regulate vacation rentals, it

may not enact a local law, ordinance, or regulation which would

operate to prohibit vacation rentals. To the extent a zoning

ordinance addresses vacation rentals in an attempt to prohibit

them in a particular area where residences are otherwise

allowed, it would appear that a local government would have

exceeded the regulatory authority granted in section 509.032(7)

(b), Florida Statutes. (e.s.)

Section 509.242(1)(c), Florida Statutes, deﬁ nes “vacation rental” as

“any unit or group of units in a condominium or cooperative or any

individually or collectively owned single-family, two-family, three-

family, or four-family house or dwelling unit that is also a transient

public lodging establishment but that is not a timeshare project.”

Section 509.013(4)(a)1., Florida Statutes, deﬁ nes “transient public

lodging establishment” as “any unit, group of units, dwelling, building,

or group of buildings within a single complex of buildings which is

rented to guests more than three times in a calendar year for periods

of less than 30 days or 1 calendar month, whichever is less, or which

is advertised or held out to the public as a place regularly rented to

guests.”

It appears from these deﬁ nitions that any unit, group of units, or

house as enumerated in section 509.242(1)(c), Florida Statutes, is

eligible to be used as a transient public lodging establishment and,

hence, a vacation rental. There are no statutory provisions that impose

restrictions against owners from offering eligible housing as vacation

rentals. Nor have you identiﬁ ed any municipal law, ordinance, or

regulation enacted prior to the grandfathering date in the statute,

June 1, 2011, that restricted any such housing from being offered as

a vacation rental in Wilton Manors.

An ordinance requiring certain

distances between vacation rentals or limiting their numbers in areas

within the city could result in a prohibition against using eligible

units as vacation rentals when other existing units have already

satisﬁ ed the spacing or percentage formulae. Although the proposed

ordinance would not absolutely forbid vacation rentals in the City of

Wilton Manors, a distance separation requirement and a numerical

or percentage limitation have the express purpose of prohibiting units

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above a certain threshold from being used as vacation rentals, which is

contrary to section 509.032(7)(b) , Florida Statutes.

When there is any

doubt as to whether a municipal ordinance may impair the operation of

a statute, the doubt must be resolved in favor of the statute and against

the ordinance.

In Moore v. Thompson,

the Florida Supreme Court discussed the

propriety of legislation that prohibited a class of businesses from

operating, in the guise of regulating it. A blue law made it unlawful for

businesses to sell motor vehicles on Sunday and legal holidays. Although

the Court acknowledged that the Legislature had clear statutory

authority to regulate automobile dealerships, this law exceeded such

authority.

While the act is one purporting to regulate this particular

business, it is much more than a regulation. Chapter 318, 319

and 320, Florida Statutes, F.S.A., are illustrations of regulations

of a particular industry while the object of this act is—not to

regulate—but to prohibit such business on designated days.

The power to regulate does not encompass the power to prohibit.

(e.s.)

The Court concluded that the state had failed to provide a valid and

substantial reason to single out automobile dealerships, and ruled

that the law was unconstitutional. The Court cited an earlier case

involving legislation in 1938 requiring all persons conducting auctions

to post a bond of $2,000.00 and pay a license tax of $1,000.00 every

ﬁ fteen days, regardless of the character or amount of the sale.

The

Court had concluded in that case that the law was improper because

the unreasonably high fees made it prohibitive rather than regulative.

“Such an imposition amounts to a prohibition of large numbers from

engaging in a legitimate business and is beyond all the necessities for

the legislation.”

Similarly, the proposed Wilton Manors ordinance

might prohibit certain vacation rentals, when section 509.032(7) only

permits local governments to regulate them.

The two circuit court orders you provided to this ofﬁ ce do not support

the proposed Wilton Manors ordinance. In one case, the Flagler

County Circuit Court was asked to consider an ordinance prescribing

the documentation that must be provided to the county for short-term

vacation rentals, and a maximum occupancy limit for all vacation

rentals.

In the other, the Manatee County Circuit Court considered an

ordinance setting a maximum occupancy limit for each vacation rental

unit in the City of Ana Maria.

The court in each case determined

that the ordinance at issue did not prohibit vacation rentals or regulate

their duration or frequency in violation of section 509.032(7)(b), Florida

Statutes. Those ordinances are distinguishable from what Wilton

Manors proposes, because they merely added regulatory requirements

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for existing and new vacation rentals and did not limit the number of

vacation rentals that would be allowed in a geographic area.

Indeed, in the ﬁ nal staff analysis of the 2014 legislation, the section

entitled “Effect of the Bill” stated:

The bill permits local governments to create regulation that

distinguishes vacation rentals from other residential property.

In the past [prior to June 1, 2011], local government regulations

have included noise, parking, registration, and signage

requirements for vacation rentals.

These matters and those addressed in the circuit court cases you cited

are the kinds of regulations that are now permitted under the 2014

amendment to paragraph (7)(b) as exceptions to state preemption.

Accordingly, to the extent that the ordinance you are considering

could have the effect of prohibiting a statutorily-eligible housing unit

from being used as a vacation rental, it is my opinion that the City of

Wilton Manors would be exceeding the regulatory authority granted in

section 509.032(7)(b), Florida Statutes.

See City of Hollywood v. Mulligan, 934 So. 2d 1238, 1246-47 (Fla.

2006); City of Casselberry v. Orange County Police Benevolent Ass’n, 482

So. 2d 336, 340 (Fla. 1986).

See Massey v. David, 979 So. 2d 931, 942 (Fla. 2008) (legislative history

can be an “invaluable tool” in determining the meaning of statutory

language); Kasischke v. State, 991, So. 2d 803, 810 (Fla. 2008) (although

staff analyses do not determine legislative intent, they provide “one

touchstone of the collective legislative will”).

Public lodging establishments included hotels, motels, resort

condominiums, nontransient and transient apartments, rooming houses,

resort dwellings, and bed and breakfast inns. Section 509.242, Fla. Stat.

(2010).

Section 2, Ch. 93-53, Laws of Fla.

The Legislature had amended s. 509.032, Fla. Stat., in 2000, and added

to paragraph (7): “This subsection does not preempt the authority of a

local government or local enforcement district to conduct inspections

of public lodging and public food service establishments for compliance

with the Florida Building Code and the Florida Fire Prevention Code,

pursuant to ss. 553.80 and 633.022.” Section 47, Ch. 2000-141, Laws of

Fla.

House of Representatives Final Bill Analysis, CS/CS/CS/HB 883, dated

June 28, 2011.

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See s. 2, Ch. 2011-119, Laws of Fla.

See Preamble, Ch. 2014-71, Laws of Fla.

House of Representatives Final Bill Analysis, Local & Federal Affairs

Committee, CS/HB 307, dated June 19, 2014.

See Inf. Op. to County Attorney Albert J. Hadeed, Flagler County, dated

October 22, 2013 (concluding under the plain language of s. 509.242(1)(c)

that a single-family house could be used as a vacation rental, subject to

regulation by the state, when there were no zoning ordinances in effect

prior to June 1, 2011, that would have prevented such use).

The deﬁ nitions of “prohibit” in Black’s Law Dictionary (10th ed. 2014),

are: “1. To forbid by law[,]” and, “2. To prevent, preclude, or severely

hinder.”

See Metro. Dade County v. Chase Fed. Hous. Corp., 737 So. 2d 494, 504

(Fla. 1999).

126 So. 2d 543 (Fla. 1960).

Id. at 550.

Id. at 551 (citing State ex rel. James v. Gerell, 188 So. 812 (Fla. 1938).

Gerell, 188 So. at 814.

30 Cinnamon Beach Way, LLC v. Flagler County, 2015-CA-167 (Fla.

7th Cir. Ct. June 1, 2015), aff’d, 183 So. 3d 373 (Fla. 5th DCA 2016) (per

curiam).

Fla. Gulf Coast Vacation Homes, LLC v. City of Anna Maria, 2016-CA-

629 (Fla. 12th Cir. Ct. April 11, 2016).

See supra n. 9.

AGO 16-13 – October 5, 2016

COUNTIES – MUNICIPAL SERVICE TAXING OR BENEFIT

UNIT – ESSENTIAL MUNICIPAL SERVICES

WHETHER THE COUNTY MAY EXPAND AN EXISTING MSTU/

MSBU TO PROVIDE LANDSCAPING, SIGNAGE, CANAL

MAINTENANCE, AND CANAL RESTORATION UNDER S.

125.01(1)(Q), FLA. STAT.

To: Mr. Robert B. Shillinger, County Attorney, Monroe County

QUESTION:

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Whether Monroe County is authorized pursuant to section

125.01(1)(q), Florida Statutes, to establish a municipal service

taxing or benefit unit for landscaping, signage, and canal

maintenance and restoration?

SUMMARY:

Section 125.01(1)(q), Florida Statutes, allows a county

to create municipal service taxing or beneﬁ t units for the

provision of enumerated services and “other essential facilities

and municipal service[s].” Whether the intended landscaping,

signage, canal maintenance, and canal restoration are essential

municipal services is a mixed question of law and fact that the

County, rather than this ofﬁ ce, must determine.

You state that Monroe County has a municipal service beneﬁ t unit

that was established in 1992 to provide security services for residential

areas of Duck Key by means of annual non-ad valorem assessments.

You would like to expand the Duck Key Security District to provide

landscaping, signage, and canal maintenance and restoration, within

which you include property beautiﬁ cation, lawn trimming, planting

and landscaping, installation and repair of signage in the residential

areas and rights-of-way, mangrove trimming along canals and

waterways, and other canal maintenance and restoration projects to

improve navigability and water quality. You indicate that the County

understands that if these new services are authorized, the County must

amend the ordinance used to create the Duck Key Security District,

which is limited to the provision of security services.

Section 125.01(1)(q), Florida Statutes, authorizes the county’s

legislative and governing body – the board of county commissioners – to

establish a municipal service taxing unit (“MSTU”) and/or a municipal

service beneﬁ t unit (“MSBU”) to provide the kinds of municipal services

enumerated in the statute. Speciﬁ cally, the statute provides that county

government may:

(q) Establish, and subsequently merge or abolish those created

hereunder, municipal service taxing or beneﬁ t units for any

part or all of the unincorporated area of the county, within

which may be provided ﬁ re protection; law enforcement;

beach erosion control; recreation service and facilities; water;

alternative water supplies, including, but not limited to,

reclaimed water and water from aquifer storage and recovery

and desalination systems; streets; sidewalks; street lighting;

garbage and trash collection and disposal; waste and sewage

collection and disposal; drainage; transportation; indigent

health care services; mental health care services; and other

essential facilities and municipal services from funds derived

from service charges, special assessments, or taxes within such

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unit only.

Because the services speciﬁ cally enumerated in paragraph (q) do not

include those that you propose, namely landscaping, signage, canal

maintenance, and canal restoration, these would only be allowed if the

county commission determines that they qualify as “other essential

facilities and municipal services.”

As you acknowledge, section 125.01, Florida Statutes, does not deﬁ ne

“other essential facilities and municipal services.” Use of the term

“other” makes clear that the services a county seeks to provide through

an MSTU or MSBU must be comparable to the services previously

enumerated therein. “The powers enumerated in section 125.01 are not

all inclusive, and a county’s authority includes that which is ‘reasonably

implied or incidental to carrying out [its] enumerated powers,’ limited

only by general or special law.”

In section 125.01(3)(b), Florida

Statutes, the Legislature stated that the provisions of the statute must

be “liberally construed in order to effectively carry out the purpose of

this section and to secure for the counties the broad exercise of home

rule powers authorized by the State Constitution.”

The term “essential” applies both to “facilities and municipal services.”

Absent any statutory deﬁ nition, it is useful to consider how the term

has been employed elsewhere in the municipal-services context.

The

Florida Supreme Court has speciﬁ cally addressed the meaning of the

term “essential” as it is used when deﬁ ning “municipal or public purpose”

under Article VII, section 3(a) of the Florida Constitution. In order to

qualify for an exemption from ad valorem taxation under that provision,

an activity must be shown to be “essential to the health, morals, safety,

and general welfare of the people within the municipality.”

(e.s.) The

court quoted three dictionary deﬁ nitions of “essential” – basic, necessary,

or indispensable – and concluded that “inherent in the word essential is

the concept of great need or necessity.”

Accordingly, it is reasonable to conclude that the term “essential”

in section 125.01(1)(q), Florida Statutes, indicates that there must be

a great need or necessity for the non-enumerated municipal services

that are sought to be provided to district taxpayers within an MSTU or

MSBU.

This ofﬁ ce has looked to section 170.01, Florida Statutes, which

constitutes a lengthy listing of municipal services that may be

appropriately funded by special assessment, to determine whether a

county might provide a particular service to certain property by special

assessment.8 Landscaping and signage are speciﬁ cally included as

municipal services under section 170.01(1), Florida Statutes, as are

“reconstruction, repair, renovation” of canals, and “improvements to

permit the passage and navigation of watercraft.”

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The determination of whether the provision of landscaping, signage,

and canal maintenance and restoration constitute services essential to

the people of Monroe County’s proposed MSTU or MSBU presents a

mixed question of law and fact which is thus beyond the purview of this

ofﬁ ce.

Accordingly, it is my opinion that under section 125.01(1)(q), Florida

Statutes, which allows a county to provide essential municipal services

to municipal service taxing or beneﬁ t units, the County must decide the

mixed question of law and fact as to whether the intended landscaping,

signage, canal maintenance, and canal restoration are essential

municipal services.

Monroe County collects the assessment on each property within the

Security District pursuant to the uniform method for collection of non-ad

valorem assessments set forth in s. 197.3632, Fla. Stat.

Donnelly v. Marion County, 851 So. 2d 256, 261 (Fla. 5th DCA 2003)

(quoting Sockol v. Kimmins Recycling Corp., 729 So. 2d 998, 1001 [Fla.

4th DCA 1999]).

See, e.g., State v. Huggins, 802 So. 2d 276, 277-78 (Fla. 2001) (in the

phrase, “occupied structure or dwelling,” in a sentencing statute, the

adjective “occupied” modiﬁ ed both “structure” and “dwelling”). “Phrases

constructed like the phrase at issue … are commonly construed to mean

that the adjective modiﬁ es subsequent nouns, for example, ‘qualiﬁ ed

man or woman’ and ‘governmental ﬁ ne or penalty’ mean ‘qualiﬁ ed man

or qualiﬁ ed woman’ and ‘governmental ﬁ ne or governmental penalty,’

respectively.” Id. at 278.

See, e.g., Miele v. Prudential-Bache Sec., Inc., 656 So. 2d 470, 472

(Fla. 1995) (“[T]he context in which a term is used may be referred to in

ascertaining the meaning of that term.”); Sneed v. State, 736 So. 2d 1274,

1276 (Fla. 4th DCA 1999) (the meaning of a statutory term should be

consistent with “context and ordinary usage,” and “the surrounding body

of law into which the provision must be integrated”).

Art. VII, s. 3(a), Fla. Const., provides, in part: “All property owned by

a municipality and used exclusively by it for municipal or public purposes

shall be exempt from taxation.”

Fla. Dep’t of Revenue v. City of Gainesville, 918 So. 2d 250, 264 (Fla.

2005) (concluding that a statute requiring local governments to pay

ad valorem taxes on their telecommunications services did not facially

conﬂ ict with art. VII, s. 3(a), because such services were not necessarily

essential to the health, morals, safety, and general welfare of the people

within such local government). Accord City of Ft. Pierce v. Treasure

Coast Marina, 2016 WL 1660600 (Fla. 4th DCA 2016). See also State v.

City of Jacksonville, 50 So. 2d 532, 535 (Fla. 1951) (“Though there was

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a time when a municipal purpose was restricted to police protection or

such enterprises as were strictly governmental that concept has been

very much expanded and a municipal purpose may now comprehend all

activities essential to the health, morals, protection and welfare of the

municipality.”).

Fla. Dep’t of Revenue, 918 So. 2d at 264.

See Op. Att’y Gen. Fla. 01-82 (2001) (concluding that the county is

authorized to levy a special assessment for replacing above-ground

with underground electric transmission lines, so long as supported by

appropriate ﬁ ndings).

See City of Winter Springs v. State, 776 So. 2d 255, 257 n.2 (Fla. 2001)

(landscaping and signage within a special district were “well-recognized”

as municipal services, see, e.g., s. 170.01(1), Fla. Stat., and were the proper

subjects of a special assessment bond when supported by legislative

ﬁ ndings of the city).

See Op. Att’y Gen. Fla. 99-70 (1999) (observing that the municipality

must make the ﬁ nal determination as to whether maintenance of its

canal system is a valid transportation expenditure under s. 336.025).

AGO 16-14 – October 5, 2016

MUNICIPALITIES – PUBLIC EMPLOYEES – SEVERANCE

PAY – EARLY RETIREMENT PLAN

WHETHER THE CITY MAY AWARD SEVERANCE PAY TO

EMPLOYEES HIRED BEFORE JULY 1, 2011; WHETHER THE

CITY MAY ADOPT A NEW SEVERANCE PAY PROGRAM

CONSISTENT WITH S. 215.425, FLA. STAT.; AND WHETHER THE

CITY MAY ADOPT AN EARLY RETIREMENT PLAN

To: Mr. Scott E. Simpson, City Attorney, City of South Daytona

QUESTIONS:

1. Does section 215.425, Florida Statutes, prohibit a local

government from adopting a personnel policy providing payment

in lieu of notice to employees who are terminated without cause

or who submit a resignation?

2. If no, does section 215.425, Florida Statutes, limit the

payment in lieu of notice to 20 weeks?

3. If yes, are employees who were employed by the City

prior to the effective date of the amendment to section 215.425,

Florida Statutes, grandfathered under the existing City’s policy

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and therefore still entitled to receive the full payment in lieu of

notice even if in excess of 20 weeks?

4. Can the City provide an early retirement program that

provides benefits that exceed 20 weeks of compensation?

SUMMARY:

1. Section 215.425(4)(a), Florida Statutes, permits a local

government to adopt a personnel policy providing severance

pay to employees terminated without cause or who submit a

resignation.

2. Section 215.425(4)(a)1., Florida Statutes, limits such

severance pay to 20 weeks.

3. The amendment to section 215.425, Florida Statutes,

operated prospectively, and therefore, under the South Daytona

ordinance that existed prior to the effective date of July 1, 2011,

the City Manager retains the discretion to decide whether to

provide severance pay to City employees who were hired before

that date.

4. Section 215.425(4)(d)2., Florida Statutes, provides that

an early retirement program that complies with part VII of

Chapter 112, Florida Statutes, is not subject to the limitations

on severance pay found in section 215.425, Florida Statutes.

You state that in South Daytona, city employees who are not in a

bargaining unit serve at the pleasure of the City Manager and can be

terminated from employment without cause. In 2009, the City adopted

an ordinance authorizing severance pay in lieu of notice to employees

who resign or who are terminated from employment without cause.

The municipal ordinance provides, in part: “The city manager shall,

in the manager’s sole direction, be entitled to provide upon resignation

and/or termination of a nonbargaining unit personnel, pay in lieu of

notice, up to but not exceeding the limits set forth in subsection 2-402(c)

[.]”

Section 215.425, Florida Statutes, has long prohibited state and local

governments from using public funds to pay additional compensation

for work that has already been performed for an agreed-upon wage.

No extra compensation shall be made to any ofﬁ cer, 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

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allowed by a law enacted by two-thirds of the members elected

to each house of the Legislature.

In 1992, the Legislature amended the statute to add the following

exemption from this general prohibition for local governments:

The provisions of this section also do not apply to extra

compensation given to county or municipal employees pursuant

to policies adopted by county or municipal ordinances.

In the same bill, the Legislature amended sections 125.01, Florida

Statutes, and 166.021, Florida Statutes, setting forth the powers and

duties of county and municipal government, respectively, to permit

programs providing extra compensation to employees after the work

had been performed.

The South Daytona ordinance quoted above was

consistent with the 1992 amendments.

In 2011, the Legislature amended section 215.425, Florida Statutes,

removing the exception speciﬁ cally addressed to local governments and

adding provisions dealing with bonuses and severance pay. Your ﬁ rst

three questions pertain to application of the following severance pay

provisions of the statute:

(4)(a) On or 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 ofﬁ cer,

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 ofﬁ cer,

agent, employee, or contractor has been ﬁ red for misconduct, as

deﬁ ned in s. 443.036(29), by the unit of government.

(b) On or after July 1, 2011, an ofﬁ cer, agent, employee, or

contractor may receive severance pay that is not provided for

in a contract or employment agreement if the severance pay

represents the settlement of an employment dispute. Such

severance pay may not exceed an amount greater than 6 weeks

of compensation. The settlement may not include provisions

that limit the ability of any party to the settlement to discuss

the dispute or settlement.

pay in the absence of its authorization.

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(d) As used in this subsection, the term “severance pay” means

the actual or constructive compensation, including salary,

beneﬁ ts, or perquisites, for employment services yet to be

rendered which is provided to an employee who has recently

been or is about to be terminated.

Questions 1. and 2.

Paragraph (4)(a) clearly states that a unit of government is

permitted to provide an employee with severance pay upon termination

of employment, when an employment agreement has been negotiated or

renegotiated after July 1, 2011, so long as the amount does not exceed

20 weeks of compensation and the employee was not terminated for

misconduct.

Question 3.

In 2009, when South Daytona enacted its ordinance giving the city

manager the discretion to award severance pay in lieu of notice, the

1992 amendment to section 215.425, Florida Statutes (quoted supra on

page 2), authorized municipalities to provide such extra compensation

programs by ordinance as an exception to the general prohibition

against compensation for work already performed. The language of the

2011 amendment, by stating that it speciﬁ cally applied to employment

contracts or agreements entered after July 1, 2011, and to employment

disputes settled after July 1, 2011, shows that the Legislature intended

it to operate prospectively.

Accordingly, the 2011 amendment to section 215.425, Florida

Statutes, limiting severance pay to 20 weeks, applies only to employment

agreements negotiated after July 1, 2011. There is no language in

the amendment disturbing any employment arrangements that were

entered into pursuant to lawful ordinance prior to that date that have

not been renegotiated.

Question 4.

Included in the 2011 amendment, section 215.425(4)(d), Florida

Statutes, states that the term “severance pay” does not encompass

“[e]arly retirement under provisions established in an actuarially funded

pension plan subject to part VII of chapter 112[.]” This unambiguous

language establishes that an early retirement program consistent with

this provision would not be subject to the limitations for severance pay

found in paragraph (4)(a).

Therefore, it is my opinion that section 215.425, Florida Statutes,

permits the City Manager of South Daytona to award severance pay

to employees who were hired prior to July 1, 2011, as authorized by

then-existing statutes and municipal ordinance, and permits South

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110

Daytona to adopt a personnel policy providing severance pay in lieu of

notice in an amount no greater than 20 weeks for employees hired or

who renegotiate a contract after July 1, 2011, who are not discharged

based upon misconduct. The statute further permits the City to adopt

an early retirement program providing beneﬁ ts in excess of 20 weeks of

compensation so long as it is an actuarially funded pension plan subject

to Part VII of Chapter 112, Florida Statutes.

“Wages in lieu of notice” are payments for a speciﬁ ed period of time

made to employees who are discharged immediately without cause. Such

employees remain on the payroll for a period of time in which they would

ordinarily have been working after giving notice. See Op. Att’y Gen. Fla.

91-51 (1991).

Art. VIII, s. 2-402(d), South Daytona Code of Ordinances.

This ofﬁ ce has previously stated that s. 215.425, Fla. Stat., is intended

to “carry out a basic and fundamental principle that public funds may

be used only for a public purpose and it is contrary to this policy to use

public funds to give extra compensation for work which has already been

performed for an agreed upon wage.” (emphasis in original) Op. Att’y

Gen. Fla. 97-21 (1997).

This prohibition was originally enacted in Art. XVI, s. 11 of the 1885

Fla. Const., and was converted to statute by Art. XII, s. 10 of the 1968

Constitution.

Section 3, Ch. 92-90, Laws of Fla.

Sections 1 and 2, Ch. 92-90, Laws of Fla.

Section 1, Ch. 2011-143, Laws of Fla.

See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla.

1994). Moreover, a substantive law will not be applied retroactively when

this would impair an existing right or duty. See id.; Fla. Ins. Guar. Ass’n,

Inc. v. Devon Neighborhood Ass’n, Inc., 67 So. 3d 187, 194-95 (Fla. 2011);

Morris v. Swanson, 940 So. 2d 1256, 1257-58 (Fla. 1st DCA 2006); Op.

Att’y Gen. Fla. 13-27 (2013). South Daytona’s 2009 ordinance stated that

the city manager was “entitled” to provide severance pay to employees

who resigned or were terminated.

AGO 16-15 – October 5, 2016

DUAL OFFICE-HOLDING – COUNTIES – MUNICIPALITIES –

PLANNING AND ZONING BOARDS – HISTORIC

PRESERVATION BOARDS

INDIVIDUAL MAY NOT SIMULTANEOUSLY SERVE ON THE

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111

CITY’S PLANNING AND ZONING BOARD AND THE COUNTY’S

HISTORIC PRESERVATION BOARD AS BOTH INVOLVE

EXERCISE OF THE SOVEREIGN POWER

To: Mr. William J. Gallo, City of Lighthouse Point Planning and Zoning

Board

QUESTION:

Does simultaneous service on the City of Lighthouse Point

Planning and Zoning Board and the Broward County Historic

Preservation Board violate the constitutional prohibition

against dual office-holding?

SUMMARY:

Simultaneous service on the City of Lighthouse Point

Planning and Zoning Board and the Broward County Historic

Preservation Board would violate the prohibition against dual

ofﬁ ce-holding in section 5(a), Article II, Florida Constitution.

Section 5(a), Article II, Florida Constitution, in pertinent part,

provides:

No person holding any ofﬁ ce of emolument under any foreign

government, or civil ofﬁ ce of emolument under the United

States or any other state, shall hold any ofﬁ ce of honor or of

emolument under the government of this state. No person

shall hold at the same time more than one ofﬁ ce under the

government of the state and the counties and municipalities

therein, except that a notary public or military ofﬁ cer may

hold another ofﬁ ce, and any ofﬁ cer may be a member of a

constitution revision commission, taxation and budget reform

commission, constitutional convention, or statutory body

having only advisory powers.

In addressing the question you have raised, it must be determined

whether each of the positions you hold is an ofﬁ ce for purposes of the

dual ofﬁ ce-holding prohibition. No deﬁ nition is provided for the terms

“ofﬁ ce” and “ofﬁ cer” in the Constitution. Opinions of the Florida Supreme

Court and the Attorney General’s Ofﬁ ce, however, have focused upon

the nature of the powers and duties of a particular position to determine

whether it is an “ofﬁ ce” or an “employment” which falls outside the scope

of the prohibition. The Florida Supreme Court has stated:

The term “ofﬁ ce” implies a delegation of a portion of the

sovereign power to, and the possession of it by, the person

ﬁ lling the ofﬁ ce, while an “employment” does not comprehend

BIENNIAL REPORT OF THE ATTORNEY GENERAL

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a delegation of any part of the sovereign authority. The term

“ofﬁ ce” embraces the idea of tenure, duration and duties in

exercising some portion of the sovereign power, conferred or

deﬁ ned by law and not by contract. 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 ofﬁ ce. . . .

In Attorney General Opinions 89-25 and 90-33, this ofﬁ ce found that

local planning and zoning commissions possessing the power to grant

variances that are approved without review or that are ﬁ nal unless

appealed to the county commission did not fall within the exception

for advisory bodies. While statutory bodies possessing only advisory

powers are excepted from the dual ofﬁ ce-holding prohibition, section

5(a), Article II, Florida Constitution, does not recognize an exception for

bodies whose powers are substantially advisory.

Certain town committees that are given the authority to make

factual determinations, review permit applications, issue permits,

grant variances, or impose ﬁ nes have been determined to be exercising

sovereign powers and, therefore, were ofﬁ ces for purposes of the dual

ofﬁ ce-holding prohibition. However, where a committee or board

merely makes non-binding recommendations and has not been

delegated any power to make factual determinations or exercise any

portion of sovereign power, there is no ofﬁ ce subject to the constitutional

prohibition.

You have provided information regarding the powers and duties of

both boards. Relative to the Lighthouse Point Planning and Zoning

Board, the city’s code of ordinances provides that the board, among

other things, grants temporary permits for nonconforming uses of lands

and buildings with the city, hears and decides appeals of administrative

decisions involving zoning regulations, hears and determines grants of

variances, and reviews conditional use approval applications.

Given

the discussion above regarding what constitutes an ofﬁ ce, the power of

the planning and zoning board to grant variances and to decide appeals

would be characteristics of an ofﬁ ce which would subject the position to

the dual ofﬁ ce-holding prohibition.

In relation to the county’s historic preservation board, the county code

reﬂ ects the board’s duty to: make recommendations on historic resource

designations; approve, approve with conditions, or deny certiﬁ cates of

appropriateness and certiﬁ cates to dig; and carry out duties assigned

by the county commission.

Of note, the code provides that “no

building permits shall be issued for new construction, demolition,

alteration, rehabilitation, signage, or any other physical modiﬁ cation

of a historic resource, . . ., without the prior issuance of a certiﬁ cate of

appropriateness by the Broward County Historic Preservation Board[.]”

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While the weight of the duties of the historic preservation board appear

to be advisory in nature, its duties include the approval or denial of

certiﬁ cates of appropriateness which is an essential determination

before issuance of a building permit for a historic resource.

As discussed above, there is no exception for bodies with substantially

or predominately advisory duties. In light of the historic board’s

authority to approve or deny certiﬁ cates of appropriateness, there is

the exercise of a sovereign power which would make a position on the

board an ofﬁ ce subject to the dual ofﬁ ce-holding prohibition in section 5,

Article II, Florida Constitution.

In sum, it is my opinion that simultaneous membership on the City

of Lighthouse Point Planning and Zoning Board and the Broward

County Historic Preservation Board would violate section 5(a), Article

II, Florida Constitution, prohibiting dual ofﬁ ce-holding.

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).

And see Op. Att’y Gen. Fla. 73-47 (1973) (if a parks, planning and

zoning commission was granted more than mere advisory powers, that

fact would exclude commission members from the exemption in s. 5(a),

Art. II, Fla. Const.). Accord Op. Att’y Gen. Fla. 69-62 (1969).

See Ops Att’y Gen. Fla. 2013-22 and 2005-59.

Section 42-281(c), Lighthouse Point Code of Ordinances.

Section 5-530(b), Art. XVII, Declaration of legislative intent and

purpose, Broward County Code of Ordinances.

Section 5-531(a), Scope and exemptions, Broward County Code of

Ordinances.

See In re Advisory Opinion to the Governor, 79 So. 874 (Fla. 1918), in

which the Court stated that when a person holding one ofﬁ ce is appointed

to and accepts another ofﬁ ce, such acceptance vacates the person’s right

and status to the ﬁ rst ofﬁ ce; and Ops. Att’y Gen. Fla. 94-40 (1994) and

77-63 (1977). Cf. Holley v. Adams, 238 So. 2d 401, 407 (Fla. 1970) (“The

acceptance of an incompatible ofﬁ ce by one already holding ofﬁ ce operates

as a resignation of the ﬁ rst.”).

AGO 16-16 – October 5, 2016

SOUTH BROWARD HOSPITAL DISTRICT – PUBLIC

RECORDS – ATTORNEY’S FEES – PUBLIC FUNDS

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AUTHORITY OF DISTRICT TO REIMBURSE ATTORNEY’S

FEES TO INDIVIDUAL COMMISSIONER RETAINING PRIVATE

COUNSEL TO RESPOND TO PUBLIC RECORD REQUEST

To: Ms. Kimarie Stratos, General Counsel, Memorial Healthcare

System, South Broward Hospital District

QUESTION:

May the district reimburse a board member’s attorney’s

fees incurred by her in responding to a public records request

pertaining to her board service when no suit, claim, charge, or

action has been instituted against the commissioner during the

time the attorney’s fees were incurred?

SUMMARY:

The South Broward Hospital District is not authorized to

reimburse a board member for attorney’s fees incurred by her

in responding to a public records request when no suit, claim,

charge or action has been instituted against the commissioner

during the time the attorney’s fees were incurred.

You have provided the following background. The South Broward

Hospital District (hospital district) was conducting a search for a

new chief operating ofﬁ cer. A public records request was made of all

commissioners in relation to the search. Allegations of violation of

section 286.011, Florida Statutes (Government in the Sunshine Law)

were made, but no legal action was ﬁ led, and the subject commissioner

retained private counsel to assist in her response to the public records

request. The district did not provide a district email address or phone

for individual commissioners to conduct district business such that

the commissioner’s private computer and telephone records had to be

reviewed to recover the requested public records. Due to her concerns

about the independence of the district’s counsel, the commissioner

was unwilling to turn over all of her records to the district’s counsel

for review or to make use of the district’s information technology staff

who were made available to all commissioners to extract and copy

responsive material from their individual devices. At no point were any

legal charges ﬁ led against the commissioner.

Section 286.011(7), Florida Statutes, provides:

Whenever any member of any board or commission of any state

agency or authority or any agency or authority of any county,

municipal corporation, or political subdivision is charged with

a violation of this section and is subsequently acquitted, the

board or commission is authorized to reimburse said member

for any portion of his or her reasonable attorney’s fees.

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While the language in section 286.011(7), Florida Statutes, is clear

in the parameters which must be met before a member of a board may

be reimbursed for his or her attorney’s fees in successfully defending a

charge of violation of the Government in the Sunshine Law, the facts

in this situation are that no legal action has been ﬁ led against the

commissioner and she retained private counsel in order to respond to a

public records request.

The authority extended by section 286.011(7),

Florida Statutes, to reimburse attorney’s fees, therefore, is not

applicable.

Chapter 2004-397, Laws of Florida, is the enabling legislation for the

South Broward Hospital District. The act sets forth the broad powers

of the district’s governing board to carry out the district’s purpose of

providing health care services.

The commissioners are required to

cause true and accurate minutes and records to be kept of

all business transacted by them, and shall keep full, true,

and complete books of account and minutes, which minutes,

records, and books of account shall at all reasonable times be

open and subject to the inspection of inhabitants of the district;

and any person desiring to do so may make or procure a copy

of the minutes, records, or books of account, or such portions

thereof as he may desire.

There is no question that all records of the district are public records,

subject to inspection and copying by anyone requesting same, unless

exempted or made conﬁ dential by law.

While there is provision for the

recovery of attorney’s fees when a plaintiff ﬁ les a civil action against

an agency to enforce the provisions of this chapter and the court

determines that such agency unlawfully refused to permit a public

record to be inspected or copied,5 there is no provision similar to that

found in section 286.011(7), Florida Statutes, nor is there authority for

the reimbursement of attorney’s fees to a public ofﬁ cial who has hired a

private attorney to assist in the production of public records.

As an administrative agency created by statute, the South Broward

Hospital District is constrained to exercise those powers expressly

granted or by implication necessary to carry out the express authority

granted them by statute.

Any reasonable doubt as to the lawful

existence of a particular power sought to be exercised must be resolved

against the exercise thereof.

Therefore, it is my opinion that the South Broward Hospital District

is not authorized to reimburse a board member for attorney’s fees

incurred by her in responding to a public records request when no suit,

claim, charge, or action has been instituted against the commissioner

during the time the attorney’s fees were incurred.

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See also s. 111.07, Fla. Stat., authorizing any agency of the state, or any

county, municipality, or political subdivision of the state to provide an

attorney to defend any civil action arising from a complaint for damages

or injury suffered as a result of any act or omission of any of its ofﬁ cers,

employees, or agents for an act or omission arising out of and in the scope

of his or her employment or function, unless, in the case of a tort action,

the ofﬁ cer, employee, or agent acted in bad faith, with malicious purpose,

or in a manner exhibiting wanton and willful disregard of human rights,

safety, or property.

See s. 4, Ch. 2004-397, Laws of Fla.

Section 5, Ch. 2004-397, Laws of Fla.

See s. 119.07(1), Fla. Stat.

See s. 119.12, Fla. Stat.

See State ex rel. Greenberg v. Fla. State Bd. of Dentistry, 297 So. 2d

628, 634 (Fla. 1st DCA 1974) (administrative agencies are creatures of

statute and have only such powers as statutes confer); Fiat Motors of

North America, Inc. v. Calvin, 356 So. 2d 908, 909 (Fla. 1st DCA 1978).

See, e.g., Gardinier, Inc. v. Fla. Dep’t of Pollution Control, 300 So. 2d

75, 76 (Fla. 1st DCA 1974); Williams v. Fla. Real Estate Comm’n, 232 So.

2d 239, 240 (Fla. 4th DCA 1970).

AGO 16-17 – October 5, 2016

JUDGES – SPECIAL MASTERS – FIREARMS

WHETHER A SPECIAL MASTER IS A “JUDGE” FOR PURPOSES

OF CARRYING A FIREARM INTO HIS OR HER COURTROOM

PURSUANT TO S. 790.06(12)(A)5., FLA. STAT.

To: Mr. Charles D. Johnson, Special Master for Lake County

QUESTION:

Is a special master considered a “judge” as that term is used

in section 790.06(12)(a)5., Florida Statutes, for purposes of

carrying a concealed firearm into his or her courtroom?

SUMMARY:

A special master is not a “judge” for purposes of carrying a

concealed ﬁ rearm into his or her courtroom pursuant to section

790.06(12)(a)5., Florida Statutes.

You have advised this ofﬁ ce that you are the appointed Special Master

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for Lake County, Florida, and preside over quasi-judicial hearings

involving matters related to violations of the Lake County Code and

Land Use Development. You are requesting my opinion on whether

you, as a special master, fall within the exception to the prohibition

against carrying a concealed weapon in a courtroom which is extended

to judges under section 790.06(12)(a)5., Florida Statutes.

The Department of Agriculture and Consumer Services is authorized

by section 790.06, Florida Statutes, to issue licenses to carry concealed

weapons or concealed ﬁ rearms.

Any person in compliance with the

licensure requirements may carry a concealed weapon, but must carry

the license, and valid identiﬁ cation, at all times while in possession of

the concealed weapon.

However, section 790.06(12)(a), Florida Statutes, contains the

following general prohibition and exception:

(12)(a) A license issued under this section does not authorize

any person to openly carry a handgun or carry a concealed

weapon or ﬁ rearm 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.)

Thus, the statute contains a speciﬁ c, limited exception from the

prohibition for a judge to carry a concealed weapon into his or her own

courtroom.

Section 790.001, Florida Statutes, providing deﬁ nitions to be used

in construing Chapter 790, Florida Statutes, contains no deﬁ nition of

the term “judge.” However, other provisions of the chapter also refer to

judges and may be helpful in addressing your question.

Section 790.061, Florida Statutes, states that:

Judges and justices; exceptions from licensure

provisions.–A county court judge, circuit court judge, district

court of appeal judge, justice of the supreme court, federal

district court judge, or federal court of appeals judge serving

in this state is not required to comply with the provisions

of s. 790.06 in order to receive a license to carry a concealed

weapon or ﬁ rearm, except that any such justice or judge must

comply with the provisions of s. 790.06(2)(h). The Department

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of Agriculture and Consumer Services shall issue a license

to carry a concealed weapon or ﬁ rearm to any such justice or

judge upon demonstration of competence of the justice or judge

pursuant to s. 790.06(2)(h).

This ofﬁ ce, in Attorney General Opinion 93-29, concluded that the

language of section 790.061, Florida Statutes (1992 Supp.), which

contains a limited exception from the licensure requirements of section

790.06, Florida Statutes, for certain judges, applied to state court judges

only. The requestor of that opinion, a federal district court judge serving

in this state, had asked whether he was exempt from the licensure

provisions of the statute. While the statue was amended in 1995 to

include both federal district court judges and federal court of appeals

judges, Attorney General Opinion 93-29 relies on the legislative history

for the original statute to determine that the exception was intended to

apply strictly to state court judges and justices and did not encompass

federal judges or otherwise reach outside the clear terms of the statute.

Likewise, it is my opinion that the term “judges” as it is used in

section 790.06(12)(a)5., Florida Statutes, is intended to apply to those

ofﬁ cers vested by the Florida Constitution with the judicial power of

the state.

I read the term “judges” as used in section 790.06, Florida

Statutes, providing for a license to carry concealed weapons or ﬁ rearms,

in pari materia with section 790.061, Florida Statutes, which excepts

such judges from the requirement to comply with a number of those

licensure requirements.

That is, a judge or justice as described in

section 790.061, Florida Statutes, is not required to comply with the

provisions of section 790.06 in order to receive a license to carry a

concealed weapon or ﬁ rearm [except to demonstrate competence with

a ﬁ rearm pursuant to the provisions of section 790.06(2)(h)] and is

authorized to carry that concealed ﬁ rearm into his or her courtroom

while others may not.

The intent of section 790.06(12)(a)5., Florida Statutes, is clear. Where

the language of a statue is unambiguous, the clearly expressed intent

must be given effect and there is no room for construction.

Where the

statute’s language is plain, deﬁ nite in meaning without ambiguity, it

ﬁ xes the legislative intention so that interpretation and construction

are not needed.

Finally, I note that statutory exceptions to general prohibitions must

be construed strictly against the one who attempts to take advantage of

the exception

and that exceptions to statutes are to be strictly construed

and limited to their intended purpose.

Thus, the statutory exception

to the general prohibition against carrying concealed ﬁ rearms into a

courtroom which would allow a judge to do so, must be construed strictly

and will not be read to extend to others such as special magistrates.

In sum, it is my opinion that a special master may not be considered

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119

a “judge” within the scope of section 790.06(12)(a)5., Florida Statutes,

for purposes of carrying a concealed ﬁ rearm into his or her courtroom.

Section 790.06(1), Fla. Stat.

Id.

See s. 1, Art. V, Fla. Const. And see ss. 3, 4, 5, and 6, Art. V, Fla. Const.,

providing for the organization and jurisdiction of such courts.

Related statutes should be read together so that they illuminate one

another and are harmonized. See Ideal Farms Drainage Dist. v. Certain

Lands, 19 So. 2d 234 (Fla 1944); State v. Haddock, 140 So. 2d 631 (Fla.

1st DCA 1962).

Fine v. Moran, 77 So. 533, 536 (Fla. 1917); M.W. v. Davis, 756 So. 2d 90

(Fla. 2000).

Osborne v. Simpson, 114 So. 543, 544 (Fla. 1927); Holly v. Auld, 450 So.

2d 217 (Fla. 1984).

State v. Nourse, 340 So. 2d 966, 969 (Fla. 3d DCA 1976); Op. Att’y Gen.

Fla. 99-11 (1999).

See Samara Dev. Corp. v. Marlow, 556 So. 2d 1097 (Fla. 1990); Farrey

v. Bettendorf, 96 So. 2d 889 (Fla. 1957); Coe v. Broward County, 327 So.

2d 69 (Fla. 4th DCA 1976), aff’d, 341 So. 2d 762 (Fla. 1976).

AGO 16-18 – December 5, 2016

TAXATION – COUNTIES – TOURIST DEVELOPMENT TAX

WHETHER THE COUNTY CAN FUND LAW ENFORCEMENT

SERVICES AT A NATURE CENTER USING TOURIST

DEVELOPMENT TAX REVENUES UNDER S. 125.0104(5)(B),

FLA. STAT.

To: Ms. Michelle Blankenship Jordan, County Attorney for Jackson

County

QUESTION:

Does section 125.0104(5)(b), Florida Statutes, authorize

the use of tourist development tax revenues to provide law

enforcement at a nature center?

SUMMARY:

Section 125.0104(5)(b), Florida Statutes, allows county

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government to use tourist development tax revenues to “acquire,

construct, extend, enlarge, remodel, repair, improve, maintain,

operate, or promote” a nature center, and does not authorize

law enforcement services.

Section 125.0104, Florida Statutes, the Local Option Tourist

Development Act, authorizes any county of this state to levy a “tourist

development tax.” Section 125.0104(5)(a), Florida Statutes, enumerates

the permissible uses of revenues generated from the tax, including,

for example, the building and operating of convention centers, sports

stadiums, aquariums, museums, tourist bureaus, beach park facilities,

etc., and the promotion of tourism. Section 125.0104(5)(b), Florida

Statutes, authorizes additional uses, permitting counties with fewer

than 750,000 people:

to acquire, construct, extend, enlarge, remodel, repair, improve,

maintain, operate, or promote one or more zoological parks,

ﬁ shing piers or nature centers which are publicly owned and

operated or owned and operated by not-for-proﬁ t organizations

and open to the public.

You previously submitted a request for an opinion as to whether

section 125.0104(5)(b), Florida Statutes, authorized Jackson County to

expend tourist development tax revenues to construct a nature center

with a boat ramp and an elevated platform for bird and landscape

observation. In response, this ofﬁ ce issued Attorney General Opinion

2015-14, concluding that such uses were consistent with the statute, if

the county were to make the legislative determination that the project

related to and primarily promoted tourism.

In your current inquiry, you suggest that expenses associated with

law enforcement services (sheriff and police) might be authorized by

subsection (5)(b) as part of the “maintenance” or “operation” of the

nature center. Under a plain reading of the provision, however, the

terms “maintain” and “operate” apply to the running of the nature

center itself, whereas law enforcement would be providing the additional

services of preventing and detecting unlawful activity occurring at the

nature center.

Section 125.0104(5)(e), Florida Statutes, explicitly

states: “Any use of the local option tourist development tax revenues

collected pursuant to this section for a purpose not expressly authorized

by … paragraphs (a) – (d) of this subsection is expressly prohibited.”

(e.s.) When there is doubt as to whether the Legislature has expressly

authorized a particular exercise of taxation power, such doubt must be

resolved against the local government imposing the tax.

A general rule of statutory construction is that, when the Legislature

wishes to authorize certain conduct, it well knows how to express itself,

which is best illustrated by the Legislature’s inclusion of such conduct in

another part of the same statute in question.

In 2016, the Legislature

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amended section 125.0104(5), Florida Statutes, to add a new subsection

(c), expressly authorizing use of tourist development tax dollars for law

enforcement in certain counties, as follows:

Ocean, except a county that receives revenue from taxes levied

pursuant to s. 125.0108, which meets the following criteria may

use up to 10 percent of the tax revenue received pursuant to

this section to reimburse expenses incurred in providing public

safety services, including emergency medical services as deﬁ ned

in s. 401.107(3), and law enforcement services, which are needed

to address impacts related to increased tourism and visitors to

an area. However, if taxes collected pursuant to this section are

used to reimburse emergency medical services or public safety

services for tourism or special events, the governing board of a

county or municipality may not use such taxes to supplant the

normal operating expenses of an emergency medical services

department, a ﬁ re department, a sheriff’s ofﬁ ce, or a police

department. To receive reimbursement, the county must:

1. Generate a minimum of $10 million in annual proceeds from

any tax, or any combination of taxes, authorized to be levied

pursuant to this section;

2. Have at least three municipalities; and

3. Have an estimated population of less than 225,000, according

to the most recent population estimate prepared pursuant to s.

186.901, excluding the inmate population.

The board of county commissioners must by majority vote

approve reimbursement made pursuant to this paragraph upon

receipt of a recommendation from the tourist development

council. (e.s.)

You acknowledge in your letter that Jackson County is not eligible to

use revenues under this provision. Had the Legislature intended other

counties to use revenues generated by the tourist development tax to

provide law enforcement services, it would have expressly authorized

such use in a manner comparable to this provision.

In Attorney General Opinion 1990-14, this ofﬁ ce concluded that

subsection (5)(a)2. [now (5)(a)3.], which permits use of tourist

development tax revenues “[t]o promote and advertise tourism[,]” did

not authorize the use of such funds either for regular law enforcement

or for extra police protection during special events or holidays.

The provision of law enforcement within the county is an

integral and constituent part of county government, with no

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special beneﬁ t or service being extended to a particular area

or property or to a portion or segment of the county. It is the

performance of a governmental duty owed to the general public

at large.

The funding of general law enforcement within the county or

the provision of additional law enforcement at special events

or during particular holidays may, in fact, affect and beneﬁ t

tourism within the county. However, the provision of such law

enforcement functions owed to the public at large, whether

generally or at special events or during certain holidays, does

not have the promotion and advertisement of tourism as its

primary purpose.

Similarly, although the provision of law enforcement at a nature

center could be said to beneﬁ cially affect its maintenance and operation,

law enforcement’s primary function would not be to maintain or operate

the facility, but instead, to enforce the laws of Florida.

In Attorney General Opinion 1990-55, Nassau County asked whether

the county could use tourist development funds to, among other uses,

fund “additional law enforcement patrols or lifeguards” at the beach.

This ofﬁ ce reiterated that law enforcement functions are owed to the

public at large and were not subsumed within the authorization for

“beach improvement, maintenance, renourishment, restoration, and

erosion control” under section 125.0104(5)(a)4., Florida Statutes [now

(5)(a)5.]. Construing these terms by reference to other language in the

statute, this ofﬁ ce concluded that the enumerated terms related “to the

actual, physical nature of the beach” and did not contemplate “activities

which do not protect or enhance the physical nature of the beach.”

Finally, Flagler County previously asked this ofﬁ ce whether tourist

development tax funds could be used to purchase all-terrain vehicles

for the police and ﬁ re department to use on Flagler Beach. The county

represented that law enforcement would use the vehicles to “watch for

persons causing damage to the dunes and enforce state laws and county

and city ordinances protecting the beach and dunes,” and would “protect

citizens and tourists and … survey the beach for erosion damage and

the need for maintenance and renourishment.” The county suggested

that these uses were allowed by subsection (5)(a)4. [now (5)(a)5.], which

permits use of tourist development tax revenues “[t]o ﬁ nance … beach

improvement, maintenance, renourishment, restoration, and erosion

control[.]” While this ofﬁ ce stated in Attorney General Opinion 1992-

66 that it was the role of the county government to determine whether

the use of all-terrain vehicles would primarily serve to control beach

erosion, the Attorney General suggested that “[t]he proposed beach

patrols appear to be designed primarily to provide a monitoring system

for activities on the beach, i.e., protecting beachgoers[,]” which would

not be an appropriate use of tourist development tax dollars under the

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statute.

Consistent with the reasoning of these prior opinions, the terms

applicable to your request, authorizing use of tourist development

tax revenues to “acquire, construct, extend, enlarge, remodel, repair,

improve, maintain, operate, or promote” a nature center, appear to

allow the county to direct funds only to support the actual nature center

facility and environs, including personnel to run the center. In contrast,

as part of their regular duties, law enforcement ofﬁ cers are required

to provide preventive and protective services to the general public,

including those who are making use of the nature center, and there

is no provision in the statute allowing the county to fund general law

enforcement activity at a nature center with tourist development tax

revenues.

Therefore, I am of the opinion that revenues derived from the local

tourist development tax may not be used to fund regular police protection

at a nature center under section 125.0104(5)(b), Florida Statutes.

Section 943.10(1), Fla. Stat., deﬁ nes the primary responsibility of a

law enforcement ofﬁ cers as “the prevention and detection of crime or the

enforcement of the penal, criminal, trafﬁ c, or highway laws of the state.”