Loading...
HomeMy WebLinkAbout1992 01 17 Advisory Legal Opinion - Municipal Funds.pdfOFFICE OF THE ATTORNEY GENERAL ~ JAN 2 1 1992 DEPARTMENT OF LEGAL AFFAIRS THE CAPITOL TALLAHASSEE, FLORIDA 3Z:Jat-10SO ROBERT A. BUTTERWORTH Attorney General suue ofFlarida January 17, 1992 Mr. Frank C. Kruppenbacher City Attorney, City of Winter Springs 390 North Orange Avenue, Suite 1300 Orlando, Florida 32801-2448 Dear Mr. Kruppenbacher: You ask the following question: Maya municipality expend municipal funds to pay the electric bill for street lighting on, and for the maintenance of, private streets? In sum, I am of the opinion: A municipality may not lawfully expend public funds to maintain privately owned streets or roads located within the municipality. You state that some of the private streets are gated while others are not. You have not, however, advised this office whether a municipal or public right to use such streets exists or has arisen by prescriptive easement, common law dedication or operation of law. Nor has this office been provided with any information regarding the public purpose to be served by such expenditure. Moreover, the determination 3S to whether a particular expenditure constitutes a public purpose presents mixed qu~stions of law and fact which this office cannot resolve. Accordingly, my comments must be general in nature. The maintenance of private streets would appear to be the responsibility of the private owners. The test for the expen­ diture of public funds by a municipality or any governmental entity in this state is whether the expenditure is for a purpose which primarily benefits th1 public with any benefits to private interests being incidental. Thus, in preViously considering the expenditure of public funds to repair or maintain a public street, this office has stated that public funds may not be used to maintain private roads. • Mr. Frank C. Kruppenbacher Page Two For example, in AGO 79-14, this office stated that since any expenditure of public funds must be for a primarily public purpose, a municipality could not lawfully expend public funds to repair or maintain privately owned streets with the municipality. A similar conclusion was reached in AGO 73-222 regarding counties. As stated in that opinion, "[a] private road is, by its very nature, not available to the public, and the public has no right to travel by motor vehicle thereon. This being the case, the repair or mainte~ance of such a road cannot serve a public or county purpose." While this office has recognized the authority of local government to post traffic control devices on roads under its jurisdiction an~ elsewhere the public has the right to travel by motor vehicles, s. 316.0747(3), F.S., now requires nongovern­ mental entities to which the general public is invited t~ travel to install and maintain uniform traffic control devices. This office recently stated that the presence of a guardhouse does not relieve a private residential subdivision in which the public is invited to travel on its streets from complying with s. 316.0747, F.S. I am enclosing copies of the above referenced opinions for your review and consideration. I hope, however, that the above informal advisory opinion will be of some assistance to you in resolving this matter. Sincerely, Joslyn Wilson Senior Assistant Attorney General JW/trw Enclosures 1 See, AGO 78-88 stating several ways in which a municipality or the public may gain the right to use land for public roadway purposes; the determination, however, whether such a right has exists or has arisen involves mixed questions of law and fact. 2 See, ~, AGO's 78-88 and 79-14. 3 See, s. 10, Art. VII, State Canst. And see, O'Neill v. Burns, 19S--SO.2d 1 (Fla. 1967). Mr. Frank C. Kruppenbacher Page Three 4 And see, Padgett v. Bay County, 187 So.2d 410 (1 D.C.A. Fla., 1966), and Collins v. Jackson County, 156 So.2d 24 (1 D.C.A. Fla., 1963). See also, AGO 79-18 (county cannot expend county funds for the construction, maintenance or improvement of privately owned roads; roads must be owned in fee by county or must be roads over which there is a public right-of-way easement for county road purposes), and AGO 75-309 (county may expend money on dedicated roads only if such dedication has been accepted and is open to or available for public use as a county road) . 5 See, AGO 81-18. 6 See, s. 1, Ch. 90-121, Laws of Florida, which added this requirement during the 1990 legislative session. 7 Attorney General Opinion 91-82. And see, s. 316.006(2), F.S., authorizes municipalities to exercise jurisdiction over private roads by written agreement approved by the governing body of the municipality when provision for the actual costs of traffic control and enforcement and for liability insurance and indemnification by the private party are included within the agreement; AGO 88-5. :0 mclcde N exclude anv tc-,e lim.tazicn on the nU:71DE'~ 0:' prize or jackpot games allowed in one nif;ht as c~u,,~y, 0, ~~1:" a-rency has provicec lor in subsection ,:41­ ,:31 The n'-l.r.'lb er 01 days d:L.-n:g wruch such organizations as are author-ized hereunder mav conduct bingo or guest ga-nes per weE'.<' shall no, exceed two. I~:, ),'0 jackpot <;r.:'I:1 exceed cbe value of S100 in actual rnonev or its , equivalent and thete shall be no more than 0::.e Jackpot in any one ragnt. \ 13! There shall be only on", pr-ze or jackpot ,)~, lOY one day of p13\' of :3100. .All other game prizes shal! not exceed 525. 16) All per-s-ans m ...oived in ~:-:2 conduct of any bingo or z-rest game must be a resident Q:' ~[-.e communnv ·...·."\e~c the orzazuzatiou IS located <L'1d a bona fide member 0:· :':-:~ orgarczauon "~OCloOr:'-:2 such games and sr.a:l oat be ccrrmensatec rr; aav wa'· lor coerauon o: varc omao or w...est earne. 17i :"0 one u.rider 2l':,"!',l:"S of age shall be allowed to piay. I jJ Bingo cr guest aames shall be held only on. prooerty owned by the nonprofit organization or bv the charity or or garczauon chat will benefit by the prDceeds. on property leased full titr-e by such orcaouauon for a period of not l"ss trian I vear. or on proper-tv owned by and .eased rrom another nonprofit organization qualified under t::IS secnoo. (91 Any or,;ar,:z;ltion or other oe-son who willfully and knowingly violates below, violate any of any provision of this section IS §:"J.:lty Df a -ni sdemeancr of the first. degree. Flor-ida Statures, Ch. punishable as provided in s 775082 or s. 775083, For a second or subsequent o-rense, the or'ganizanou or other person IS guilty of 11 felony of the third degr-ee. ounisbable as p-ov.cec 1['. s, 775,0';:2. ~. 775083 or s 775.08-1 Clearlv. the first group to which the lei?1s:atJO~ refers t.sce subsecuon (1) abo-..e. toes the vtewf ng public, Got contemplate tne plaving of b:ngo either bv television sranons (cable or otherwise) or ae medium, on cards merchants. , lhe cable television I·, is equally clear t:",<1C the second gTOupisl:osectlO:1 (2\ above) referred to in the lotteries. 'esrislauon does not Include either such television s-atrcns or such merchants. :\~cordlndv, if neither the te'evisicn stanons nor-t::~ merchants who mav advertise ':'1(. n-ne to local Merchants deere-on faii "withic either ca,e,~'J,:," of toe o-zan.ae aons pertmtted to play bingo in 2 WOL:~d De the same 113 for conformity wi::' s 349.093. supro. b.nco cannot be p.ayed I."C the manner outlined above I further observe that the penaitv Ior a violation of pla}~niO binro in a fashion contrary ~:~e sponsor:"" mer cban-s to th(' manner set out in s. 8-19.093. S<iprr:. IS :r.dt of a rtnsdemeanqr In the first degree. 'J? the bm"o ·card$ a, t~,~ i:.ilt appues only to orcaniea-rons or entiues '...-t;o are quaasec to pl.:ly bingo under the 'co,] c.abl.. TV chan~;e; til s-atute. but do it in coru-a-emion t.rier eot. ~lLO wr)l-'lc~ be awarded 1M !( ,,<: organization or an euterprtse is not aotacrtzed bv statute to plav bingo. then Its ~ ('ilb:~ TV office. Although ccde.avor In so doinz is charac-enaed a louerv as proscnoeo by s. 8-19,09. F S One who '.~''':', Ir. Dr"",,. to pi,,)" the v.oiates tno.t section ;$ a'; least !,'Ullt.y "5 ,. misdemea,.""t and poaaibly 015 ~ felon en <et w;th th", cable TV Pror.i!:'ited lotteries in rlOrid:{ c<.'r,-,'sc of three eie menrs: A prize. <In award b,' chance. and conslderaticr: T.-,~ clear authori~:: (or this concb,iol'. ",a:: be flJuna m the case& of L:tle R~ver Tne,,:re Corporatio" ,. :)tute ex rei, Hodge. 13.5 Fl,1 651, 185 So, 855: and 8:.lckburn v IppQlito, 156 So 2d 550. I;r:rtajn endeavors rt is obvious thO"~ a pOle lS to '~C awarded to wr:oXcever p:ays th~ ~3me contemplated c<. this promotional endea'·or It is equally ob\"iou~ [hat such pri:~ 'Nl;i be dlstnbut"d by ,~3;rued to pr~hlblt or a chance filling out of a bin~o "J.d, tr.e conslL1er3,:on. whe:"! v)~wed in light of the two -"-..:thorit:~s ante, i" equali.,· Db'.10;Js, It seems clear t!1,l( d:e promotiooClI e:-tdeavori:t r:u:ill<bk cIvic, :\~~r Si:nJiilr i\ctivit;es. contemplat",d b.;' t:te i"quiry !nade of ;-o'.:r o:Rce. I:' Imp~E'me,,~ed, would be in violatIon of Floric;J's I~ .... against lorter:('s . . J ;·":I:s or rr.o..-e fror.t 'r.e ~":lre proceed$ ',:. su~h organization~ " pr.'~eeds from l.'-;a 1)'8·8~June 15, 1978 ,:sol"'e~ . .J€' SH OL:~ above. i:~ COUNTY ROADS~ond::iorJl'C u:Jon the ;n the f.Jrm 01' prizes. Ll\llT.\TIOXS OF BO.-\RD OF COCXTY CQ;\DllSSIO'-;ERS IX .'J or .>:".';;SI i, 1\l1ow"rl E:XPE:XDlTl'RE OF PCBLIC fV<DS FOR CO\"STP.t"CrIQX, i·.<1 have WJt been pai,~ \[AI),jEXA:\CE. A\"D REPAIR ',,'~e s~,,,!l at the neH '.It ;'Inr charge to the , ), HJ6~r! S Ryder, J/ilTlo" C%"ly Attc>rtley, Oco!(I'r,ie~ over from the ~I ," r:o wc.~· ext,"r.d; I qL'ESTIO:'\S, 1. ',flly the buard of coun tv commissioners of a noncharter coun tv expend pubjjc fur,(i.~ ior N'l1~t""rctinr;:: ;,..nd mailll."'inJnq any road where -utd r-ouz-tv dues n0: b,n' '.l specific dedication to th" public to utillLe said road or <.aid county does not have any owoe"hi" ot the riltht-of.... ay for 'aid (o"d. W11d" t::JC Ulun,y has nOI maintained ~D.ld road for a per-led of 1 yeun;. or where the pu ottc has no prescrtpt.ve rig-rot for the utiltzattoe. uf F:iirl rearP Z. ~lay t he bonr d flf county commissioners of a nonchm-tee county expend public funds for the rnain ten aricc of l"oa<.:.:< in subdtvis.ons that. w ere rc cor dcd p ricr to 1925; J, :'llay the board of county' commissioners of a nonchnrter county ""pend l'"blic funds for ~O'L3bli-~hing and constructing roads in subdivistcns which wer~ recorded prior to 1925 where there is no "pedfic dcd.ication to lhe public for said roans or conveyance to said county of a rig ht-of-way 1M Si'-lU roads? L'n:e"s a ro:;O /5 a county road open to and set apart for the publ.c-c­ cuch :l.S by ecqutsitton 0: a p-escnpuve right in R road b.. the members of the puhlj .. in In", count~·. by operatjo[] of law under s. 95,36Ull, F. S.. or by tbe p!'i~ciples of common law dedicaticn-c-and unless the expenditure of public :unt'ls for the earl,,-truelion, nUllntcDlU1C(', or-rcpau-of sucb a road would thereby sc rve a county public purpose. the board of county carnmissicnet-s may not experrd -public funds for .u~b pury,:,~", '"het:'et ~'.jch roa,],; are desrcua-ed as I>etng dedicated to the pubtio or: a plat r~cord('d prior to or after 19~5. 1'J c-oer fOT a ooard ,J: CJ1.:J1t.'· ccmrrussaone-s ,C expend aublic fends fer the c[,~.Sl:<:'~l:~l; .:n:d rr.:.\,:;:e:n!lCC of a r oac. ;r.e rJ,,:::l ;:-'-;~1 "~ '" "'p"bllC" c'''e. I.e.• n-e expcnditc-c "l:..'~ ~c "or 3. P:..l'J):c P.l~I'QS~. Tl'e f\lnl!",cer.u~ ~ri\~r;on f.~r tin" cxpenditu-c IJ1 cour-rv f,,--,d'i is that such c xpcncn.ure WId serve :J. cocntv 2S ccnn-ested t.J n crrvate cu-cose. Article vlf s. 1.S:a:e Coast. ;:J,p,iedh iimlt<; ,~." i,-,.."o",-"iJ" ,,~. t"">;~ ~::c' t;-,e expenditure cf tax revenues to P..lJ!;C purposes. A private ~0Gd is. by Jt..S verv nature. r-ot availaoie tc the public, and tne pabl.t-r.as "c tiiin, :0 c-cvel bj rnotcr ·,'('~.;cle rhereon -;:C:s be;:cg the case. the reaair or rnairtenence of such 2 road rannor serve a p~b2;c 0T rcunty pur-pose. .Auo-cev General Opioicn 07.'.222,J C! Escambia Coontv Ed, Ccuntv Commrs \' Bd. Pilot Comm'rs. 4:2 So. 697, 701·702 W:", 19,)6): AGO'S O:5-:)~9 acd 059·i33. Sll(":~ a rc,aa;::~ :.:00 cescr;iJe would.apr-ear to.be ~ private one, ani-ouch '.!1e aut.hor-it y of a county w::."1 respect to t particurar roac er.c ouesuons as [.0 w l-etr.e-the countv has acouircc il ~:~nt.,~f-w~,:·Or-an e;;lsemem. for count­ pu~iic '-N.d P"'-,C~<c' ere r:-je([::,<.;e"~l0::~ 0f13.'", and f~ct wh::n r:'l.l.H be determined tv rhe C01..:';5 In appron-rate advo-s.rrv -r-oceedinrs rnrcated for :~"'t purpose Thi~ c'ifice 1" ::N.'i :'c.c:·nrr:!r',k 'c'Ni" "".j fie' "'~:!l i~ "i,lwut power:e" adjudicate fuch matters. E.~·.. AGO'~ (7.<63, 073-,)(l'J, "C1Q ,)71 l;-;:; Attornc-v Genera. Oo.r.ron 0;-,'3-222 sets f<Jrth several W2.,'-S 'J[J ",';-;;[:. a :O~n1.\· rr-cv 1l-q'ITn I::'", rrch: '0 'c3e 1~I.:.j ;0:-rocnt.y public roadway purposes ad l '~li";i briefiv su-r.manze -hern. F'~:;:, :he p\;J~k:;;.s d;stir.~t Ircm tr.e rountvl rna\' acouire the rraht to use Land as a roa owav h:: lwescTiptiop. !d, H" Downin!: v, Bird. 10-5 ~.(}.2J;',7 "i-t·f.,-}-;fl3 ,~;;.t\l. ::;~.li!l v. :'~::;~er. 3~6 Sc2d 139. 139·HO (1 DC..\ Flu, \9,71 (BOHr. C J, sptC. COIlC.): Or-ange .s.ossom Hi.Is. Inc. \", Kearslev 299 So.2J 75.76·7; ,:1 nc A na..19-;~!. The last ruen.iuced case 111V?h'mg a prescriptive easernen; nv members of the pub:.ic In :-'!ar:on Countv See a15Q I El:;olt, A l"rectise on the L:J,,"-' cJ l?oa.d..' a..,d Streets s. 5 i·Hh ed. 1926). Seconc. a ~()\;rlt\· ms v ac xnre a r'ght·of·....-av C'lJ land !C'f UH' as a publc ~oad b"l' ooeTatio~ d !~W under s. 95.3611}), F. ~" ,he ap~·!Jca:ion cf whch tc the t,,~l.$ of a g;VlO'it ';SE i5 1,:, f>C'.~1-,' 'v th.. co"1""" j;;,!-.'. AGO s U~~,1';6 aDl: 'J~3·::o; :s,,-:::le a~ tO~. 337,3l(lJ, F :::, ncaul!ht ioruxrd C$ s!.'j.361(11, F ~ '1977'\: c/. :3;'1~~ D~J:)t, of Tr.insocrtat.cn v .or.ua L Co,,;t R" 230 Sc ro ~:;6. ,28 i3 DCAl, cal. dc,~;ed. 2~9 SO.2d .sS·'-,:Fla ie-o. TI::rd. the," can be cO~.~.7:0~ Lw ccdicanon of land fer use :<5 a ~\,!)II~ roac h\' expre~9 "urd or uneou.vocal act of ~~.t ee-rier t nereof. coc a'cd wit;] nn ~C[~~t;:~cc =,',' t~e Dubjl~ -! toe dedication. such us by use of ,~'" .ar-d. Eg.. ClI' "f ~fia:>lJ ,,'F:rcnda t. Coast it, ~.\ :;(J 726, 729 {ria 19201: ~;ainor' Hobaie. ;~~8 se.as 203, aos ',I n C A..', app. d,.,cr,!$wa, 225 So.Zd ,,30 {Fla. 1969): .ico 078·63 Y l'ur l:rst question c s staten I~ answered '.'1 the nezativc ..vs TO QCEST;O\, 2: I assume for DUr.lOSeS of this quest.c-i l',,;r vcu re-or :o il o.ar reco,.d"d prior ';0 1925 C;J(I~ which a road or roads are destgt.aced as being dedinr:ed to t)-,e puolic. Chapter 102'5. 1925, LllWS of Flcdcis. was th" ":;,St ]e~~lst:\"e eire" ,0 regulate the ti!l:lg for re~~.r"d C'£,~:'lllDS and p1!tS ln Florida..-':t:or!,~,\' '~,,~,er""1 Opinion 0-;1-3D7. Section 10. Ch. 102,<,. L",o.lllW5 or Florida. p,ondeo as :o.,~-.'·s Before said map or plat shall be presente a to the County Clerk fer record, the owner or owners shall cause to be pla ced '!len"0n a certificate of a ppr oval by rhe Countv Commls~IO;;ers, Tcc-c Board. Qr Cour.cii. or ;!-:e Board of Ccrnrmssioners .in mu-ucipahties ;'-;a\;,~.,;; a co:-:;mis~lOn iorm of .,:overnmeatl or their accredited representatives. b vir.c :;,;,rls<::iet'on over l~e land described In ::'e s.ard map or plat. HOiL'eI'er, s,.cn c,:p"o:.JI she!1 n(': !J,~d the CU~"/.' C(imr-:l-tsioners, TCIi:n Bee-d. Ci:y COU'1CU (',' 8CJord of Co-crrnxsioners to open ;,;..0 and ker" tn repair Q'I." pa"'·"l.o dedicated ~,~ :he public In any men or plat so o'[ered. cui :hf." may exerOtr 5~,ch reri; c: G~_' lirr.c .Emphasis suppi.cd.l c·~" effect of the above-quoted statu-e W'"';; to ~ecu;~e "il plats rer orced attn the erfecnve care of the act. J',<r.e 11, 1925. set's 1:S, Ch. 102;5, ",.pm, to be approved by the approtmat e ecvernmental bi)ri~" lf the plat or map i, wholly witai-i a ::-'-J.nicip2Jny ar.d is 3.UDrQ\'N~ 0;1 the o-oper i.H.I' officials tr.en It does not ;',:11'" ,0 0" a;>?ro\,o:-,; bv t~e Board of C" ... umv C omrrussioner-s Ji ahe map or plat is of propertv no: wu nin :l murucipal: t v then [1-" atioroval of th", Coucr.... Comrrass.oners should be ]'.:-.<1 .At-omev G~'1eral Opinion of \ray 5, 19~6, Biennial Report at' the Atrorne v Ge'lera!, 1925·1926. p­ 385.) Accord: Attorney General Opinion ll71-30;. nus. the approval recurred uv the foregoing statute d-d not operate as an acceptance of an auernpted public dedrcauou by plat. Following approval of any such map Dr plat, the exercise of the right to arfu-matively accept the specified dedication could be effectuated by for-mal or informal act of the county or by use by the p ublic. in ccnfcr-rarv with the princ.ples of common law dedication bv plat, See AGO'~ 078--63, 0,5·309, 1)59·133, and the aurhortcies cited aud discussed lr.ereln The Supr-eme Lourt of F1o~:da has beid that , .. fa 1 common-law nlat has no er.!!,: cs a convevez.ce. and an offer to dedicate .berebv created -oav be revoked b, t r-e owner cr r-is gr aatee at a!1Y tlme before e creptance by the pcb.ic. After a common-law dedica aor; is once accepted by tlle p-rbhc. it is irrevecab.e e:-:cept with :;,<, consent of the p-,lL,UC and of .f-cre persons who have \'e~:ed ;-,,:;hts ir. ,,'J";' C:~'diCatlOn, Tile ;,.c~epta.nc" pf a common·l"w ced.iCiltJOD need not ;~~edia;.ejy ~·cUo ..... th", otrer to Qc'dic"le. but must be v.ithin a reasonabit time ami bcfo~e Y>lth<i:'llW;l! by the offerer. What constitutes a re\"oclltlon of an offer to dedicate depends very la,gel.,' :Jpon the c;rcumst.anees aDd ;s USL:al!y a queS\)Dn of fact 'C:'y of \Lar.u Y. Flcrid;> E, Coast R.. 84 So, 725, ;30 (Fla. 19:20',~ Accord: \farion COULt\" Y, Gan-. 58 5o:2d ,49, 75D-~51 'rIa. 1956); Winter Y, P~nJ{-" 15 So 211. 213 (Fla, 18'il4.1. The burden ofpro\'lng accepw:lce w!thb a r~as()Dab]e time jies with the governmental body asserting .>.arne: Aceeptance of such ID ot:er of dedication may be oy fu·:-'lal re~(llu:ion of ~he proper a:':chorit;es or bv puolic user Th~ b'-lrcen of p~o\"J:lg acceptance of IIIl 223 • '." ·A· c' • "J:le~ to t:·.~ publie to dccicate .ands I,': streets. 3.!le'·', 31;d parks IS L:pan .he LvlC1Y or mun.c.pal.tv <,~~<,r:in" 'I. :\) dedication is ..omple te \J~!ll "rcer'~.1nc" by t:oo pu;:,Jic, [City eli ~rli<m;j v r",erlca E Coast ,-t" »i-pra, at 7~9,1 11c-co~d: .\br!Orl County v Gary. wpm.: K~rkland v, Cit.,· of Tampa, 7S So, 17. 20·21 Iria !~!Sl .'1., '-.. roa-ter of'thr-]~,v Fn\'€rnir,g "ri\"l~c pro?>:rt)-" :"t~;·~~l~. d~ .voposed to the law r ovcr niz-g puhac ricd.cations. purchaser-s of p.ouec scbriivision Jets ""<'0 take :~ a vare -r.ade with rC:HenC8 t c the subdivision plat may arcuire :l right cr r-ights in the nacure ,j; <in easement ....itn regard to r-oads cr other";J'-""l'" ;'"~,,, d''''I!'',,:~d or. ~:',d rbt. r:.;.;" Bert-ham v, D<iV1S j~Jands. inc, 87 So zd 97,100 rF'ln. 19561 .\fcCorquodale v, Keyton, 63 S12d 906. 9Q9·~1l (F1a 1953\ AGO 078·63. Sucn an casement r.:ny be usee by the holder \~en·of in a mariner consistent with :m established public user o( such roari~ rlT ar~"'s, ...~'" \\'iJs~n v, D.mlap. 101 50,2.1 801. 50-1·605 Wla, 1~51i): see Price v, Stratton. 33 So, 644, f~46·641 lob.. 1~j(3); Porter ,. Carpenter. 21 So. -:58, ,OlD iFla 159~\, Dr ouch.) priva.e r:g-r.t TT:}y ar-ise and be exercised iri the absence of public acceptance cf t-ie dedication. such as \~_" r, ..ht. til rt".~koe US" of the r0:Jd or-ar"" .~nd rhe ";"ht .o keep the -cec or arc-a open for public use. E.g., Powers v. Stobie. 60 So.Zd ;38, 139,740 .Fla. 195~\ F>r~(b. E, Coast R. v Worlev, 38 So. 618, 623 rF'n. 1905); cf Sr-ith Y. Horn. 7:1 So 435,;35-4:37 (Fla. 1915). He-wever. 1091 hcve stated hcre.n ~t '" "at t'",,,, pro,..inc~ of l;'lS (>fnce but thd\. '-'1 :~,e cC,u.Yts to determine such questions of fact and adjudicate such r:gh:.s. Sec City of :\liaml \", f::J~icia E. Coast R., ~:,pr(1, at 7l0: c( Escembia County Eli County Co-nm rs v Bd. Prlor Ccmrn'rs, supra. at 702. 70 summarize the foregoing-gener-al principles of 13.W with spec-Be reference to your o-eose ouesucn. a CO\:nlY ma.\' not expend ,eu'::;lJ: :-",::(1;' ior rr-aimencnce 01 r oads dei] ~!\:;e:i as n;< "in" been dedicated to the pub.lie C~ a plat recorded onor to 192,~, ""lp.s5: T:v, ';',,\mw h"" f-:.rm,,'ly o lnC',,'rT'.l3.:'Y or by P;';LJ':c user accepted acv such offer-of ou-iiic dedication; the county ~a! so accepted suer. offer prior to revocation -hcreor ov the .tedic.itor or his successors in interest: :he roads ::1 question are m fact used or to be u~ed .~s ccuotv r'\IbJi(' rn"c~; ana :hr o:p~n:J.itu,e Df .>uc;' fun~~ woutc serve a cournv rn.:.blic pu-pose. AS TO QrESTIOX 3: .'<ly repl,' to yc,ur :irst at:>d se((JI';G q"es~ior.s ~6eq~:l\eJy ~nsw("rs y,'ur t,ird 'j\.:estju~ 3nd it the:efore requ:rcs no spedfic amwer. 1'178-89--Junc 15, 1078 ELEcnO:-t U.W POWER OF A'ITQRXEY :\'QT ALiHOiUTY FOR SIG:\I:-"G . VDTER F:£G1STRATlO:\, APFLlCAT10\ Tw: H .•f€r~m€ U<J"'S . .\k"o:,:o(> ('OUnl." S"pc"l'lsor o( £;'ec:'I;f'.S, BradeHwn /,rp.:Jc.n-d t .....: PUlncia R. GI..asoT(. As~islan: .11:ome,· I~;enp"al QCESTIO!'o": Maya daughter who bM been g:runted power of attorney for her mother sign the application for VOter registration on behalf of her mother? SC)1 ...1AHY: In the absence of statutory authority, an agent may not he appointed 10 re~ter ... person to vote. Therefore, a daul!hter who has been l!ranled power of :'.~torney for her physically and mentally impaired mother is not aUlhorized to sign an application for voter re~stration on behalf of her mother: hene.., a registration made ill such a manner would be invalid. Your question is answered YO',H :el!er advises :11c;! a "'other nas requested t!';·,t y ~;other is 89 years old, bcdr: fcoulues.' although sue h~s t unable to si~ her narr;e or e­ ~~Jat the daughter WISj'H'S :0 mother, presumably as her IT <w has ":>een granted, This office has ~tatec on p: hI' the courts, pro\'ides assent ',,'ayl' rp?rhp<1 ,h" "p:oe ~f ""q Art. VI, State Const. Toe on,', Const.: Xo person convicted of ~ mentauv inccmpetenx. ,,' of civil righ~s or remove Accordingly, .n AGO 0/4-1 Center who was otherwise ~."rtion. I-'rovided lila; ~.I.(f, Similar)v, in AGO 077.1. th ph"siool:" inconp~ten, ccn t: rcg;stcH'd as an elcctcr ..\: Attorney General Opinions de~cnbed in vcar rcncr l~ c: ", ..ntal irnp:iirm>?nt, j'lr,wiri consider arion, therefore. .s " a-tcmev. may make an ~;JCl!]t S(>~ s. 9i05i. Y. S. provk:: subscribe to an oatn; 2cnci "h, previously regJstered to \'ot( e~!>ewheTe, he has rea.\Jcst~d It is well estsbli~hed t~.at the general rules governing a:torney has been defir:l'rl P.S i!;Jpuint.;; anothH as hi9 "6": acts or l(]nds ol ac:S 0:1 beh, F. S., ptoviding that a pri~ c.~(lcuting a pcwer of "-,tcr",, An agent appointed pur~u". O:le can lawftllly do indin::: p~rfC1rm~nrp r;;nl"ol b~ d~'.f>' Estate, 330 S.W2d 361. 350 ,­ lli (Del. 19521~ Skala ", ' QPcisional case :aw are in hC s~ch personal CnafactET th",~ statutor~' autno~]tv '25 A-:;.. '_ C'Brien \" Fuller, 39 A,2c:2~ ~Jpra, \Iv e"amination of thO': Flc, ~o 'delegate w an agen: the' GonUllc. v, St"ycns, -I.:n S.\\ a Texas statute which per.T f"mih-member applyinll: :c~ rnllst."hg regi'!ltered 3':; ',0 pi., Registra.tion of voters, mOT0 registration made In allY ot" County Commissionen of S, that your quest:on mus: oe , ]::1:' GEXERAL -ed tug~ther ; of Florida. as amended hy Ch~ .ved sovereign immunity f,om ir subd.vis.ons,': to the extent .tv for cae state and its agencies ~e!l'; by one person or 5101],000 -urreecc. Section j'36,28'5i, Ir; subdivtsions shall be held ~u:re:ec ;H a result I'>f any e-nployrnent or function. d tanh or with r-ialicrcus .;;£,l! disregard of human 'y limitations set forth in -nent which j" rendered In or agent of the state which iOn within the scope of his v s. -;'68 28<2) F. S, to include judicl": bt-aach. and the dnd m.imc.aa.lities: and or e eenc.es of the state. under s :374011, F, S" a~ a L'~' \'.1:1.:r::11 R"'S<1111"Ces. Sc<:t.iQn -corution shall he vested In a .c :J~. the Governor:" Purauarn co-vers :!':<.It include, but are .! ~:.;",d: :J lease. levv. acquire ':"l::oi ,Lsw.iss emelovees: t~ , dCC;!.;lre state lands: to exact '~.d r"!f'.'.o.tions go' ermng the Canal Aarhority ;s publicD. .ovees a-e state office-s arid -ursuanr :0 the Governmental s.. ;!IJ25161, F. S., the Canal Resources by a "type one" osfcr" or- of iln existing agen('y mcnons transferred cr .epartmeat. Any azency !I beecefcrth exercise its subject to review and oe"t.i of Lie department. , eli!f.blc to par-ucipate ,n the AGO C8·166 ("the Canal f" X~tur"~ R",source~ and us -nmem."). AGO 074,1 j (Canal local government within chp nd Reporting Actl. lr:ty is a "state agency or F. S. Therefore, its officers. eli . O:'9·H Q79·14-February 16,1979 MU:"l'IClPALITI£s'--PUBLIC RJNDS :'vlT}iICI?ALIIT SOT ACTHORIZED TO EXPE:-'--o PCBUC IT:,>;OS TO REPAIR PRIVATE;.Y OW"ED ROADS OR STREETS To: Roger-G. Saber50fI.. Cily A ttomey. /)ei.'ny Beach Prepared by: Jerald S. Price, Assistant Alterney General QUE.STION: Can a dey spend public funds to maintain privately owned streets in a residential subdivision located within tbe cit)' without ~'ioialing s. 10, Art. VII of the State Constitution? SL:MMARY, A municipality ma,.. not lawfull), expend public funds to repair or maintain privately owned roads or streets located within the municipality. Any expendnure of public funds must be for a primarily public purpose, with only incidental or secondary benefit to private interests. I must point OUt, first, that only the courts, not this ~ffice, can officially Ce!ermin.. and ,'-lIe whether a particuh-expendic'-lre of funds by a rnurucipauty viclates s. 10, Art. VlJ, or any crier provision Qf the State Cocsdtunce Short of judicial adjudication Qf -his :~att~r, it IS primarily and initially your r!?'sponsibility as ci:)' attorney to advise the city council as co the validity of a particular expenditure or the Iikelihocd that it might be ruled unconstitutional by the courts. YO'1 stated in you; letter that the roece or ~tree~ in question are "private street!" and .hat they are "prtvatelv owned," Given this premise. it is certainly rc be presumed taat -nain-enance or repair I)f ~\lC'h privat() street" would be the responsib.ury of the private owners thereof The test for any expenditure of public funds by a municipality or other zovernmental enutv in this state is wheth~r th~ expendllure 13 for a purpose wtucf ~c:m:::riJ:: oem:!J!,s the fUbliC. with anv benefits to private interests being crdv incidental J::d secondary. O'~e[J v, Buns, 198 SQ.2d 1 (Fla. 19€.7), I assume t.ha' in making the ';-l..,mLS r"f..r"'\:"~ tc "pri'-...te ~tt ..e:s" 3:lct "I:rivacely cwcec streets" in yo\,;r letters you 'iave determined that no municipal or public right to use of or easement over such roads .r streets eXlsts or has arisen. !uch as by prC'!CriptlYf' ea,,~ment. comm~n law decicacion, .r operation of law. See AGO's 07&88 and 073·222 for discussion of the several ways in ":-:ich a municipality or the public (as distinct from the mun;cipahtyj mllY gam ,he fight ') use land (or cubE, roadway purposes. In any event, such deterrnmarions. as pointed )~: m AGO 0~8·88, are mixed questions cf fact and law which this office canLot .ie-ertnine. If any swh fac~ors exi3~. it 's your responsibility to establish them and to I~ol)' to them the legal principles referred to herein, I B;l~d on you: staterneut of the facts invo;ved, y<:>ur quution appears to have been ,~~wert,d by AGO 073-222. Although that opinion concerned maintenance of roads by a "..:.;llY, the home m\e powers of municipality are of no real ~;piJticll"ce :~ere, a~ the e' ,l':er at issue is controlled by constitutional law and the fundamental doctrine of public : r-pose. in AGO 0:'3--222, the question was, "May a county provide minor work or '''"a,r.' on private r-oads lind expend county funds therefor?" The answer to that question '.l~ In the negative. It was stated in that opinion: The fundamental criterion for the expenditure of county funds :5 thJlt such expenditure will serve a cc.mty as contrasted to a private purpOSl!. Artide VlI, ; 1. Stat'" Const., impliedly lirruts the imposition of taxes anc the expenditure of tax revenues to public purposes. ,s prmctple of constitutional law applies with equal effect to municipalities and "';~,I('\\lal funds. It was further stated in AGO 073-222 that "[il] ?rlv-ate read is, by its "cv ::ature, no, available to the public, and the public has 1]" right to traoel by motor 31 I 0,9·15 A:'\:-'TAL REPORT OF THE AITORXEY GEXERAL vehicle thereon. Tr.is being tne case. tr.e repair or rr.amt enance of such a road cannot Sf'rve ~ public or ccunty purpose.. ':Enl~hasis supphed.) In U'Xelli v. Burns. 198 So.2d 1, 4 ,F1a 1967L the Supreme Court apphed the crohibizions of s. 10. Art. IX, State Const. 1885 ~the predecessor of current s. 10. A."1:. vrr. to a proposed grant of state funds to the Junior Chamber of Comm<;>rc<;> and ouo:cd with approval ttl' follo,",ing analysis of the public purpose docc-ee as stated by ine trial ourt: It is only wher; there is som.. clMr'y ,d'm~di.ed and cc"cr'l!/t' public purpose as the primary objective and a reasonable expectation that such purpose v.'lll be substan:iaUy and effectively accomplished. that the State or its subdivision may disburse. loan or pledge publ.c reads or propertv to " t'lcn.~ov ..rnm",n~l "ntity such as a non-pront corporation .... (Emphasis supplied.] See e.sc Brumby v. City of Clearwater, ~49 So. 203 tFla. 1933\. wherein thp court found invalid n contract entered mto by a municipality and a private individual, under which the muareipality was Lo dredge a channel leading to the private Individual's place of business. The court found such an expenditure of municipal funds to be violative of s. 10. An. IX. State Const. 1885 (which. for ttl' purposes of this opinion, was essential'y the same as present s. 10, Art. VII. State Consi.j, as being for a primarily private purpose. C{ Padgett ", Bay County, 187 S~.2d 410 11 D,C.A. Fla., 1966): and Collins v. Jackson Count;'. 106 So.Zd 24 11 DC.A. Flo , 1963\ ir> which, alt:lOue;:h :he issue had become moot by the county's acquisition of title :.0 the roads and incorporation of them into the county road system during the pendency of the sun. the District Court of Appeal emphasised at 27 that its conclusion therein wag "not to be con£trued as condoning the expenditure of public funds en pr-ivate property or the abuse of discretion tha; results when public funds are expended for purposes other than ia Iur-merance of )av.iu.l objectives serving the public necessity and convenience." nased on cr.e above-cited author.ties. I am of the opiaiou that your question as stated should be answered in the negative, The expenditure of publ.c funds by a municipality to repair or maintain prusote streets .In which the municipality has no property rights or interest and over "'Iutt. the p'..:olJc r-as no easement or nght to use (or roadway purposes or to travel' would appear to cor travs ne s. 10. Art. V:r. State Const., and would not meet the test of being for a p~r..ar.:y public P'J1"~OSe ",..nh only incidental private benefit Q79.1S--FebTUllry 22. 1979 COMMUKITY COLLEGES LOCAL Bl'ILDIXG AXD LICEXSI~G STA!\DARDS DO NOT APPLY WHEN CHILQ-CARE CE~lER IS OPERATED BY COLLEGE AS PA}tT or lTS EDl,;CATlOXAL FACILITY To: John W McWhirter, Jr , Attornn', Board of Trustees of !-lillsbor'ough CommunIty Cc!lcge, Tampa . Prepared by: Craig B. Willis. Assistant Atlorne)' Genera.' QL'ESTION: May Hillsbornugb Count}' require A ",bi1d-c.e.r-o= center operated by the Hillsborough Community College l\$ an educational facility for its child psychology and early education students to comply with local licensing standards promulgated pursuant to lIS. 402.301-402.316, F. S.? SUMMARY: Hillaborough Countv may not require the Hillsborough Community College to comply with loca.llicensing standards in the construction and operation by the college of II child·care facility which is used as an educational fadlity primarily to pro,,"ide child psycbologl' and early «ducation students ",';th , participa.nt studies. A promulgating the State l Facilities Construction. ll'gislath'e exemption for till other state, county, C codes. inteJ"PTt!tations, b building permits and ord Your question is answered in C:-;;;)p,er 23~. f. S.. establish '. '..form Building Code Ior Pu ::-_~S!"ction (1) of s, 235.26 pr­ ..~ ~,~tiolJal Iaciiiues: All educational facilities :':niform Building Code for he exempt from all state. c .merpreteuccs. building pe ..tld ordinances. -:,",.;s exemption is reinforced by ~ ',C uniform buildir.g rode­ (9) The State Unifor-m Construction shall be ve th other code adopted b)' abo, construction of educational and whether adopted by general Jaws of local applic ~onftkt with this seccon. Together, these two subsections ~·or the construction of edccanci ~'JSt be clearly expressed. Sel:tiD~ oloQ2.301><l02.316. f. s ;:>rDcedures for child-care facilit standards meet or exceed state "s-enry to license child-cere fa' promulgated as local building St ~t.anda.rds I!Stablished by the D, 402.307. Thus. the local etendnr ::1unicipality to .municipality necessarily be wufonn or consist uniform code. YOIl que9tion whether the lic( can be applied to a child-care fac. \~ being used as an educatiom ;>svcholDgy and early education pa·rtidpaot studies. I conclude tt be applied to educational Iacih BwJding Code for Public Educat A well-estaolished rule of sea­ language is not applicable to tf enectmect m\l.l:lt clearly and ut; Brown. 555 F.2d 407 ~5th CiT. 1 19421; State v. Love, 126 So. COIUltrll<::tiDn •. 62.01 (4th cd. 19 implied, that the provisions of $! or its subdivisions. Therefore, tl­ ccmmunitv eoueze operating a whose primary purpose 1& to bel I, '. ')L"h"ol',,-.!"rd ,I",,: jl'",,:mt (,j " from [orrn er rIO or corunbu­ for ,,!.-cti"n t,., n', d"e~,th '" f eorn former " '" conttibu­ fllr eleC'tinn to riir<"Ctlvor , f('r t !H.'". )" lei)''' f' l.'. If ,lll\. '1. <'Itl,,'r ICc" till.' nee<',"!' f,,, "r thl' ddC',ll "f tiL" '1',· tIle' Jl'lrp""e 1,'1 '''\Ct'r to hl' ,:".-nt IL) ". lIup.ll~n 'K'L'Oun( :: 'lJ11 H \~ll tn."" II rer. II,"pp",,,d and i, 11;,jfll.>rlll;2-]D7. A. "",t'"~" "ftreer) or :)'.~"k» il"rv i" a.nv ,I-i,:\'}\ 11.19,52. Thert' Wl'lll, to 1,·, , rna, he spent fr" ,,!.le\-, Or to rcqctn­ t , fnr{'clIl1p"igninc: 1;2,J()7. 1 rc'p,nt,j,; rt"luirc"J "j make "0 [",thl'r ",L1".lI<.b~·,. I.. n:i,[.lti,,' :''''SWll ,'!~d to the' eledion :pl"'''''.\ '.I'''',lion., -\.'\.\.l.-\L I\EPOkT OF THE ATTOR,\EY GE:\ER,\L 07:3-211 073-211-Junc 20. 1973 COUl\TIES \1.-\!:,\TE\·.-\;"';CE A;"';D REPAIH OF PR[VATE HO.-\DS To: II'lI/1l1' ,\li"tm. /1,'l'rescntutire. 7th Di,lrict, TtliloJhassee l'reparf,d hi/ j"" DIlIlIl. ..\,,-sislant ..Iltonlelj General QL·ESTIO:\,: \L,y a county provide minor work or repairs on pri,·~te road, and "~p...nd cULmty funds therefor? Sl'\I\I.-\f!Y: A ~ounty cannot kgally provide minor work Or repairs on private roads and cannot upend county funds therefor. County wad funds mav he expended onl ¥ for the construction, maint"nJllee, or repair of public roads which are part of the C{)unty road system. Sedio" i:ZSOJ(I)!",i, F. 5., authorizes the count~· to provide rrJ,Jds, and {i1,'j.O Ii I ltr l empowers the ,--"","tv to lev)' ,md collect taxes and ,pe,ial J." ...ssmeuts therefor.Th" b,,,,,d of countv conurus siooer s is vested with control uf COOl lit" roads within it, Ulunt,·. i"dl"ling 'th<: p,)wn and dutv to maintain ;lIld ,epair s".:h roads. S"d;' '" :3·1002. F. S. The maintenance and repair costs Me paid from cour.tv funds. The fll,,,lall\('nt,,1 criterion for the E-\penditure of county funrJ, is tlut such npcnc1,t"IC w,[1 serve a countvus contrasted to a priv:llt; purpose..Article \'1[, ~ 1. State C,,,,q, uuphedlv limits tit", Imposition L'f taxes and the c\ppnditure of tJ.X r.-venue s 10 pubik Pll'pOW~ Sec City of Daytona FlecKh \'. King, 131 So. 1,5 (FI.!. J93-'», whnt' the Fl"rida Supreme Court quotes Cooley I.", T cl.3otion. Vol. I. -Ith Ed .. p. 212. paragraph 157 ~IlJ pp. ,181 and 382, paragraph 171 ''Puhlic purpo,e of Tax.-It is the first [,'qui,itE-of bwful ta<3.t,on, that the purpo-c IL)T whidl it is laid shall he a public purpose. Statement of HIlIe.-lt is implied in all definitions of taxation th'll ta~e, Cem I,,: levied for pl,!.>lic p,,'p".se~ only; and thc ,,,I,, that taws call b ... I,." ied (lIll, for puhlic nurposvv i, '" well settled that alen;;h:,itatll)ll'lf d"Chl"'" ", holding IS unnecessary. Tlli, Is said to be 'an IIndE-rl, il\~ prine·;"k "f our gon·rnrnent.' Likewise, la~J.tion for ,>the' rh"-ll puh],,' 1'\I'p<l'e~ is .rtaking of p,operty without dut' process of law, within thl' ITlt".,nll'J!: of the Fourteenth Amendment; and ts J.!-" pr<lhihited, it is s.ud, b\' the pmvisron of the Federal Comtitut inn gU.lranl<·"ing to e,'cry Slate a rqlllblieJll f'Jrm of gnve,nment." Sa al,Wl, Green ". Fra7ipf. :'.53 US. 133.138 (1920), wht'rt'"th" Supreme Court of the l'nikd Slate, >aid; The clue process of I.Hv cl.iuse contains no specific linutnnon !lPOIl the right of L"ati"n in the states, but it ],J.' verne to he settled that th~' a',th"rit,· "f tl,,· 't"ks to tax dncv n,)\ induJl' the right to imposetaxes fu, 111,,[(,1,· prl,ate purp'>st". SPt""klll'~ Jhont public' (ur countv l purposes. the court, in Padget! v. Bay Couut\-'. ]!j7 SD:?LI .1.\(){I D.C..-\.F'la., 1966).,aid IhJI "[1[h ...streets were for pub!it:' use, ami the tb! i~ not as to how m'lch use is made uf the road, but whether it is available to the p"hll<;:' :\ pri,'att· road is, b:. its vcrv Il~tl\rt'. fJ11~ available to the pLlhl,t:',und the public ],30' 'I" rlj!ht to) travel h:' motor \Tllldt, ther...on. This being tilt" ('.:ISt', th" repa" or maintenance of such a road '--'J.IlI",1 servo' a p"blic or countv purpose, I f a couutc-cannot e~p,.",-1 funds to maintain mllni('iI'JI meld,; which h:lv~ nol been propt.·r!, deslgnJtl'd a, countv roads or as a part of the eountyroad svstern ·],59 1,.,1 II. 1i1'.I'OHI' [ll--no: \TTC,li,TY,:L,\ER\L d "d "h ,ell art' lWt ,,,,,<I I" dw l':l'll,'r" I p "I,I ie "f I 1\1" ,'q, 11 ,t-. ,t,·" rC",', h ""."""l do "> I" ,n""ll;ll" prn"k ");,,l~. Colli", \, .I,,,I.:-on C",,"I,. 1')(, ':,,2d2111 D,C ..\. Fb. 1')1'-,'.), i",,,h",l .n' .,dll'" t" ""l"i".[ """"t,· I""" '''.f1',! """,,1\ "·j'''I'Tnl'''1. ,,,,,t,,,.',,I, '!I"I !"I" ,r i" "oll'.lr"c-llJI!.: ,,,ad"'!l p'" ;\t,· prr 'I,,'rh 'I'll,' l'omt ,', ,t,·d lh.'I, ,ct II", ,nl,,!'tl"Tl "f ill<' ,,,,I 1I)("''''"11\ "", ""n~,'''"nl' "q<l·I)l"ldinr:,.q\l~plIl<'1l1 \" b"ld ",.,d, "" l"i',[lL' pr0l":lt\. Ill"t ",d, .\11 ad ".-\, ,,,,I.m'!,,1 ,lml t)",t I "I"net 1'" [{·I ",I " ," p'o!,,",. ~ IllU' l he n\;II ,-, l('"ann' "r ILV:'" A J 1" i'-att'f' ud " !"r I],,' I" rH'llt "f .i [ll""k 1",Io",d",,1 and not for tIl<' 1",,,("/,1 01 U)l,,'I~ r""d"IlI, III '~'-"I<'ral. '."<Jnt" 1",,,1,, .,\lIl:O! 1,,_, "'Iw!l,!<-,I fHr rlol, !lUCI·""". h,'''''' "",,,. ;)1(1,,'.,';"" Ll) "",r I, rft" 111,,1 .1p,i""" ",-,,,1 ,,'i>:\11 .I,"c·l",,·., ,"'ltln",,,,,I, """.11" lilt' pl,I'!i". i.I',.\ '1""~{"laloli,ll('dr""d.· .\!Iholl"h,'eolllll' "L" nnl Ilui"!ai,, n''''l",I,llc r""d,. It I' r"",hl,' f"r th .. plll,li .... ap"rl fr"", the , .'11 n t \ • I" ., '_'!'"C<' 11"l' fll': III U II '" \." ,d .h .1 I,"\d,,,,.' h~ I'''' "L'n pi ;"1\ . .~'{'f' [),,"'n III \! \'. HId, roo So.2,1."ii ,~-b, [9,')';1. ,,,,<I .cco O;.'·I."i1 {"r II,e' r"'Juire!n"'lIl, h'r ,K'I'Li"ti"'I]" p,,-,,eT,pli',,,, \ prt",:ril'll'~ riuht " .LUI"I",d 0,,11 '" ,,,,tll.tI. ,','nl''''''''I'. llIlLll!nr\lI'\\"1 ",,-, he tl,~ "bll11'ln! of 1:,(' laTH I, "f ""oll".r. f"r:\ pre"('f1I,...d perl,.d. I.-\n <,,-,Wllll"'lt 11" I"'''.,-r,ptinn ("'I'L;n,,::'1I '('"r, to "",rLtc",j I" ."leli!",,,. tile! II'"~ r"l,,' he ."h n'l''"Hit r ,·!.Jllll"f 1'1.':\ 11 ;tnd In.hl "l\lwr I""w1t1,the-l"'''--!e''1;.:<:, f d,t' ()\\·,,,,r Llf '" rpc-n. n"ILlr""". ,'Llld, ,oI,l~ that kill!\<1,·dc.:t'(,1 lilt' llS<: 11, ,,,,d ",1"'('" d,w" "f th,. "I,.i",a"t i, in'l'''I ...d 10 lh,. ""·,wr. [T]h,. ,,,,-1I\\\ST 1,,-" """"'I'."!i.'l\1 ." illl t),e' '''' "n', "". and "011''' ,,,,",,t ,,1 hi, l.ll"l, ",,,I r!luq ,,,>t l'l':L IWrlll'''''<" "". ,j),,\\nill~ "I t, I ,\ "HL'" I' 'n.\\ ,It·<[" Lfl' ., "th!-"I .'.'.1' r,,'plli ,1;... [",\<1", ,l\ p ."p""'-' I" '('" felt1"" "I I"w Llllder ~,j:J;,JIIII. F. S \\ Io"'h I'Pl\ ,<f t " ," petrI \\'I"·,,,-"\'(·r an" r";I(: e-"",lnlcL·d )" ,\1'" of til(' _<:H'ral e'"'''!I''' nr 1I,,,orp,'rakd ll\1J111lll'.d'li(', or I" Th,.. :l"iLH·... oi ,,,,,d "!lc-r,"!ln'h ,\l.,1] 11,)\" I"",,, rnai"t"I""d, kl'pt In 'l'palr or ','or~,.d c""lonuOll,h-,"1,1 'IT.'' ,r,.-rr"pl,·cll, fn,·, 1"";0,1 "r fn"" ,'"r' I,,· ",,, '·""OJI,·, ,·"",it-ipal it'·. "r I" ti,,, ,II, i,i,." "I "'.HI "!wr~l""·".t,,tht:l,,'par;I!{'I, <'f j'''1I11" ",,.111<1;,,1 ,hall il,· dt'l''':l'd (0 he-de,,jie'alnl to tlw pOI hli,' til tlu-nlellt in ""Ith" hi, h h:1' ]" 'ell .wt 11.1]" \\ <or k,·J r<or Ilw jwr'od af or"~,,,d, " )1l'lIwr t he "Ime has t·'·." h"l'" [,nm"lh ,·'L,'"h,\\{"d "~,, Ill'!»;" I,i"h",~, ,lr ,,"I :\!iI'OIl~h iI", 'I.<illl" rl"jl"re' con-trucnoul» th" {("l!II~'. "l'ull,tfl,di"n" ,I"", not ',,-"""'''1,,1-rll"'1ll IJ,,,inl! \\''It'n an off ...l!odedi'·'lt,· a "nd i' m,,,Je. a WI,'" "f ,ld,. o\'('r:, 1',·",,,1 "f tunc. ,,'hich \I,[! de' cl"p ur ,-'on"trud a ro~d ~dt'I["a(,' to 'a' '-' till' lH'l·d, <If 11K c-,nllnn,t\l!\, lll:l' be ,,,ffiei('llt 1<1 "o .. ,t,l"k a ''',lll':rw·II()1l '" lil" "·n'.... ,S'·,· 10 F'[u. J"', DcJil'/l!!(!1l }I'I.I Sn' "/,.,, 1'.L'{'ll C"'Ill!' \' J"lm""'. Iii .~(' ''-<1 (,:,<.) IFh. I'J33'. n"·,,, ,..", ,\1,,, I~ """\"'0,,·1.," d ...d,c.Lli,,". c:,"",,,,,,,-I,,,, ,k,lic~t1"n i' tl", ,,'tti,,~ "Il.in of L'nd for p"hl,e-U"'·.a",ll" ('on'!ll"l{' il tlwfe n \(" t I It· an '"tC'llt i Oil I" I1)<: ,,wnn, cILlf h ,,,,Ill';l I ",I I" h" ","rtl" or ;1L'h. ttl ,1",1" al(' rh,·land r" ]'u\'\'" "',", "".l.ll' "('H'1'I.",,,,, I" 1[",\,,,),Ii(' "f II,e ,ledit.d,orL !Ci!~ "f 1''')Il'l'II'' \'. "",I't'h, '''''; "-101 .."iiKj. >IS S,). 3'5::'. ).-:>.1 ,1 ')-}',' I n,·,[I,·"t '011 Ill.!" hl' I" Ill'rm i"i't' L" 'TI'I,,t'! nf 1he (!.-,\i e-~\t" Onl' nw ~l" \\' h it'l, """ I", ,,,,,.,[ !o ""pn'" p"rp",<: ",. "'Tl'''\'Oll lCJ de,[i(:,H... land to the publ,c I, 1)\ ,""IOI<:"-":il('" of I),,, owner in lht· use "f hi' prnp...rt, I,,' lhe pllhJic for puilli(­ 1''',po,,',. JI J, TI](' pill ,1 ,e ".'"h",h"'"n h'l,a vc aco-ptcd it b, I'" 'II! 1he lar,I. 1f t 1,,-, pri, art' m"d refcrn·d to ,rl ,'''" llHI'"n' .1' ~ "Jong e,uhl "1,,,<1 roid" has in f;,Lllwell lL" ., I h, tl ,e pu hi ,e ~, " POl], Ij c' ":>;1< j.,'C,\ , "nd of Ille 0" "e,,,! t hc pf I '. 'l!l' LllH I·.j" •._i II 1:., t ",..,d c· ~ co""",'''-I.", d edi"'l1i'H1"f '"dl LI"d Cl'f("adwa,' kg,llh' "I'fl<'i,',,( t<> ,'n"q>!"I,' ~ ,','dic'al""1 then'''' for publ'" 'ht', 'I ,., p\'":bl,, tl,,! 'wi,' "'ad,,,,'.\ ""n I,,· ,."""d"f"d 'kdOc\'kd '" th,' 1',,1,1,,·""c1." 1•.,H'locTn '''''''v'ed I" ,I'w 1)111,1", 10>' '''''an, ,.J! P\l ,II<: ,,'t.. 1l"weH'r, ""-';1 11llwd '1""'11<1", "f (.,et and l.rv, 11"1,,1 be d"!o'rnllned l.~ (he c·..m(, m "rI'c<lpn"tc' "c!'l'f',ln [l:(,,,·,,d,,,,,, ,,,,(,,,10:..1 I,'" Ih.,t p,"p"".. F\d,,«.· ~ ('m,"h ceil] ,d,1 m",\' ,,,.~(;., to 11",,,"'UI\' n~ "I ,,_1"11>..h ''',ll"",iR(;,!>,. 'j ).,r-; It!, F .~. it'i, n,,,-,c",,,,,,· ,1131 IJw,e be J 'del,'rm'-n"tlDn bv tlu-connh' ".11lnli""",,",, Ihal ,,,d, road-, ,,'r\l''' p"hl"'I"'fjm,e ()"h tl""I"'''1 the un,nl>' \;didl, .IC('<.·pl a dC"{:icat"", "f a r<ud ," a (:"Ull'" ",~d, ,\11",,,,,-, (;,-""",,1 Opi"--'lll ",,<;-):',.). S,lId "pin,,,,, '1)_" 'I"t~'s thal. rh~ m,'rt ~pj)rp~ ,II (" " ",j,di, i,i"n phI f'lT ,e, ,,' d ,t, 'c' '''11 , "'1 11t\,1,' .1 ',II -d dekrnl'nat ,nn!hat Iheroa'h d,'dicatc,1 ,n Ihat ;:>1'-'1 dc> ,n !a,'t, _en ,,. a ('''''11' pmp"'<'. :-;nr .I,l('< Mien apptn'·.,1 t',"I'llI"rt·,' ,;]1; !,llC"·pl"'-,,,,"'! ,1",li""II,);, ," ",prc"cd I,> the plat. T!", "PI",,,:d "f ,) pial do,,' nClt en",t,·." n "I,ll "~ti"" ..'JpOll an, 0:'-" n,,"'" I""i" \>' :',:,f"'l1l .It)\' Jd lor ,'<>ll,jr'l('t"'n DJ ",all,lc'n"l'_'e "l\hin '''c'11 ,lc-d"",1c,d 'Lr"'~ ,',,<'pt \\'lwl1 tlw i,I,J,,!~t "'11 I' \'"JLlnt"'II, ,l,",nw,J ill t IK'c!o"ernl n,' I"H1\,., ";,-,eI,,)]l 1~-')'i),11. ]-" S Sl':\SHI:,\'E 'A W .-\I'PLlc.-\BrLln· TO ,-\PPOL'\'T,\E liOAHDS T" Ccur"" F I'",,,,",,, C/rmmw!I. !:imlrard em,"I!, Board,,! R,d"s md ~,nJcak f',," LUJ1dadal,· Ql'ESTIO:,\': Are appointi.'e bodies sullje('t 10§:2S6.0II .. F. S.. the Sunshine Li",: Sl'~I\I,.\I:;Y; .'\ppoillll.-e hodie-~, a.' w~n as ell"'!;"''', r"n,,,,del lhe pun i"" "f Ihe Sunshine I--,,\\', Ad,i~on' bo dil'S can he controlled b-the Sunshine {---"II. Commilleel of a governing board composed of members of (he nO~TrI mu<t h;"e publi<: ",cl'Un£,-S wheo such ,neetinl!:s deal with matters [ll'rtaining 10 the dutie5 ,md respon~ibiriti"s of the hoarf!. -:-1)[" C'J\ernl1wnt ;n the S""-'Iline Law, ~,':Sfi 01 I. F S pro,·id",. \ 1) i,,\l 1lll'l'1ml':' ,,: ,,,n h"ard "r ,'c""""""", 01 ,"" ",lit-;,go"n I"~ .urrboutv Of "I' any 3gel1l"\ Or adhoril" of em,' <.'ollol", 1l'1I:1"'ip3J "Dr, ><H ,If; Oil ,j{ ani' pol i 1i<',11 ",', l(ij \'j 'ion, c·,,-'q)1 "'01haw,".pr<l\"kd i" II", e"n,t,t"ti<>n, a~ "'!lid, "Htd'll ccrs ore I" be bkel1 are ded,l"''! I" I".' puhI rc m{'l'I,ngs o:x"n tn II>" publ ic'ar al I nmcs.:md 110 ,,,,,,Iution, rnl,,,. fee" Inu On or f"rrual act j ,m 'h ~I I he,'On,,dce,·d 0':odi, I,~ e.\('l'pl .rs I,,]..;ell ,,, lIlade ~I 'nell meeting, Tlw't' i, no m.."l'on "f "di,t'ru;()" l'l·t"·""" an ,,1"l'\1I't' n, lp!>O;..,tlH' h"d, TI'l' "at LlIe i ndl"!c~ 'II' b"'lrd.' <l'H! C"I1,,-,,,,,jo,,,, 1'1,c'e,,,'~l ," T,t] ,{,S P,tl,J i,hing C""'pl1l' ". \\',]J;a'm. 222 5,,2<1 ~70 (1 D.CA. Fla n.I6)1. ,t~t('d, ~," [ CONSTITUTION OF THE STATE OF FLORIDA Micle IIll Artiel SECTION 9. coca! taxes.­ (a.j CO'Jltl(:S. scnoc' orsmcts., aoo moruc.oauues s'rau. and soece o.stncrs -nav. be actoorcec ov aw to rcvy eo valorell' taxes a~,::l may be aumonzeo by geC1eral law to levy other tines, fa' l"elr tespecuve corposes. except ad vale-e-n taees. on mtanqrb!e personal property eoo taxes ccon.c.teo 0, If":'; constitution (b) Ad varorem taxes. exclusive or taxes ievreo for 1I",e LlJyllle',: 01 bends j~d taxes 'eveo 1;Jr oeoocs not to-roe-than \'-"'0 years when authorized bv vote of the erecrcs who ;.,rp 'he owns's or freeholds t:-,eren T1Dt '....'''OI''J exempt from taxanon. st-an not be levied In e ecess ot me foliowlng rmneces upon me assessee -an.e 0/ real estate and tanqroe pe-sona crcoert-: tor an cocntv ou-coses. ten mills; for ali rr-un-croal purposes, len ""'lis, b( all ccooot oo-ooees. (8'1 '''''is lor water rna-iapemen: ourposes for the northwest ccrtron ct the slateylng west 0: the I nO? oetweeo f;>nJEs two arid three east, 0,0)5 mill: 101 water menaoer-eor purposes tor tr-e -ema.runq poucns or me state. 10 m.'II; and tor all Jther sooc.a: c.st-rcts e nlll!dg~ authorized by law approved by vote 0' the eecto-s whe a-e owners of I ree­ ooros therein not VHIOllv exemo' tmrn ta-anoo A county ~u(nlshlng rru.o.cipai servces may, to t-e extent aunor ceo by law, le\y acouooa' taxes wrttun the «ruts fixed tor -nomc.oal purposes. H\~lO"l,_." SJ~ l:l~.' '9'S ,c,:<:·"~ ''''0 SECTION 10. Pledging credjt.-~erther the state -ior any county, school crsvct. rrurvcoantv. special rns. 1'1eL 01 aQe[1,~.y 0\ ~[1V 0\ them cecu become a lulrll cwner With,01 stocxnoioer ot. Or gll/e, rene or use ItS tax­ J'lg power or creon \0 aid any corpo-auon. assoc\allon, r:allnershlO or aerson, bUI thiS shal' not prchlblt laws authorILlng. 181 'hE' Investmelt oi pubiJc trust f~nJ~, (bl Ihe Invest melt of otrler puollc funds 'n obi gao tons of. 01 'nSured by, me United Slates or ~ny 01 Its Irstrumentalrtles: (e) \I;e Issuance 3.nd Sale b'l ,my C'JJnty, municipal· 11'1. ,;oecral d<slr,ct 01 other loca: ;J0verrrllental bot'll' of 1,1) reve1ue bOnds to J,f,ar,ce or !el'.naflce the cost oj capital prOleC1s tor airports or port facill~les m (?) leve· nue Donds 10 flna'lC2 01 reflna'ice l~e cost oj ca;>ial pro!,"cts lor Industrial or manulacturlng plan Is to the extent th:lt the Interesl1'"rell:~On ,~exem::l1 tron tncome ta~es under the then eXls\lng laws of the United Slates, when. In either case lhe reven,Je h;)nds are payable scle;y lrom {ev,"[)U€ cenved from the sa e. operation or 'eaSing 01 the Prolects, It any project so Iinanced. or any pari Ihe,coj, ,:> :)ccwOled or wperiJ,leo 0'1 any prh/ate COl· pcratlon. assoCiation. partnership or person pUisuant to CO'ltraClor lease WIII'I the SSlJl'l\) bod:, the ::>re-oe(ty Int2reS! createo by SuCh contract 01 leaso> shall be sub· j€et to t~xatlDn to me same eXI€'lt 2:S .)\her. :)11\/811011' owned property. (d) a muniCipality, 20untl" specral distriCt. or agency 01any of Ihem, being a lOlnt :>wner 01. Qlvlng or lendlr,g or uSing lIS taxing power 01 cledlt tor the j(lnt oWlerShlJ, COrtstruclon and operation of ele::t·'c3i energv ge,-,el"t· Ing or transmlss,on faCllllres wltr any corporatl01, as so· (latlen. DaltneIS~"D 0r oers~)(\ H"tory,_A'" H J ~ 1~,4 19)3 'CcP"a 19-. SECTION 11. State bonds; revenue bonds.- :" ~ i~) Slale co-os pledging the tull faith and credit of _"'11 the state may oe ISSIIP.d only to finance 0: refmance tl1e -e cos: oj state to.eo capital co-ev pfOjects acu-o.aeo by ta,v. and cwooses mccentar thereto, upon app·oval by a vcte ott-.e electors: prcv.oeo state bonds Issued pvr suant to tI-,S subsection may oe refunded wrtboct a vote -:»: at the erectors 81 a lower oet avel;l.ge Interest cost rate. -, I The total JutstaldwlQ onnc.oar 81 stale cores rssueo .er. pursuant to ttus scosecuon s-rau never exceec I tty per­, , :c. c \.1:'rot oll:-1e (ot31 rsx revenues ')1 t-ie state lor the two ore­ to) ceono fiscal years, excluding at'y tax revenues held " ar Irl'sl uooe-\h" POVISlon::. ottms COrlslllul,on, .. 31 I r Ib) Moneys sorncre-u to pay debt service 0'1 state .. '311, bonds as t-e sane becomes due shall be aroroonateo : ~,-,j~ oview j'H (c: A'lY state cones pledg ng tr.e lull faith ano credit of the elate rssoec under ttus secnco or any other sec. uon Jj lhls constitution may be combined lor Ihe pur­ ccses 01 sere. (d) Revenue bonds may be rsscec by the stale or ItS aperc.es wttout a vote 01 tne erectors to tverce or relt­ nonce the cost ut state fixed capital outlay projects actnonzec 0'1 law, and purposes .ocoeotar tnereto. anc or-au be payable solely from lund" crenvec direct I', t-ern cer sources otr er tr'la'l state tax revenues. <j;:~ ie) Each pr:)i€Cl. bu ldmq. or tachtv to be financed ·':::11::1 or retoancea Wln1 revenue ceres Issued under trus sec­:1) 1I:)n s'1all tust be scorovec by tne Legrslatr..re by an act ,8 ( relating to eocron-ranons or by oenerat law, tne K,S\O"l'-~'" ',0 '~,' c ~ 'n, S .'il 6', '9E'-' '~oo'~a 1934 ,.ret­ ,ch I,SECTION 12. local bonds.-Counties. SChOOl diS· , .,1Etrlcts, municipalities. special dlStllctS and local govern­":: ISSmenial bodies w\th laXing PO'NHS may issue hOr\ds. Cer. , sec tltlcates of Irdeotedness or any lorm 01 tax anticipation ~allvcertl!lzates, payable 1rom ad valOTem lE.XatlOf, and ,GinmatUring more than twel'/e lTIonlhs dlter Issuance only, , '2) (a) to finance or refinance capital prOj8C\s author· '.Jedzed bllaw and only when aoproved ty votP.oj the elee , ", petors ""no are owners of treehDlcs tile rein nOI whOlly ' ..,~ Ol{~xem[t from l;.xati::Jn', or (b) to refund o"tsla,'ldlrlg bOllUS and Interest and I8demJtlon p,emllCm II"',Heon at a lower net aVErage SEc-Interest cost rale. I:)~ns.­ SECTION 13, Relief flom ilIegallllxes.-Unlil pay­"i ment o! al: 1;;1>85 wh Cn have bee-118gally assessed upon , ,.ed the properiv at the same owner, no court shall gIant 'le!m­ relief fum the payment 01 any tax Ihat may be Illegal or "" a:: Illegally assessed. ~,ghE ~\hJht SECTION 14, Bonds for pollution control and , ;'):zec abatement and other Wilier facilities.-'. -Dell (3) Nhen authorized by law. s:ate bonds pledging ~1.0~. lI'e fult faith a1d credli of the state ma:, be Issued wilh­c' 01,' 0..11 ar\ electlc,n to financE the construction 01 arr and . jllri[ 'Aaler p:lIIIJ!,on ..anVol and abatcfT'lent and s~lld w~~te .'lS ,,' j sposal 1aclli\\€S and othe~ water la-:::llltl€S autnonzed by "red general law (herein referred to as "faCilities") to be oP"r­,~ "lur ated by any mJn'Cipalrty, C:Junly, dlstr\cl 01 au1honly, or .,,::r aw a'Jencv thereof (herelr~ reterred to as "local govern, ,··'OJnt m"ntal ;gencIB~;'), 1;>1 Dy J.ny agellcy 01 :he State 01 Flor· , ··'·)',)-;t A-20 SOUTHERN REPORTER VOLUME 198, SECO'iD SERIES WliHam G, O'NEILL, Julin J. Crews, Jr. and A. J. Thoma" Jr., Appellants, v, Haydon 8URNS, Governor of the state (If Florida et .11., Appellees. No. 34741. SIJ{)rNl\~ Court of Florido.. Action for declaratory and injunctive :'c,:c( on basis that act appropriating sum to Jumor Chamber International was uncon­ -ututional. The Circuit Court, Leon ''''inty, B ... n C. \ViIli~, r, sustained consttru­ ::',:1ality of act and appeal was taken. The .p rcme Court, Caldwell, ], held that ,::Ite appropriating from general revenue 'tHe sum or $50,000 to board of corn­ ···:'.;;,)ners of state institutions to be paid junior Chamber International Ior crea­ Dr pe~"'anent h",,-dqua~t<:r3 in state -v.dcd for unconstitutional pledge or ·'i credit of state. Reversed. Ervin, J., Thornal, C. J., and Roberts, scnteo. C"u~lles <:=1$4(1) \( J11clpaJ Corporations <;::>873 '"1:.-when there is some clearly ideo­ [':,l concrete public purpose as prj­ 1 mary objective and reasonable expecrar.on that s rch pc-pcse will be s:lbstantially and effectively accompkshed, may state or its subdivisions disbur se, 10;,\n or plecge pectic hinds "r pr-cpes-cy to nOrl-go,·ernJHental en­ tity such J.S nonprur.r cor pcrarion and there must te some coni-c! retained by the public authority to avoid irustration of the public purpose. 2. Slates C>l19 T'r.at Ftc-ida, as an ;\d,Jrcss, nij!;ht ap­ pear on letterheads J:1d envelopes and would ,1ppeJ.' on postmarks oi mail forwarded hom headquarter-s of Junior Chamber In­ ter-naticnal die not e,tablish a primary 1-'1..;:.­ .ic pvrpose, and did not jLntiiy appropria­ tion of sum hom gener.11 revenue of state to board of comrrus sione rs of state institu­ tions to be p{lid to the Junior Chamber In­ ternational for ct-e ation o i permanent head­ cuarters 111 s-ate. FS.:\. § 2S2.011Cn; F.S.:\.Const. art. 9, ~ 10. 3, s tetee =119 Statute a-rpropriating $50,000 fr-om geIler"l revenue oi state to board of com­ missioners of s-ate institutions to be paid to Junior Chamber l nr ernntiona l for c reaticn 0: permanent headquarter-s in state provided for unconstitutional pledge or loan of credit oi stare, inascnuch as there "as no obligJ.­ tion that huildings or lands invchr eo would serve' ::.r.y ptl'-':ic ,,:;~ney or pll.l.>li~ "ell­ erall y and there was no prevision for rever­ sion to state. F.S.:\. § 782.011(3); F.S.:\. Canst. art. 9, § 10. 2 Flo.. 198 SOUTHERN REPORTER, 2d SERIES \V;J1iam G. O';'{eiJ1, Ocala, for appellants. Earl Faircloth, ..i.tty. Cen., Fred Sl. Burns and wuson W. Wright, Asst. Attys. Gen., James S. Qt:incy, Gainesville, and Joseph A. i\'an,rk, !lfiami Beach, iot appellees. OX PETITIONS FOR REHEARING C\LDWELL, ]t:stice. The petitions for rehearing have been considered.! OUf or-ig-inal opinion of Oc­ tober 26, 1966, has been revised in certain particulars and the petitions for rehearing have been addressed to the opinion as :e­ vised. Whc:l so considered the petiticns are denied. This cause is here on appeal from the decree of the Chancellor sustaining the constitutionality of Chapter 65-27i, Laws of Florida, an Act appropriating ~50,OOO to the Junior Chamber International. The ap­ pellants sought declaratory and injunctive rdid agains.t appellees, contending the Act was unconstitutional in that it constituted a pledge or a loan of the credit of the State of Flo-ida in violation of § 10, Article IX of the Florida Conseitution, F.S..>\. Appel­ lants also contend the title of the Act is deficient and that the Act constitutes an un­ constitutional delegation of legislative authority. The Legislature of the State of Florida, regular session of 1965, enacted Chapter 65-2i7, as follows: "Section 1. There is hereby ap­ propriated from the general revenue of the state of Florida the sum of fifty thousand dcl.ars ($50,000.(0) to Ule board l. On Jl~(;tion [or r~heartng appellees urge in sU~J>Ort ..,f their- contenuon that we ('Onsi,kr the l'ro'·i~ior;s of a 1NtSe ru~ni"K [<om the City of Mi"mi D~a"h to Junior ('h:lm\:>1.>r Iatercattcnat. appellee. dated :'Ilay IS, W6G. The lease was not ex­ ......uted until nft"r tbia enuse had heeu trieu of ccmmissicners of state institutions to be paid to junior chamber international for the creation of permanent head­ quarters in the state of Flcrida, provided however, that such sum shall not be paid to junior chamber international until a municipality of the state of Florida pledges a n equal or greater sum of money or value in lands and builriings and that the location within the municipality is a site suitable to junior chamber interna­ tional for a permanent headquarters building." The Junior Chamber International, an o-ganiaaaon of Junior Chambers of Com­ merce, is a non-profit corporation. Its purpose, as set forth in its Constitution, is "To develop ani advance the purposes of junior chamber. to coorrlillate the activities of its members to achieve this, and to promote the extension of membership to all young men." The purpose of the Junior Chamber organizations is: "To develop the individual abilities and stimulate the joint efforts of young men for the purpose of improving the economic, social and spiritual well-being of mankind, by developing re­ sponsible citizenship, training programs to develop leadership, planning and executing programs for individual and community development, promotion of economic development and the furtherance of under­ standing, goodwill and cooperation among all peoples." "The decree of the Chancellor includes a painstaking statement of all pertinent facts and a scholarty treatment of applicable precedent. Inasmuch as our decision turns on the first point, whether the Legislative Act in question violates the provisions of § und appenled, It is net in thtl rel."Ont en­ appeal ~nd is not nemeent to tbe basic hsutl iu\·ohed. Our or;giU(l.1 opinion iilell October 26, Ul66, has been Withdrawn and this opinion substituted in lieu thereof. . 3 O'NEILL v. BURNS F1,. CIte 8". rte.. 19S lh2<11 10, Artic:e IX, of the Florina ConstitUt~OT1.! we will not discuss at length points two and thee, ha-»ing to do with th~ sUlflciency of the title o.nd delegation of author-ity. In !1is consideration of whether the Act constituted violation of § 10, Article IX of the Florida Constitution, the Chancellor pointed to Bailey v. City of Tampa.t a case holding the City could validly convey to the Tampa Board of Trade a parcel of land upon which the Board of Trnrle <lgreed to construct a building, The Court found these facts: ~ "In addition to the facts shown by that pMt of the comracr here quoted, the rccnrrl disclosed that the Tampa board of trade had already per fer-ted its arrange­ ments and secured plans and specifica­ tions which had been approved by the city of Tampa for the erection of an l Svstory oificc building- on the lands described in said contract, free of cost to said city, but at a cost of not less than $400,000 to the Tampa board of trade. the said building to be modern in eve-ry respect, with a useful life of at least is years i that a very large portion of said building was to he turned over fur the use and disposal of said city at the time of completion, and that within 35 years the whole of said uuilding-, including the lands on which it was located, revened free of cost to the city, except such office space as may be necessary for the Tampa board of trade 10 carry out the purpose of its organiza­ tion and to operate consistent with public interest It is also shown that in design, utility, and appearance the said builcijng must be constructed to respond to the various demands of the city of Tampa, and, if not' constructed within 3 years, 2. "Credit of stllte Dot to he pl~<ll:ed or IO;l.np(t-Th~ ereilit n( the Stote ShaH not be rledged or leaned 10 any inolividuili. ,·.,rna"''')·, ',u'1>or~{jon or association; nor ,hal] the State become a joint <,,,,no. or stock-holder in any ('ompan.\', nssoda­ lion or corpor arion. '1'J,(> L~~;slo.t\l.n, shal! not allthori>;oe lIoy ~~Ulltl', cur. borollgh. to"'n~hi" or ;lIc"rl'"rHed district to become 11 "tack bolder in aay ecmna­ the. contract to be void and the lanes re­ conveyed to the city." The pram and specifications had been prep~rec and apprcved and the size, cost, useful life of the ~uilding and completion date were established by the contract. Also, a large portion of the building was for the immediate use of the City and both Juilding and 'ands wou!" rever-t to the City after 35 years. The Chancellor thought Raney v. City of Lakeland c similar to the case at bar. Tile Raney case involved ~of certain muriicip a! property by th~f Lakeland to the Garden Club of Lakeland for a nominal rental. The lessee was requir-ed to establish and maintain, as a public service to the citizens of Lakeland, a.public !ib~ of specificd purpose and an educational in­ formation servic-e in the field of horticul­ tural beautification. The bu-lding, includ­ ing the library o ffices, auditorium, ebb room and exl.ibit.on facilities. was to be started within two years and revert :0 the City at the end of the term, The agr-eement included covenants.against assignment and sublctti:1g-and provided for cancellation upon breach of any covenant. The Court, in the Raney case, supra, found the Garden Club oi Lakeland was quasi-public in nature and that. under the) lease, the club was obligated to render a public ser-vice, not limited to its own rnem­ bersh.p awl was precluded from exploiting the land and improvements for prrva te gain. In the cause 1:efore u. thHe is DO obljga­ ~ rhat the building or lands involved are to Serve any PUBlic ageDsv or the ppb!;s. generally. Neither is there a provision for ~ lly. n~M~;n-;(In Or corpor",t!o", or to ob·. tain Or appropriate money fur, or to loan its erailit to, OilY corporotion. cssocteuo», in~titur:on or indh·idulll." 3. 92 FIn. 1030, 111 So. nil (1926). 4. re. nt 1O?..'l:,111 So. at 120. s. 88 So.201148 (FJn.19~6). 4 Fla. 198 SOUTHERN REPORTER, 2d sBRIES reversion to the State, the source of the would be merely incidental. It is really the funds here in controversy. tremendous volume of mailed and otherwise distributed material which publicizes Miami Marry (Jlher decisions of this Court have Reach and Florida and directly promotes dealt with the proseriplion inherent in § 10, its tourism that serves a public purpose Article IX, of the Florida Constitution. Ind which would authorize expenditure of state D L State ex rcl. Barnett Xat. Bank of c an I . '. or ocal property, moneY, or the pledge or Y. Thur sbv," we approved the appropr-iation I f ,I· d·tt·· . f h "H-can 0 rerr ere In Its urt erance. e of funds by a county \0 a non-profit coun-__correctly stated: 'It is only when there ~ ty fair association for the conduct of a falr.( I I id ,.,.d d bl~' J ~ some c ear y I en 1 re an concrete pu IC ' Overman v. State Board of Control' lJpheld th· biecf d '.. I purpose as e primary a jectwe an a rea­, an Act appropriating funds to the nr st ac-bl . h h ·11 _. .' sona e expectation t at sue purpose WJ cr-edited medical school established In the b b . II d ff . I , " e Sll stantla y an e cC\lye v aecom­ Stat.e. State v, ~oard of Cont:ol 8 val:date~,\}~, plishcd, that the stale or its subdi;'ision may an issue of uruver sny dormitory revenue Jd b I I d bli f d'-'. _.. certificates, and held the fact that Indl\·I~u- at students would benefit did not deprive \ . the dormitories (If public character. In State v. City of Miami,9 the issuance .of revenue certificates to finance construction of a warehouse to be leased to the Orange Bowl Committee, a non-profit organization, was upheld. State v. City of Tampa,lo up­ held the construction of a convention center by a municipality on land leased from a. private corporation. But, in the case of City of West Palm Beach v. State.U in­ volvmg the construction of a civic center, marina. and other facilities to be leased to a private corporation having control over the project, this court held the arrangement was "an improper subsidy of private enter­ prise with public money." The Court dis­ tinguished its earlier decision in Panama City v, State,12 upholding the issuance of revenue Lands to construct a marina, on the grounds that in the Panama City case the City retained control of the project and leased the various units. ..., [lJ The question confronting IlS is wherb­ er the appropriation to Junior Chamber In­ ternational is ior a public purpose. The' Chancellor found: "The very fact of the' location of the permanent headquarters at Miami Beach promotes tourism to that City and to Florida generally, but this alone 6. 112 Fill. :::~7, 150 SD. ~2 (1933). 7. 62 80.2<1 696 (Flu.1953l. 8. ~~2d 2UO (Flu.19:>3). 9. 72 SD.'~d 655 (Flll.1954l. rs urse, can or p e ge pu tc un s or property to a non-governmental entity such fit ..::.1 d f has a non-pro 1 corporation, an Uri er, h t "Th t b I· dt a ere mus e some contra retasne by the public authority to avoid frustration f h bli .,o u c pu sc purpose. [2,3) \Ve must disagree, however. with the Chancellor's application of the prmciplcs and authorities reviewed. A public purpose of primary, as distinguished from in­ cidcntal, bene fit to the public has not been shown in the case before us. The fact that Florida, as an addr-ess, may appear on lett e r­ heads and envelopes and will appear on postmarks of mail forwarded from the headquarters is obviously beneficial to the Slate but we do not believe that benefit ~ be more than incidental. .\150, it does not appear that any semblance of control of the contemplated property is retained in the State. To hold valid the appropriation here con­ sidered would necessitate an enlargement upon the philosophy established in the land, mark cases of Bailey and Raney, supra, and would be tantamount to saying that like appropriations could validly be made to any national or international non-profit or­ ganization which, in the course of its op; or-ation, may send large volumes of mail out of the State. Although, as a matter of 10. 146 So.2u 100 (FI.'l.1[lG2). II. 11380.2<1 3H (1959). 12. 9380.2<1 GOS (F"l1l.1057). 5 O'NEILL v. BURNS Fla. Cite B~, Fla., 198 sc.cu i ·-I popular appeal, such Course may tend t porate purpose. The expected result, haw- dc sirable ends, the practice, absent a meas-(over reasonable or probable, that the con­ ~e Dj public cQotroJA!ld.. a primarLJ.l~ duct of the regular corporate business will i'.tlrpo<;.e to b~d, is not authorized by result In state advertiscmcnt, still must be the: Constitution of Florida. recognized as merely incidental to the pri­u Rr vc rscd. l}RE\V, .T., concurs with opinion. THO:\f.-\S, .T., concurs and ag tees with DREW, J: O·CO:\':\ELL, .T., concurs. ERVI:'{, L. dissents with opinion. THORX.-\L, C. ]., and ROBERTS, ]., dis sent and agree with ERV1X I. DRE\V, j csrice (concurring), I am una LIe to conclude that the public purpose, promotion of tourism, relied on to sustain the controverted statute in this case. is ;lily thin;::; more than an incidental rc,ult <;It an act which in simple and unconditional terms appr cpriatcs $~O,OOO "to junior cham­ her iut cr nationa l for the creation of per­ mancnt headquarter> in the Stale of Flor­ ida" on land or equivalent value pledged 1Jy a municipalitv. There is no dispute. The worthy character and objectives of t'le recipient orgoaniZiltion, a non-profit cor­ , , , ,poratson, seem to me quite nrc event to h hI', " t c issue rcre. t IS pat In any (.g« sense_ .1 publie bodv nor is it, under the terms. of .-. .the ,t:,tute, <tll,.t::::t to any cOll11n.!!!!!£...EQV­ , h f h b it.L!lmcnt"-contro m t e use 0 t e su jcct ;,,,,,,, Th d .. ~," ,f h ibut i hstatcu purpose 0 t c coru n ution IS L C " .. c r-catu.n or a headquarters which will be- lone: to the corporate body. Obviously the majur use or purpose SCTq,J is the cor­ 1. Cl~~~ ccllcr-ted in St,lte Y. Clay Coun­ 1'· Development Au,h.--.rily, Fl:l.lflG2, l.fO :',,2c.l 57G, 5S1, note 12. 2. II,L,1. n. :;SO. r<!f~rring to Secricn 10, Art. IX, Ftu.Const. mary business or activity being financed by stale funds. Certainly the appropriation is not even in practical terms a contract for the conduct of promotional services through a private organization, The cases, in my opinion, clearly reject the idea that private enterprise may be financed for the sake of incidental public benefit, and have required in every instance that the direct and primary purpose served hy the expenditure of state money or credit shall be the furtherance of a public or gov­ ernmental Iunction.t There are, of course, an cvr-r-mcr ca sine var-iety '-,I tcrltuique s employed toward the wor-thy obj r-ctrve of promoting economic development. But as staled in past opinions, if we approve the use of Slate funds or credit "to build and finance private enterprises and put such enterprises in the exclusive posscs sion and control ... ... ... as is proposed to be done here, in order to .... ... ... promote the economic development oi the area, then there is no limit 10 the extent to which the credit of the State and its authorities may tc extended to private interests. In such event the constitutional pr-ovision above. quoted will become meaningless." ~ I re­ main convinced that "uncia our org amc law public money cuunot be appropriated for a private purpose or used for the purpose of "cquirin~ property for the benefit o i a pri­d ...... vate concern. It oes not matter how worthwhile. they mav appear to be at .' or ._.' . the passing moment. Yhe financing of pn­. , _ vale' enterprises by means of public funds ~ e ircct primary arm eXpliCIt y.. . IS entirclv forcicn to a proper concept 01 -.' " 3 our consntutional system. Therefore, ior these, as well as the rea­ sons expressed in the opinion of CALD­ 3.. State Y. Town of ~orth :'>Iiami. Fta., ~,::I Sc.Zd 77[1, ,S5, quoted nnd telied on in State \". Clny County Development AutlJOrity. note 1 supra. 6 Fl!. 198 SOUTHERN REPORTER, 2d SERIES \\"ELL. .I., in which [ concur, I would re­ verse the decision of the trial court. THO!lIAS, J., concurs. ERVI:-~, Justice (dissenting); This is an appeal from a decree of the chancellor sustaining the constitutionality of Chapter 65-2i7, Laws of Florida. The chapter in question is an act appropriating ;;50,000 to the Junior Chamber Internation­ al. Chapter 6S-.-2i7, enacted by the Legis­ lature of the State of Florida during regu­ lar session of 1965, reads in part as fol­ lows: "Section L There is hereby appropriat­ ed from the general revenue of the state of Florida the sum of fifty thousand dollars ($.50,000.00) to the board of com­ missioners of state institutions to be paid to junior chamber international for the creation of permanent headquarters in the state of Florida, provided how­ ever, that such sum shall not be paid to junior chamber international until a municipality of the state of Florida pledges an equal or greater sum of money or value in lands and buildings and that the location within the mu­ nicipality is a site suitable to junior chamber international for a permanent headquarters building." The Appellants sought declaratory and in­ junctivc relitf against Appellees, contend­ ing that the act was unconstitutional in that it constituted a pledge or a lean of the credit of the State of Florida in viola­ non of § W, Article IX of the Florida Constitution. Appellants also contend that the title of the act is deficient and that the act constitutes an unconstitutional del­ egation of legislative authority. The learned chancellor found from the evidence before him, and so states in his perceptive opinion, that the Junior Cham­ ber International is a non-profit. quasi­ public corporation. It obtained its charter from the Circuit Court of Dade Count)' on September 10, 1957. The membership of the Junior Chamber International is comprised of members which are them­ selves the national associations of Junior Chambers (If Commerce in their respective nations. The purpose of the organization, as set fonh in its constitution, is "to de­ vclop and advance the purposes of Junior Chamber, to coordinate the activities of its members to achieve these, and to promote the extension of membership to all young men." Further basic purposes of Junior Chamber organizations are: ..* * * to develop the individual abilities and stimulate the joint efforts of young men for the purpose of im­ proving the economic, social and spirit­ ual well-being of mankind, by develop. ing responsible citizenship, training pro­ grams to develop leadership, planning and executing-programs for individual and community development, promotion of economic development and the fur­ therance of understanding, goodwill and cooperation among all peoples." As reported by the chancellor, the J. Cr. is now composed of 80 member na­ tions which contain an aggregate of 316,­ 000 individual members in over 7,000 local communities. It has and maintains its world headquarters in Miami Beach, Florida. From these headquarters, located in Florida since 1955, the functions of the organization are coordinated and ad­ ministered. The chancellor also noted the following: "(d) In 1955 there were three staff mem­ bers on duty at the headquarters. At present ,there are 22, representing 11 nationalities. Over 8,000 original letters and about 12,000 copies of letters are sent out from there each year. In addi­ lion there is an extremely large volume of program materials which is dispatched. Also there is published and sent out the oiiicial journal and monthly news magazine of the organization. All of the mail bears the Miami Beach post­ mark and the letterheads, mast heads O'NEILL v. BURNS Fla. t Cj~f' G', rta.. .ss scze r. and other location data WI the materials s cnt out refer to the. hcadqvartc-s uc . ::c:-; Iocr.ted ill llorida. The materials rhcrnsclvcs refer frequently to Flor-ida cad va rious features of the locality of !;,C headquarters." :\::cn:ion is focused upon tue fi-st point involved-c-whether-the lcgis13tivc act in qucs ticn violates the provis;ons vt § 10, Arric.e IX, of 'he Florida C:mstitl:t(QrJ, St~tiQn :0, Article IX, -eads as iollows : "::=:rCTIO::; 10, Credit of sHte 'lot 10 k· plc-dgcd or 10G1I~d,-The credit of the State shall not be pledged or loaned tlJ any individual, company, corporation o-:.s,oeiatio;'l; nor shall the State be­ come ~ joint OWIJer or stock-holder 10 ;,~y company. association or corporation. T:1e L:-gis!MI're shall not authorire any ccutr y. city. lro-ough, tcwnship or in­ corporated district to become a stock holder in :tny company, assoc:ilti')ll or corporation, or to o)t"in or appropriate money for, or to loan it~ credit to, any ccrpcranon. association, institution or individual." In his consideration of w~ctl1f'r the act ccnst.tuted a vialation of ~ !O, Article 1X, [he chancellor made the following per­ lincnt cbservauon about the I.CI. "* .. .. to the extent ~ha: i; ~encs cut many thousands of pic~cs of malcr­ i~l ro :Jl parts of the world which craw a-tcnuon 10 Florida and ,0 \fi<'.mi Beach and rC(lSnlltlbly iC"'C! (0 FrOIIl(l!(' 1''Ilrism to these arras, is bnctioning in the natur-e of a quasi. public corporation. The very fact of the location of the pcrruancnt headquarters at xliarni Beach fr"moks IOllr£s,1'I. to that city and to Florida gen"rall)', tut this alone would hp merdy incidental. It is really the t rcme-idous volume of mailed and other­ wise distributtd mat etia] w'~ich Jmb/i­ ei::•s Miami Peach and It'orida and di­ rally prOll/(1tl'_r its lourism that serves a public purpose ,....hich WQulC aurhnrire. cxpcncitur e of stale or local property, nOl;C'Y or t:,e pledge r.r-loan ci their cr<:'dt in it, hr!!1en.nce."~Empha<,;", '''-l)-'1>l\e::\.) I ccncor ill The p,onour,cements oi tlle ena:Jeellor and agree-with ,~is weli-reason­ cd opinion. The que-stion oi what cuu­ stitutes a public purpose i<; oIten a '!, i­ il\::ult Line. and is one uqwndmg I",q;ely ell the circumstances of each par:icular case. (Sec FIJ.]ur. § 83, Taxa tion, at 51:.?! The Court's role in ITaking such it det errnination is clear. As has been state::! mat)' times, this Court should ac­ cord tl.e tcg-stanve discretion great re­ spect in its uesignatio:1 d those :"ac:lities ~nd thinp 'Ihich serve public purposes, H(}\,'c\'('~, the k~;~jati\'e determination is not ('Cl,lc!U"i,·, as tho: question is one of law 1\:1d i~ ,ub:'cct to julie:;;l rcyiew. In dc~lin1 with the central qnr-stion to he dec iced-whether Chapter f.5_?ii IS uncoustrtutional in that it constitntes a pledge or lean of the credit of the S\«te f)f Plorica in violation of § 10, .\T1icle ;X uI the l-Jorrda Constitution, all ex­ ami'lation and understanding JI tins pro­ \,jsi,Jn is necessary to a correct dctc-mma­ ton of tile cause 'bcrore us. This Court in Bailey v, City of Tampa, \J2 Fla. lCJO, ill So. 119, speaking through Mr. Justice Terrell, incorporated in its opinio:1 an ac­ curate acr ount of the historical back­ grou'1d and poliry L:tctOTS leading to the aCoplior. d ~ m ':If :\rticie IX 0: the Florida Constituvion The fonioll c,f Baiky, supra, rderrrt: to above lS l',-,r­ tir.enr to the cause at hand, and rends as follo\\"s: "Sectian 10 uf articte 9 of cur organic Law was first adopted in 1875 as an amendment :0 section 7 of article 13 oi the CCllstit\1:ioll of 1868. The rca­ son for lh;~ ~mendment W<iS thar , during: tl·.e yeats i:nrr,rdj"tely preceding ns aoop­ tion, the s.are and mnn}' of its counties, ci~ies, and towns had hy Icl;'islatin: \:11­ actment become stockbotdees or l-oud­ hclucrs .n, and had in other ',\'3)'S loan cd their credit 10, and had !JeWlTJe inter­ ested in the crgamzaticn and ope ration Fla. 198 SOUTHERN REPORTER, 2d SERIES8 of, r ailroaris, banks. and other commer­ cia: institu-ions. Many of these institu­ tions were poorly managed, and either failed or became heavily :n\'olv~d, and, as a result, the state, counties, and cities interested in them became responsible for their delns and other obligc tions. These obligations fell ultimately en the taxpayers. Hence the amendment, the essence of which was to restrict the activities and functions of the slate, county. and municipality to that or gcv­ ernmcnt, Gud forbid llidr c'lIgagi,lg di­ redly or i"dircc1i.v ill commercial cu­ tcrprius fM profit." (Emphasis sup­ plied.) The policy reasons responsible for the enactment cf § 10, Article IX, obviously necessary to counter indiscriminately care­ less governmentat spending, permeated court decisialls for many ycars after the enactment of the said provision. indeed, today § 10 of Article IX is a bulwark agamst the pkdging or lending of the credit of Florida tor other than public purposes. Hown'er, as Florida grows the state changes; and as Florida changes ~D riD c om-epts of public interest anc public purpose change. We are not a static nation nor a,e we a static state. See State v. City of Tallahassee (1940), 1-+2 Fla. 476, 195 So. 402. The verbal context of a particular law or constitutional pro­ vision llIay r emain unchanged, but it is inherent in some cases that applica­ tion of such law be meted in accord with the concepts of the time. Thus, the concept of public purpose has been held to embrace construction of an auto­ mobile speedway facility-an unabashed tourist and business stimulant to a com­ munity-in State v, Daytona Beach Racing and Ree. Fac. Dist, (Fla.) 89 So2J 34; construction of an inter-American cultural and tr-ade cent..r, State v. Inter-American Center Authority, Fla" 84 So.2d 9; con­ struction of a warehouse to be leased to the Or-ange Dowl Commit:ee for the pur­ pose at storing floats, material and equip­ ment necessary to the Orange Bowl festi­ val and pageant, State v. City of Miami, Fla., 72 So.Zd 655; appropriation of funds to the first accredited private medical school established in the state, Overman v. State Board of Control, Fla., 62 So.2d 696; construction of recreational facilities , which could be leased out to private enter­ prises, State v, Escambia County, Fla., 52 I So.2d 125; construction of an auditorium. stadium, boat basin and recreational center, State v. City of Daytona Beach, 160 Fla. 13, 33 Sc.Zd 218; advertising, at pt:blic expense, of a city, City of Jacksorl'iille I et al. v, Oldham, 112 Fla. 502, 150 So. 1, 619; appropr-iation of money by county commissioners to assist in holding, l)r to hold a county fair, State ex rd. Barnett i, National Bank of DeLand v, Thursby et al., 112 Fla. 257, 1.iO So. 252; advertising to promote the citrus industry, C. V. Floyd Fruit Col, Y. Florida Citrus Comm., 128 Fla. 565, 175 So. 2~, 112 A.L.R. 562; accord, Maxcy. Inc. Y. Mayo, 103 Fla. 552, 139 So. 121. A reading of some of these cases will dixr-Iose that control or supervision of a particular service or facility by a govern­ menta: body is immarerial in determining whether ::L public purpose is involved. The determining factor is simply whether the service or facility in itself amounts to a public purpo~~. I agree with the construction of the learned cn:lncellor th:;t it app~ars ,'.... the statute does not app ropriate monies merely as a subsidy to j.CL to fur:her its own general objectives, but to acquire and continue the use of its facilities and its lines of communications ti) eftatinl)' alld wbsluntiall.v stimulate ano increase tourism in the state nnd in Miami Bf?(!I;h. It further appears that the conditions prescribed for and the means of disbursing the funds through the Board of Commissioners of State Institutions fairly contemplate the ex­ ercise by that Board of a reasonable dis­ cretion to require appropriate assurances that the disbursement of the funds will I ,I I ') I, i II;I I I , /JII J; ,!' j i 9 O'NEn.L v, BURNS Fla. cue 8S. rts.. lllll So.2d 1 result in the establishment and ma.nten­ nnce of the permanent headquarters of J.e:. in Miami Beach with the continu­ ance of the manner of dissemination and the content 0 f mater-ia! which has been deemed promotional of tourism if. the state and v/nich has induced the ap­ prop-iation." (Emphasis supplied.} That tourism is of the greatest import to our state can not be disputed. II'. State v. Inter-American Center Authority, supra, this Court Quoted with approval from the Ebasco report (of a. nat.cnajly recognized firm of consulting engineers): "'(P. Z..f.): The tourist trade is Florida's principal source af income, 1t5 im­ portance to the State may be measured by the fact that it almost equals the com bin­ ed income from a~riculture and manu­ facturing. ... • .'" It is a matter of common knowledge thilt public governmental authorities, both state and local, have for many years bestowed public funds upon the state chamber of cern­ merce and local chambers of commerce in recognititH1 and ccnaiceration of their ser­ vices in advertising and promoting state and community attractions and ad ....antages. It would appear '0 he a rev~~saI of tid" long-accepted policy in our tourist state if the subject legislative appropriation in be­ !<..lii oi the Junior Chamber Inrernatior.al was judicially rejected on the bases of be vl.>jcc:i0n~ Ilrg~d. 'l'he words "Chamber of Commerce" and "junior Chamber" connote in the common ",ttlligence quasi-public organizations .. htch a re dedicated to furthering public ~~<}l:nms promoting ci',k and community aJ Homages and attractions. It;$ common l-n&8l'IC"dge such organi7ations have long nrords of quasi-public service, They en­ ~oeTalt"t" end stimulate community progress. The Junior Chamber Intern:;tioM\ by its very location in the State will Serve to stimulate tourist convention business in Miami Beach and in Florida. Its head­ quarters building-will be a permanent meet­ i:11'; place for representatives of its m~mber units throughout the world. The build­ ing is also designed to be a showcase for the display of civic and cultural exhibits of said member organizations which will at­ traer tourist interest. Because of the unique nature cf the Jaycee civic prOgrams tte location of its international head­ quarters in Florida. will directly serve as a stimulant to our tourist industry and can­ net help but generate international interest in Florida's cultural, business, industrial and agricultural potentials. ' The appropriation here is quite similar to an expenditure of Dade County from the proceeds of revenue bards to construct a. county planetarium to be operated by a non­ profit quasi-public corporation. This ex­ penditu-e WilS approved by cur Court in Burton v. Dade County (1964), 166 So.2d 4..f.3. There, we stated, text 448: ". • .. The building will be built on county-owned property located in the City of Miami, which is now occupied in part by a county-owned museum. The museum is supervised and operated hy a non-profit quasi-public corporaton known as the Museum of Science and Xatural History. It is contemplated that the Ptanetariam wi.\\ be similarly operated by this non.p rofit corporation as a public set-vice under an arrangement with the County Commissioners. This is strictly an operating, manag-erial arrangement for the convenience of the public. While a fee will be charged for admisaion tv the Planetarium, all expenses 01 the opera­ tion will be paid out of the income and 1',0 part of the procl'l'ds, if -i'!)x......will inu.!-~ ~!t; parties." II h little wonder the Leg-islature has a 'illtory of extending to them public support * * • * • • _~ they serve vnqucetioned public ". * • The proposed Planetarium i).......... well within this category of ccanry func· \.. s..:-l"" • • • • • • 10 Fla. l:JS SOUTHERN REPORTER, 2d SERIES lions. While the operating' non-profit corporation is a membership organiz ation, it is open to any member of the public who wishes to join. It is in no sense a a pr-ivate concern and its members volunteer their time and services in the conduct of its program. The actual beneficiaries of the arrangement are the county and its cniz ens." "'I' • * The proposed method of operation through the facilities of the non-profit quasi-public organiz.anon does no violence to Article IX, Section 10, supra. • * ." Fears that judicial approval of the in­ stant appropriation may be opening a Pandora's box permitting subsidies to worthwhile organizations are allayed by the fact the primary purpose oi this ap­ propriation, as well as the primary benefit derived, is the obvious promotion of tourism in Florida. The things the Junior Chamber International stand for are pr-aiseworthy and merirorioas and emphasize that the as­ sociation is not engaged in activities which are contrary to the public interest. How­ ever, an appropriation cannot be made by the Stale to an organization merely be­ cause it is engaged in a worthy project that might be of incidental benefit to the public interest. But, as previously noted, the cause herein involves employment of the services and facilities of a quasi-public non-profit association the members of which have a long standing reputation and history of performing a worthwhile and proper goven1mental, function. (See, for example, Raney v, City of Lakeland, Fla., 88 So2d 1-18.) The two remaining contentions--de­ ficiency of title and unconstitutional delega­ tion of legislative authority--do not ap­ pear to be well founded. THOR.:-JAL, C. J., and ROBERTS, ]., concur. CITY OF MIAMI, a municipal corporation, Pettttoner, ,. EllIe C. HORNE, Sr., Respondent. No. 35820. sunrcme Court of Florida. April 5, 1!l{;1. ltcheru-ing Dented ~rny I., l\JG1. ..\ction for wrongful death arising out of automobile collision between plaintiff's wife and offender vbo was being pursued hy patrolman. The Circuit Court, Dade County, Franc is X. Knuck. L, entered sum­ mary judgment in favor of defendant city, and plaintiif appealed. The District Court of Appeal, 190 So.2d 409, reversed and the city brought certiorari. The Supreme ~:Court, Caldwell, J., held under complaint which charged that pursuit itself constitut­ ed reckless and wanton conduct and absent evidence of lack of due care in operation of police officer's automobile, city was not liable for wrongful death of third person killed by r.tfender attempting to escape from pursuing officer. ThornaJ, C. ]., dissented. I. Automobiles €=>187 Mere automobile pursuit of offender by police officer does not create highway danger so as to render city liable to third party injured by offender. 2. Automobiles G=>175(4) Officer in pursuing offenders need not do so at lawful rates of speed, but officer should not exceed proper and rational bounds nor act in any negligent, careless or wanton manner. 3. Automobiles (;:::>175(1) In determining whether an officer in pursuit has acted neg"ligcntly or recklessly , .r is to be co ""'ith duty of oflcn exceed r upon mdividua ,. Automobllu Police off oifcnder must care and, in do far acts of off .5. Aulamoblles c Officer is I er to escape, ev tribute to recste a. Automobiles c U rider-Com: p:1f5uit itself co: ton conduct and doe care in Opl automobile, city of third person s ing to escape fr. Frates, Fay, Fl. petitioner. Xichols, Gait: Spence & Hicks a for respondent. Allen Clements amicus curial'. CALDWELL, J This cause is he ran, the District District, having- c' "passes Upon a qur terese" because it officials of a mun sponsible for damal tempting-to escape The District Con the [acts to be: "Anderson was f at a high rate of I. " FIa, 156 SOUTHERN REPORTER, 2d SERIES sccms inesc<.pable Illat in submitting to tIll search. the dc fcnda nts ~'il'l<!,'d to the ap­ parent authoriiy of the Alabama omen .vho was a~:ing \l~ltler color of his orficiut position as a deputy sheriff. There was a tirr:c when a sear-ch ry anv person other than an cjficcr of thc prose­ "'l'''g gcvc'cnmc"t v as considcr cd bcvoud the scope of constuur.cnal pfohlCitions a[J.in<t 1mreaF,nal>le ,,',arches "nd 0(1­ Zl,;feS,J and the evidence obtained by such searches was freely accepted hy the cc>urtL Lut In rccc r.t YCJ.T5 it h,\s co-ne to lic;:ht that our judicial forefathers were wrong' in this concept and that rae same Consritu­ ucn now rorlids th.s pradice.~ There was a.so a -imc when the states of the Union pos scssed the capacity to det ermme thelT rules 0; e\-id~nce on criminal cases c-hen scar-ches and seizures were invclved.P But, "S'a,n, t':lOT~ mod<:HI p"r~eiltion has discov­ cred in the language of ~he founding fa­ thers meaning-s hidden lor nearly a cen­ tury, and it has even more recently 'icen a scer-tcined that th~ Feder-al Consnunion r equircs that Slate courts be bound by fed­ enl decisions on the aJm:s~il.Jili~y af such evidence.v While it has been said 0:1 good authority that "all constitutional que-stions are always open", and that what is done one day in one case "does not foreclose the matter",' a decent respect for orderly government impels us in this t asc to follow The l~,est pronouncement of t l-e Supreme Court of the United States. II'e must, therefore, hold that the trial court cr rcd in rtcei\'ing in evidence the restimonv of Sheriff Hamil_ ton with ~egard to the results of the search 3. \Yppks~. l'nitftl Srrucs. 232 L'.S. 353, 34 ~.C!. 3H, ,,:S I._Ed. (\52, L.R ..\.HI15D, S3-t A.nn_Cas.1C11:JC 1177. 4. Elkins Y. CDlled Stnt~s. 304 u.s. ;lOG. •-\1111:<_. 1')1' 24-:!.::2. SO s.ce. 1-1:,7. I'll. lHS-HJJ. 4 L.Ed_2d 1(;09, rcsi-icst. 5. \Y"lf Y. (',,]OT1do. ::;:8 C.S. ;25, 1J9 S.Ct. 1:;.19, [13 L.Ed. lIS2. of the defendants Un':1Cr the cirCllm~lal1t:e!l outlined above. The judgment is revet-sed, and the <':lSi" is remanded for new trial of the defend­ ant s. 5Tt:R(;T5, C. J., and \\"IGGI~TO;-";, J.. concur. • () :". ""~,,. ""'~ , Frank M. COLLINS, on Behalf of Himself and All Other Tal(~ayen of Ja~ksal\ County, Florida, Appellant, v, JACKSON COUNTY, FlorIda, Apfjellee. No. E-53. District Conn of Appeal cr Ftcrfda. Fh-st Dlstt-ict. Sept. 10, l['G3. Action by ta."pay<;,r in Hs own right and on behalf of other taxpayers oi a county to enjoin the count." hom carry­ ing- alit construction of roads and streets on certain property alleged In he privately owned and in the course of development as a subdivision. The Circuit Court. Jack­ son County. E. C. Welch. J; entered judg· merit dismi~sing the action, 111d plaintiff appealed. The District Court of Appeal, Sturgis, C. J., held tuat whether-an in­ junction should issue pr-ohibrting the coun­ ty from performing work on the roads on 6. )[npp v. Ohio. 3GT U.S. 643, 81 S.Ct.1GS4, 6 L.EJ.2d lOS1. 7. Concurr-inc opinion of :.rr. .Tusti<.'~ Doug­ las m (;;']"'OD ", Wnin":r;;:ht, ;1;-2 U.S. aas. S3 S.Ct. 7!J2, 0 L.EJ:.Z<l 709. 25 COLLINS v. JACKSON COUNTY FIa, Cltp ~s. fla , 15<; SO.2d~.j- t~c'O"'Y that they wer-e privately owned bf­ carne moot where countv, durin~ pendency Affirrned. oi the suit, effectively the roads aWl incorporiltcd thCl!: county road system. acquired title intv to the r~JIl~ctiQn <;:::>21 Whether ,"l injunction should issue prchibuing county from per forming-\\'nrk on certain roads on theory that they were privarely owned )eeal;l'" n:V01 where county, during-pendency of the s cir, effcct1\'ely acqao-ed tllie 10 the roads and incorpo­ rated them into the COUClty road ~pll::m. Thomas C. \Vi:J,;inson, Marianna, for ap­ peflant. Garron & Hilton, Panama City, and Ben F. Barnes, ~rarianna, for appellee. STURGIS, Chief Judge. The appellant rl<llntiff below. in his own right and on behalf oi other taxpayers of Jackson C-JUlIty, Florida, brought this suit In equity to enjoin the county, ncti"g" r'rrough its county commission, from using county esuipmeJJt, materials ar.d convicts in the ccnstrucrion of 101:d~ and streers on certain property which was alkS-eli :0 be pri\":l.tely owned, unirnproved. uninhabit­ ed, and ill the course of development as a subdivision. A temporary injunction re­ strained the COllnt)' fr-om further ,se of public funds, county equipment, ma.eria.s and convicts in the construction of roads ar.d streets as indicated on a plat ci the subdivision, known as Country Club Hill!', recorded in the public records of said county. The complain, fi.ed September 6, 1962, alleges; "Paragraph One "The p:ainUf is a resident and citi­ zen of Jack~(\n County, Florida; that 1St SO.2d--~lf. be is owner of property situated in )ad.:sotl County, rtoJi<J<I, and subject to taxation by said County and Stare for cocntv purpcses : that at all times herein mentioncd he has bcw, and is now, a taxpayer of said County and Stare. "Paragr-aph Two "That heretofore in February 1962, the defendants approved as dedicated certain roads and streets as indicated on i\. s~l[,diyisiGn plat tntitled Country Club Hills and allegedly <i"dic~tcd by Sylvester James Sheffield and wife, Syh'ia SLefiidd, and Rebert Earl Stand­ land and Wife, Xadine St~nd1alld. Time does not permit the obtaining of a cc"tlfid. copy of [h~ said plat tut ;Jlaintiff tenders to .his Honorable Cou r; with th.s Complaint the eng-ira! plat which appeilr, in the records of this County in Plat Book 4, Page 6S; however, a copy of said plat will be ar­ t."lchd to thj~ CUll1pL:.inl as soon "5 it may be obtained: th;lt Jftcr such plat "J.~ tiled for Heard the defendants ex­ pended public funds, USI'r1 county eguip ment, materials and convictsin the cor." struct,on uf said roads and streets as tr.e sa-ne appears on said plat. "Par agraph Three "That the de Iendants have not ac­ ccpted said roads and streets as deuicat­ eli nor do the. records of the minutes 01 the rneering s of the defcl1d"j,t~ renect the passing of a resciuticn establishing' such roads and streets as public county roads. "Paragr-aph Four "That as a r~<;dt of the foregoing the Said defendants have expended pub­ lic funds, used county equipment, materials and convicts in -he construe­ rior of roads and streets on private pr-operty ane. arc at the pr-esent nme, this day, expending pllblic fum:s, \l~lJ\g county equipment, mater-ials and con­ 26 156 SOUTII:ERN REPORTER, 2d SERIES viers in the eonsn-uction of roads and streets 0'1 private property." Plaintiff prayed for a temporary injunc­ lion restraining the dcfcndant s pending dis­ position of the ca:JSC from the further use of public [unds, county cquipllWllt, m:",cnals and convicts in the construction of the ;11­ lcged priv3te IO;tUS and str cet s in the sub­ division, thJ.t the dc icndams be required to proceed "Rainst the o,,-ncrs of the sub­ uivis.ion to recover ":1. reasonable Iee' ior the expenses, labor and consrructicn of said roads and streets, and for general relief. T. W. Patr-ick, Howard Odom, !It D. Hilt \V. A_ Cogburn, and Neal Carter, ill their relation as members of and constiun­ int:" the Board of County Comm.ss.ioner-s of said county. filed an answer denying' the al­ legations contained in paragraphs one to lour of the complaint, chaileng-ing its suf­ ficiency all sundry grounds, and affirmative­ Iy alJq;illg, in substance: (a) That on February 13, 1962, the coun­ ty approved a plat of the subject subdivision and on said date the owners conveyed 10 the county a right of way for public road pur­ poses over all streets and roadways shown 011 s"id plat, delivered the deed into the hands of the clerk of the board of county cornmissiol1ers of s:.id county with the re­ quest that it be presented to said board for acceptance. and tha; at a r eg-olar meeting cf said board held Murch 27, 1962, a merion was adopted acceptng said deed and the rights of way granted thereby. (b) That subsequent the-etc said board; ",. • ,. at a regular meeting dis­ cussed the wOlk to be done and in the manner customary to said Board deter­ mined that the roads and strech in the said subdivision would constitute a rea­ sonable extension of the County rnad system and beneficial to all (If the people of Jackson County, Florida, and thereafter directed certain work to be begun by the said County in connection with the grading of the said roads and streets; that such work was being dOne as a public purpose in the normal ex­ ercise at the authority of the said de­ Icndant, Board of County Commission­ ers, pur suanr to applicable law." That the work done on the roaos and streets­ in said subdivision was lawfully performed at the [lir~ction of the members of said board acting-in their official capacity. The defendant officials prayed that the tempo­ rary injunction hi: disso.ved and that plain­ tiff be required to pay the costs of the ac­ tion, a reasonable fee for the services of their attorneys in the prerniH!S,and all dam­ ages suffered by Jackson County as a result of said temporary injunction being wrong­ fully sued out, Evidence was presented bef~~ the chan­ cellor and on Xovembcr 7, 1952, a "Final Judgment" was entered. Tt,:()nt:l..ins .find~ i~g~.Q~j~ct t~ theeffect that at the lnceP1 tt~c_!.!h:s. smt the county was In fact using; county road-building machinery and con-I viers maintained by the county to build', roads Oil private property, as alleged, that, such acts were unlawful, that injunctive re­ lief was proper under _th':._ ciicumstanc~_ then attending and plaintiff acted of right and in good faith in prosecus.ing this suit. He further found, however, that since the commencement of the suit the roads, st-eers and thoroughfares in the subject subdivision had been conveyed to and accepted by the 1;01lnt)' and had become part of the county road system, The prayer that the county be ordered to concc: fvr the work and nate­ rials used on said roads prior 10 suit was denied on the pH'mise that the property im­ proved has since become vested in the coun­ ty. The judgment recites that in view of the above findings the subject of the injunc­ cion had become moot. Thereupon the temporary restrawing order was dissolved, the C()!\S of these proceedings were taxed against the count)", and defendants' prayer .or attorney's fees was denied, Allhcugh the judgment appea'ed does not specificafly so state, its ever-all effect is to finally dis. miss the complaint and appella.nt treats it as being finalin nature. We proceed, there. AMERICAN CAS. CO. OF RBADING, PA. r. PAN AMFJUCAN BAliK TI•. 27 c,~ L~. FI~" 1::.6 Sp.2d z: hr~. en 1:11': assumption that the judicial :n quesnon. fhis su.t does not present that !...!Jor :n the trial court has endcd ami problem . ...:dn:5~ our consideration to the question of .-\ffirmeJ.·.. h~:her fill"l dismissal was p~op",r in the : r-ht D: the issues made and .hc evidence .wduCN. \\'!GG!:\TO\', J., and T.\YLOR, As­ socia.e Judge, ccncu-.:\ careful analysis of the complaint reo flects that (he only issue presented was «hcther the county at the lime suit was liled btl title to the roads and streets in the suh­ ject subdivision. The chancellor held and we agree that when lhis suit was nled the county had :1Ot acquired title to the subject erects and roadways. While the suit ~'as- ;<"lllJing-the county did effectively acquire :,:!e thereto and incorpo;atcd the same into AMERICAN CASUAL TV COMPANY :~~ county r-ead system . .4.11C on the narrow OF READING, PENNSYL.. I' -ue made 1::)" the complaint and answer-s­VANIA, Appellant, \',!: question oi whether an injunction ~',lfJu\d i,sue prohibiting the CO·Jnty horn v, PAN AMERICAN BANI( 01=" MIAMI ee at.,~":riNroiilg wor k thereon on \he theory tl·.at Appellees.'·<<.:11 streets and roadways were privately I'''·\le<i-it foUow~ that \\ "ell the county ac-I No. 3647. quircd title He issue became rnoct. and thej District Court ct Appeal of Florida.chancellor was correct ir, so hOlding, Second Distr-ict, It is imporranr to note that plaintiff did Sept. 11, 19f'.>3. !I[\[ assert or undertake by the proofs to es­ tablj.sh tn~t the cou nty commissioners ex- reeded their IawIul aurhnntv-c-abused their Proceeding-against surety on super­ discretion-by ca'.lsing work to be per-senr:<s bond. The Cin.:uit Court, Osceola Io-mcd l.hat JiJ I:ot serve the public CDn-County, \V, .\. Pattirhall, ]., rendcnd ve-ocace and r.ece~~ity, hence "fly such con-judgmer.t against the surety, and the surety stderations were outside the scope of in-appealed. The District Court of Appeal, qu'ry .n the trial court, as they are here. .3hannor., J-, held that appcllar.rs failure \\'r have alluded to this state of the p.ead-10 !ill' timel)' notice of appeal, so tbt ap­ ings became we wish to empha~iz" t hat Q~ peal was dismis,ed, was breach of SUPU4 cor-elusion herein is not to be construed as !sedeas bond. rcndeing surety lia',}le to cO~~:.l1g the exPe~diture of public -fun.ds appellee, and that su~:ty was Ii:."!",. for in- on private propert; or the "buse of ,hs-terest from date of judgment agaltlst ap­ cretion that results when public funds are jPelL<lnt to dale of judgment against surety. expended for purposes other than in fur-' therance oi ]:n,..fu! ob.'ectivcs serving the Affirmed. public necessity and convenience. i2! course the courts are always open to r.ear­ a t a "pa}er·s comprai.n u.ar the County Com-t. All!,!al and EffQf *,,123() missioners have abused th"ir d;scret;on in Appe.Ianrs failure to file timely no­ dete~mir.ing that the pul:lic interest ;ustifies tice 0: appeal. so that appeal was dismissed, constr uction at public expense 0: a partiru-was b-each of supersedeas bond, rrndering lar TOad even d·,ollgn the county has legal surety liable to appellee. 31 F.S.A. Florida title to, cr a va.id easement ever the hnd Appellate Rules, rule 3.2, subd. b. ~, and d.u!e , J~-t~~ sh~ri!T.1rd .:.:~~ cc a.nv sner.rfs i::..vc t l-e ,:) C7 1 '\::1' r.Q: aware of anv ~,1C:' ex"re3,::, cr b v »ccessu-v "'3:"~ fl:Hl operate a prosrr am c·rv:-.O; :L; d ccnduit "or t~e ~, D~I''-J.:e .r.te-ests I;' :he . _~~' ,')r.€~ acu-v.es. and [~J.C! : r ::-"c <:1~r:!r5 orfice io mcur .'r~,:'-:-:c~ 'Jr' o';,~:, '-,~.o::;':;lll an i ., ,"L'~, ~,,:s O~~,(" S~:lIiO:::. :~',:,,:e~ a'-"r.c'~::',' to u~e -~, ,'.1," :.;,,,iicd ~llcj-;Dr::" -ot cr-mer-ec :'1:(,,\\'11', I~': <ate 0" C,O~2.t\' 'unds :':la" ;-:::,,1,'" .'-:.,~,,',-,~'r:J.te{j,1, prcccoures prescr.oed ov :g,'l apcroprtanons "r~~l t:"t :0 T, '''c''L:f,s .'eW'J;~~d [I) i:"t',~,,, :':-;,1: ;~~ ';'-OPQ,;,,-:i _,:~;~ _~;7;,~~t~>l( ~~:,'~~~::~:l~~~ ':.n .a. :0, -he secu.ntv services "\"' __ ci ncces sarilv ::1"0:"'" the ,:' '-'~'G '.""IlC," n,,\'~ ':",cor. ",":!:' ,'~.-, ')c.~s;de ::",0 scoce of :L:.~O~ '.' ~Jt tC",'e~~rne2.'.\l ,:~; 0'.:: '.~~ ",c)w"'rs amt dut:es -,~ ),_e\l: 0~ cxcer-ded i,x ,,~~~. "': ~,;(';'::~e'~,;>I;',? ,:-L;::~:lOn.> in ::c [:'" ~"~."~[ ot ;:"v~:c '-"~;~ ;1:\;J;,~~~[:r'~~'e5~;~:~lr "",',C, :-.r,C 'lot .n r.lS olfic;"j -:-.'C:1:, j.roperrv. suppi.es. n~.d ::.:t,;:,e of ,noi:c monev fc". " .. ;"',:3 :,"," .r-.ooeu.on '1: taxes ,',' c.s.. :\GJ', 1J71-28 and 07,3· .", valorem ::1Xe~, Section 10, 'C'! ,~-,.-;l2e:~(-" tt.ereo: iror':'! .l:r<, ,p,v:ate interest or "tc P~c'~cC;: p'.J.t>bc Funes ;InJ. .: Pl,,''-''~~ n'r.lUre, wnen the i'or t ?,,:cr, S':,\,~r, Dts-r:c-. 21'3 ,~9 Sc.Sd 7J9 IFlil. 18521; ad .,: b<' ".-'()m~ '.1",,,:,:,· ide2.tif:ed _;~~~r·~~ ll():J;Xe ~x~~,~';~~~:l'nS~~~~ ,,:5 ~c pCOF'""'-" l" " ',L'~',\;I'.C' , s I ~,5 l:n F. S uer:a.ninr; '?,c~ a;' thE Qrf.ce elf J ")um·,' ,,,c.,, ,h,,:, 1:~ i"ci"c:",J i" ,he '.:c~i '" a'"·J,0n~ir..<: J. ,'Cl.lt1t,· ":''-Cl'" purpClse.' \I',t:'l reS0ect ""'",cr'O~:, Clnd ~~"C~ vf til~ 'd;':';'jO[~~'~~ '~~;~f;\~O~<'~~:I~:~ is >., "~"'-i.',' ,,~,'nl~"ci ",,,6. ,:,,,,ncr~t'" "ujii~ purpose as the prrmarv objective" as recutrcc bv t hc ')~\'~::' CG:;r: «. ;u3tify the performance of such Iuncuons or tte us", or ex peadnure 0: ::A>.bil': iur,J,; :,J defrav the expense, thereof Toer efcre. I ~m of the ClplntOn \ha~ the ce-sonoet. eqw;Jrr,e~,: rt'1ter:~ls, ~rC'~e":'-' suppl.es. and space at" the office of the sberiff may not t e unhzed in p'o"lciir.g ;;l.r;), pr-ivate securitv services COC;-';TIES CO:'-:DITIJ:\'S fOR B.-'I.:\K LO.-\:\ n I:-'IPROn: CQL\iY ROADS I i The Osceola County Commission may borrow lllOl1ey from a local bank " for the pur-pose of improvements to county roads. to be repaid over a J, year period. providing no mortgage on county properly is required and money used fer rl'?3.yrnen~ i:s deriv ..d from ue conunnted county rund, and non-ad valorem tax r..venue. Taxing credit of a county cannot be pledged without an epprovtng vote b\' erectors affected, I: is under-stood that the roads 10 be iroprov~rl are in plaltpd subdivuions with the county holding title to the rights-or-way in fee simple. or with the county having a right·of·way easement for coun:y road purposes. 1: IS ny c;nde~sta:lIilng f~c1Tl you-!ettf.-r ,,:lC f:e,"" otn"r (;J::\lT,u"""":Orl' wlth :n'~ r'l<l, "", Board of County Comrn.ssrone-s of Osceola CO~Clt,\' pr-oposes to borrow money from .ocal b'~n~, tor th", sol.. O\lrpo~ of making ImtJ",v~rne'H' to pu"i:c r'),'.:i~ '" .vrrarn ,ci-,':eu subdivisions. I he principal is to be re?a:d Wll~ mtc rest over a j.vear per.cd of . -ne YJU state that these rcacs are public roads with t:"'," ccuntv holdir-z ru!e !.] :~e ~,;ht~·o:·,wav in fee simple 0,-with the cci.nty hS''-iIli; a rig!--,~,·ni,'.',-~y ,-,~.,-,r.H'nt fv" CO"::>!.:­ .";_1d p'.lCPOo",~, Ij~ve:l tn:s set of "a-t.s. .~nc ~llbJect to ir.e qUJ.::l1catiQns di"L'<-l,~rd:f\ ~~.:s 'lpmiJ:-l, Y')<.lr :~estio~ .s answered in the affirmnttve. "~ctw('. I~S,Gl,1) I' S. '" pernnent part prov.des­ 1]1 The legislative and gover-ning bod," of a county st-all have the powe r vi car":, Gn oo'.mty goyc:-n::wnl, To Lh~ enent not mcol1s~stent \-'11.1 ~enenlJ O~ ,pec:al la'" t!us Jower 5h<l-ll m~lude, but 5r.all not bC' re3tr:cled to, the p'JWer " !, Len <leld ~ojject ta,~<,s, both for COUClty purpcses ar:,:! for the pro\'lditlg cf mun:C:,~ill o~ryi,ts wltri:1 any mumeipal oerv:ce t~xing U:1L and ~p~ciJl "s~e,~me[1r.<;. ('Clr,"'",' <Inc' ,-,"pend m('n~>, "net i~sul' bOClds, relenue ce~n.iica!ej, C~Q ot~er Jht~gG~om' Ofl,~d"t-cdn,,~~,""hIC\-, powe: S':I;~U be ex~rcu;ed in such 3J QCESTIO:": \1af 3 "nard of CO\U,ty ccmtn~i()nef"l borrow moue" from a blink Mpayable over a 3_yelL period for the purpose of makirrg improvementS to countv roads? ~ .4,' manner, I<Dd w':>jPCt t·) B'Jen li;;)i~tions, <is may be provided by general law. -Emphasis supphcd.) S",ction 336.02, F, ~. w.t.q !h~ <>o:lv"l C·II;<JI.:,Dty toads. iaclodinz tj-e power and duty Lll maintain and repair such -oads, in the board of ('(o\.>nt~· <;Jmlllj",sioners: The county commissioners ~rp invested "ith tll€ general superintendence and c'oillro] of the county roads ~nd structures within their "es~cct:v" cou:nies, and mav eS~1hl_,h new r,,~ds, change and ciscontinue old roads. and keep th.. s"mo :n good repair in the manner hf'T~;fl pro,-;dod. Thy ~h311 be r-esponsible for .:~w.Jlisn(og the w\d,h anc grade 0: such roads ar,d stn.:ctwe~ In their­ respective count,,,~ It is therefore quite dear tnat the hoard of county commissioners h,,~ th~ p,w~r to make public road improvements ~nd to borrow am! use money for tha; purpose. Cocnt" funds g<,oera11y can be used La accomplish any Jegitirn1lte co'~nt: purpose. See Burton Y, Dade CO..lnly, 11>6 Sc.Sd 445, H7 (Fla. 19&4). However, there are certain qual.ficatlcus and restrictions upon the county commissioners' power to borrow money for read .,,,provl)tr.ent. The fir-st requirement f<lr (he expenditure of county funds is that tha prcpo~ed expenditure mus~ serve a public. as opposed to" private, purpose. Set Burton v, Dade Co'unt}, ,upra, at 448; City of Daytona Beach .... King, 18\ S.,. 1 (F1a. 193e); Padgett v Bay Countv. :Eli ;;0,2d 410 it D.C_A, F1a.. 1:J66l;Collins V Jackson County, 156 So 2d :l4 " D.C.'\', Fla.. 1%3); and AGO 073-222. Cf AGO O~3'1-t, ccnc.uding that a municipality ;nay not l"-,,f~lly' eX;Jenc! public funds tc repair or main tam p,-watrl,Y Qu."nrd rocas Dr ;:,-rets. S~t 0150 s. lu, Art. VII, S1.,)~" Ccoer., which prch.bits a county from using its taxing power or credit. to bes-efit private indl\~rhl,,-l~ or c<>Tpor"lions; and O'Xeill v, Burns, ;98 So2d 1, 4 t Fla, 19671 (holding that it j$ on!v when th~l"e is ~"me clnarly identIfied public purpose of primary. rath;>r tha n iccidencal, benefit to the pubEc that the. state ,>r one of its political subdivisions may disburse. 1":<,,. or pledge pJolic funds or property to 3 no"grl"ernmcntal o;llJiity), Thus, a county cannot extend ccuntv funds. regardle5S d II'.!:­ source, for the construction. :n:>inumance, Qr improvement of privc.telv owned roads The I')"ds tcr "hJch ne proposed improvements are to oe made rnust, d:erefore, be owned ~li fee by the Ctunly 0: ln~5t be roads over which there is a public rig-hloOf,way c~semeJ::t tor ounty road purposes. You stated further taat the local bank is ronsidering r~\linng a mortgage on the roads as a condition (or the loan Such a condition wo'ald not pernut a county to utilize the proposed financing procedure to make improveme:lts to public roads in the ebseaee of all approving referendum by the electors cf the county. The gmnt;ng of a mortgage would require ~ special ple~tion to be held Lo aoprove the proposed loan since the county would be required to levy a tax co prevent a forp-dosurc of til" road in the event of a default Se" }.;ohrr v, Br~v:,i.rd County Educational Faci.ities Authority, 9.47 So.Zd 304 Ina. 197I). Th:, Nchrr cast' involved the Brevard Cliunty Educauonal Authority's proposal to bClild a dnrrrutor y and cafeteria on the Florida Ir.~ti':l'~ of Technology to be financed by the issuar.ee of S880.QOO In revenue bonds. Concerting the m.or.gage requirement, the Florida Supreme Court in No.ir,-st;:l~d that "<I mortgage with the accom;><myinl: right of roreclDsure IS not coastiuaicnaliy permissible y;rj'.hout an e'ecucn.' td: at 31l. See clso AGO's 07R-IlO, 077,14, 076-120, 074-269, and 073-164 and the authorities cited ".,,1 discussed therein. The principles enunciated in these opinions apply with equal force and "trect to t~e instant inquiry. Additioaallv. !':\e f:Lct that th.. jean IS to be paid over- a 3-ye"-r period of timB could require a validating referendum if the 10'iUl is to ;,e repaid from ad valorem taxes. Section 12, Art. va, State Ccnst., provides: Counties, school districts. r::lunicipaJities, scenal districts and 'ocal govenmental bodies ·...nth taxing "owers may -issue !>ond~. c"TtifiC<Jles of indebtedness 0'-any form of f= anlicipatwt! certificates. pa.vabir [rom ad valorem ta.t.lltwr. and maturing more than [1l ...,I"" mo"/h.t oner isslOQnce only: (a) 10 'inanee Or :dillanee capital projects authcrized by law (Inti "niy whcn opprow'd by Vole of lhe electors wl-o are owners Qf freeholds therein not Wholly ","""pt from taxation rEntphasis suppiiec.I 40 .. --'0",",--., ~__~"~''~·~X~l·~AbL. REPORT OF THE ATIOR:\EY GEXERAL 0:.9·19 ,',~ Hollywood, Inc v, Brcward County, 108 So2d ";"52 rFla 19591, and Hollywood, Iroc. v, :>:ward County. 90 So.Zd 47 (Fla. 1956: (holding that When a county acquires nroper-ty ,~::jC'ct to a mortg"ge, Inere ,,",ust be a valid...ting refereudumr ~';::2ily, it must be cautioned that such a financing proposal is permissible only if the -",:r<:y borrowed will be repaid solely frcrn uncom-r.ined coullty ,unds, such a~ ,,,cel."'lCk :'.,~_ is, U~"'l" ["",s, excise Of ucense tax revenues. or the county's share of the state revenue­ -Jir:g funds: ad valorem taxes cannot be cornmined either direcuv O~ inrlir~ctly for ,;;:, r~P'lym~nt_ Repaymeot f,,:llll ~d valorem taxes would activate the proscriptions of :2, Art Vll, State Coas-, See Xohrr-v, Brevar-d County Educat.onal Facilities \L:::'ori,y, supra: Hcllvwood, Inc. v. Browned County, ~lJ.Pr'1I, and AGO 0i7-14, Funher. . ;~,~ county plans to use Its portion of the state revenue-sharing funds. it cannot pledge ,,~.,. portion cf those funds in excess of the county's "guaranteed entitlem ..nt" Sec:lOn 21S,21,'!3i. F S., defincs "guaraIlleed entitlement," and e. 218_25, F, S., in relevant part, : :c"ides: Locat governmems sho'l not use any po-tion of the moneys received in excess or t.'te guaranteed entitlement from the revenue sharing trust funds crc:Hed by th:~ p;lrt /() as.i!:f'L pledge, or set aside as a trust (ur rhe payment 1>1 principal or interest or. bonds, tax anticipation certificates, or elly other [orm of i n.debtedness asui rncrlr shall be no other '"~<' resenr:lion on Ihe reuenuet shared p,",'O/<ont to this pert. (Emphasis supplied.) ;!-lord",.". the burrowed mooey could be repaid from moneys accruing to the county From -ources other than ad valorem taxes, provided DO other statutory or consuturiona l :"~:!'il:t;Dns n3'"'' ~n pbeed en the UN' <)f such funis.,:1 conclusion, counties are permitted to borr-ow money to be repaid over a 3-year :'~;-;Dci for the purpo&e of mak:ng improv~ml'n'_~ to tounty roads prcvidec DO rnong~ge ~ recurred and money used for repayment is derived from uncomrni-ted funds and non­ .•rl valorem tax revenues. Ad valorem taxes or the taxing credit of the munty ,,,nDot be ~'er'fTed "bsent an approving referendum by the electors. Oi9·19-Match 5. 19i9 COU~'TIES ;--';O'iCHARTER COU~lY "OT AliHOF.IZED TO LEGISLATE AGAIXST CERTAl);! DISCRl~lIXATIO\'" OR TO F.3TABLISH HOl'SI:"G REL.A.TIO:\S COM:-.llSSl0N FOR RELIEF To: James G. Yoeper. he C(lunly Attorney, Fort .V....-ers Prepared by: Joviyn WiL'on, Assistant Attorney General Ql·ESTlONS: 1. Does a nonchar-tez county have the power to adopt an ordinance pl'ombiting discriminaticll ill the areal! of employment, nousing, IU-ld publi" accomrccdauons end to provide tbat a ..iolstion of such an ordinance is a misdemeanor? 2. 00('9 a nODcbarter county have the power to establish an independent co~ion. appointed by the board of county commissioners bur not subject to any review by tbc board, which would recei ..e and Iavesngate complaints, hold b eartngs, take evideeee and testimony, make findings of fact, and, upon a finding of discrimination, issue ordeN fo~ affirmative re-lien 3. Assuming that the above questions ar-e answered in the negative. U! it necessary for a noncharter counev 10 obtain a speci.... act of the r.egtstaeure in order to prohibit dlscrtminetoey pr-acucee within the county? . SCPEP.!'\"lT:,-:nE,\l -ized to appoint mar.. than .t Cf)unty courmissloners to ads, anc competent road builder. /bli~ roads. All work on the \ ttJwn~ shall ce under the responsible ro and subject to <ll':>n 0: the superin,~ndll::tt 'ured in s. 3:A,02m, F, S. is ~~",: cspect to transportation fac:!it:,·. g eneral legislative intent is c. : .oortanco Code where there ,; ­ ~mentin~ the (ounty no"",,, :--. "[p]covide and regulate ar:~" :b' in the county S, 1~5 01 i ­ -nanner incorsistent with .il~""­ JU71-<::!3: ,,~a":5 "I'U' compatible w:,~r. ':..r means that whtn :.~., lpon a matt~r in terrr.• t~.. " should control the matter i.~, .e, pre-ode eo the cot1t~;,c:. ction as to the manner ,~, .. ' '~5 oeing performed i;1 ,I:::· commissioners mal' a:,:<' 0""1 thc p\lblic r~',<; oervision. subject to l.~" . ',.. r hrs provlQion 'nCj('3'",~ ."" 1 in countv g.)..ernmc-t: :. bent was 'selected bv :;-,. it or elected by th~ ~ •.. h. 4769, 1,~99, LJw:; c' 1tl'ndelll bv the b('Il": ' . .uties of the oos.n-n r-r .... , ,11 "fron ofl',('" "." ','. Irir.g-al\ of "h,c:-..,'.. -cord: Section 5 ,]-, ~ '. ns.mon of t;,e ~l.;,.,"_.,. ',.'''naced th~ provisions respecunc his-ap[lC"t1tmer,~ and uu\ie~, ~"c! ~~o",cl",j lor r()'l<l "J'.'pr~""""" to sup"rvi~c th~ roads in the several road "subdivisions O~· the coun:v. The :'355 revision of the transportauoa taws ro.rce by Ch 29::l~5. 1955. Laws of Fiorida. carried forward the P""ViS;Dn~ of the prcol bl"~ In substantial!v its presEnt form. 5, ,j:Jb.a4, F S, Bur. there IS :10 indicauon ro.« there was any mtentton to chance the .ncino.l :'~s;islati"e «t-ent rete-red tn "'J,,,..,.,~d,,,t '3, .1 '''',,1<' ir.currcent oi a smgte ,)(,~".io:l ,n co.intv government. Your qvesrron h, t~e:'~for~. a ns.ver ed .~ t:,,-" -ec.n.v­ Oi5-309-Uecembet 22. 1915 CIRCL'IT COl'RT ClERK n:"'11ES Ri:GAKDI:\G R£CQRDATIO:,\ OF' 'JED:CATlO~ OF ROAD RIGHT-OF·\\'A Y TO cor-vrv T,) Wdl,,,m F Eduards. Citrus COH,,:.'.' Allam""", ["ta"e;s .'-',p,,~cr('d 'iv: .\.'orlll< S, Frl~drn(;". .-!.s"istanl ..-\.!!"rnn C,:!!,:,"r::! 1. Is th" clerk required to record a deed dedicating a road rtght-of­ way to t he county even Inougn it has not been formally ace ..pled by the board of ..ount}' c()mlt1.istlioll"r~? 2. 1~ the mere offer to dedicate and its subsequent recordation br Ih .. clerk's office suffid..nt !O t~ansf",~ lhe litlo: to the proper tv descetb..d ther-ein so that he property ap praiser is required to remove the d~scribo:d pr opert ....from the tax rolls and also ll11owinl: tax monevs to be e,~"O:/lded upon the described property'! . 3, Does the board of county commissioners hav.. the authority, 1.>.­ ~~solution and or nome rule ordinance. to direct the clerk to m:'lke a notation upon the instrument prior to recordation that the (.escrib<!d proper-tv hilS not been accepted by the board or coumy commissioners and therefore does not constitute a public toad? -to Does the board of county commissioners ha'e the auttior-ty to goo b",,,k thrOl.:gh the prior recorded documents which have pr evlcusly been filed in the official records, obtain certified cop!..,~ theref~om, note ~n the certified copies that these particular purported dedicaucns have never­ been accepted by the board of county commissioners ",nn do not rh er-etur e cnn.~t;ture public road>;, and rarecord the cer-tified copies? The clerk of the circuit COUtt is required to r""'ocd Un_ d""d pro[Jl'rl\' .'xecuted upon proper payment of tb e cler-k's servtce cha rgc If sur-h d~"d is otherwise entitled to recordation under S. :!S,2:;:!, E'. S A cnurny m:ly expcnd moneys upon dedicated rO'ld~ only if such dedication has been accepted and Is open \0 o-avail,lll:" fur public U,;f' as a county road. Pursuant to ss. 192.011 and 193.D85, F: S.. the county pri)pert\" a ppraise r is not required to remove dedtca t .." ~""d., or .lr""b from lite nal propo:rty assessment roll. and he cannot d(! ~o unl".~s ~urh d..dtcanon or dedications have been accepted by th,· ('O"I\t,\', Th,' ..""n,," rnust own lIm f.... tide to such dedic;ated roadbeds or ~ln'\'t~ in ord er far the really to escape taxation, either a.., exempt Qr unrnune property. The board of ~OUtlt}' comrni,...,ilJlll'n do,',", not !tJ.\C the 3.uthority to direct the clerk to make 11 notation on a d~,'d. or :J ~(JPY th~reof, before Dr after recordBl~ion tnat th .. p~op.'rr~· th",."in uescrtbed has not been accepted by the county and tht.'refore does not constitute a pubhc road or street. Any such notations so marie nr,' ..... ill1Out JegnJ efficacy. AS TO QCES":'IO:-I i- Section 28.222, F. S., provides that the clerk of the circuit court _,hail rt'C'Onl """""'. er,umerated d-JNlments upon payment of the service charge. The .....em '·~h ..>ll-:& _ statute has, according to its normal usage, a mandatory connotation. '\<,>,,1 v. Dr~','M, Il" Sc.Zd 529 (Fla 1962). ":"hc clerk is an officer of the court whose dut.es are mll';io:..." ... and. as s\.ch, he does not exercise any discretion. Pan Am..rican World Ainu •• _ Gregory, <;11 50.2d 669 (3 D.C-A. Fla., 1966). Accord: Attorney General Opinion llH" Biennial Report of the Attorney General 1943·1944. p. ne. wher-ein my p"-'d~ st;1tf'd 'hal the clerk must r"'curd a deedproperty executed in accordance \loll" J',:,;,t...t.. nlrhough he deemed the description insufficient. ':'I>IIS. if it "ppca~ t)-,;;L the instrument IS otherwise entitled to recordation uruh" • ::8.222, F. 3., it must be recorded by the clerk if property executed auu upon pm;_ payment of the clerk'.'; (~e. Therefore, your first question is answered in the affinnative. :\S TO QCESTlO'\1 2: It is well settled in Florida that a publir-road may be established b)' dedicnnon Deughertv v, Latham, 190 So. 7~2 (Fla. 1939), and cases cited therein. Such dedirntloll may take' the form of a deec: or ana.orrous thereto, end som~;imes a variant tbereor, i. the"doctr-ine of dedication by plat. See I:) Fla. JL:r. Deduxuion s. 11. Roads may ,,1<0 bot· pre.sumed to have been tedil:ate,t~.S"~lH>n 33':'.31,.F. S, An olfu 01 dedication continues, and thus may be accepted. uruilit IS revoked or withdrawn by the grantor. CIty of ;l.1i""" v, Florida East Coast Rail w ",y 1'0,84 So. 726 IFla. 1(20). Acceptance may be by formal or informal act of the county or by actual use by the public. Robinson v. Rivipra. 25 se.aa 277 (Fla. 19,6). Accectanee must be c1eur 'y 'IllU uaequivcca lly proved. Roe v. Kend~i{"k, :WO So. ::194 'Fla. 1941). There is no estab.ished standard by Which the use neceS&lry tn determine an acceptance by ~he puote may be measured and declared to be suffic,""nt sufficiency o~· the use depends upon tne particular circumstances cf pju:h C:l,;e. ~ 10 Fla. Jur. Dedication.' 18. And such mixeu questions of Jaw and fact must be determifll'd bv the courts in appropriate adversary proceedings initiated fer tbat P'.u'POllC. AtLorney General Opinion 074·222. The fundamental criterion for the expenditure of county funds is that the expenditure will ser-ve a cnunty, as eOtllrllS!CC W a private, purpose. To justify the expenditure of county fends upon a road ;hat has been dedicated til public use. '.he c.cdicatiOIl must have been aceepred and the road ruust have become available for use. oris being used, bv the public. Padgett v. Bay County, 11)7 So.Zd 410 (1 D,C.A. Pla.. 1966); cf AGO'!; 0~7·292 and (In.222 Section 193.085 F. S. provides that the proper-tv apprais.er shall illsur~ that all real rroperty within his county IS listed and valued on the real property assessment roll. However, It Iurtber provides that "[sjtreets. ro"ds, "od :,ighwa)'s which have been dedicated to ;; mumc.pantv. county. or state agency need not. but mali be listed." Section 192.0:1, F. S.. requires the property appraiser to assess all property located "ithill his cOl;nt.y, but provides tbat roads and highy;a~'s wnich have been dedicated 1.0 the county may be assessed, but need not be Th'ls, tna property appraiser IS not required to remove dedicated roads or streets from the real property assessment roll, and he cannot do so unless the dedication has been a('cepted b)' the county. The county must own tr,c eel' lit~e to the roadbed in order for the property to escape taxation, either as exempt or immune property. Attorne,· General Opinion 073·257. AS TO QCESTIOl\S 3 A'\1D 4: The clerk's duties and authllrity in regard to thf;l recordation of instruments ace specified in s, ZB.222. F. S. As noted previously. the clerk's duties are ttinist.erial, Pnn American World Airways v. Gregory. supra, and he may eXerClSe only such authority as is iiTanted by, and in the manner prescribed by, statute. Security Finane.. ('--0. v. Gentry, lQ9 So 220 (Fla. 1926\. "hus, as the duties of the clerk with respect to the recordation of initrum<!Ot:I are specifically provided for by sta.tute, the board uf county commissioners is without the authonty to direct the clerk to make notations on a teed, or II copy the-reof. either efter­ or before recordation. that tho<! property therein described has not been accepted by the 558 __,,,,",,",,,T;AL REPORT QF TH~ AITOR;\EY GE\ERAL '.17.5--310 ,"uilly and therefore does not constitute a public road or street. Any such notauons made .,~. meaningless und without legal efficacy. However, of course. pursuant 10 s. 336.09(11, F. S.. the board of county commissioners ',,1$ the power-with respect to property under its control to vacate, abandon, discontinue. ,,,d cJ05l~ any e.nslir.g road, and to renounce and disclaim any nght of the county and ~~"J public in or to any land in accordance with the procedures therein prescribed. Therefore, your third and founh que~li~'ns eve answered in tho;> negative l"'i5·31Q-December 22, 1975 FIREARMS APPLIC'A:-'! FOR PERMIT TO CARRY FmEARM MAY NOT SATISFY RONDIl-:G REQUIREMENTS BY CASH DEPOSIT To: Rolph B. Wilsor., St. Lucie County Attorney, Fort Pierce Prepared by: Ala'}' Jo Carpenter. Assistant Attorney General QUESTION: Mayan applicant for a permit to carry a firearm, pursuant to s. 790.06, F. S., post a cash bond in lieu of a surety bond? 5UMMARY: A person applying to board of county com.misllionen; for a permit to carry a firearm under s. 790.06, F. S., IlUIy not post a cash deposit or cash bond instead of a surety bond. From the context of your Jetter, I assume the question actual.y is whether a depos:t of cash, although conditioned as for a bond 'Jut with no sureties, is acceptable instead of 11 Sllrety bond for tho purpose of complying wir.h s. 790.06. F. S. The statute to be construed here, s. 79006. F, S., provides, in part. that county cornrmssrcners may . grant a license to carrv a [firearm}, only to such persons as are of good moral eh"racl-t'r. .upon ~"ch pcr~cn giving a bond pavable to the governor of the state in the sum of one hundred dollars. conditioned for the proper and legitimate use of said weapons, with sureties to be approocd b)' the county commissioners, Ordinarily, "bond" imports a written instrument with surety or sureties gua~ante"ing faithful performance of the acts or duties contemplated. Fidelity & Casualty Co. v. !\iles Bank Co, 71 :-I'.E.2d 742, i49 (Ohio App, 1[146); a parte Cattell. 64 ~.E.2d 416 (Ohio 1945). See also 12 Am, Jur. 2d Bonds s. I; and II C.J.S, Bonde e. 1. The CtJllell court went on to say: "Where the statutory law of the state prescribes the terms and conditions the Court had no authority to prescribe or accept a deposit of money in lieu of the bond required by [statute]." Caftell. at 422. This ruling is in accord .....ith the well-settled rule c>f statutory construction that a legislative directive as to the manner in which II thing is to be done impliedly prohibits its being done in any other way, Alsop v. Pierce, 19 So.2d 799 (Fla 1944). TI"" rule as st.nU:d in Akop is simp:>' A vana.llon of the exclusio rule of statutory construction: The express mention of one thing is the exclusion of any other. Dobbs v. Sea Isle Hotel, 56 So.Zd 341 (Fla. 1952). The application of this ruJe to the legislative directive that applicants for a license to rnrry a firearm shall give "a bond with sureties" would seem to prohibit the use of a cash bond in lieu of a surety bond. An examination of other statutes relating to required bonds shows that the Legislature has distinguished the different kinds of bonds and bae provided alternate ways of satisfying a bond requiremer.t when it is deemed to he appropriate. For examp.e. e. 559 OSH? A.N:-.'UAL R~PORT or THE ATTORNEY GE;>;ERAL '~~r~h:~ -::':~' Ccmrmssroners 01 ~\'en-Iad,,~ r:r",itlr./;e Dist r-tct, 8~ So 346 (Fla. 1919\; Accord, AGO 074·169. Addittonallv. such go,·"~"m",,t;;l emuies must transaer official bu,in~s~ II: Hlbsta"tiatly the ITHl.Ill\eT ?rtscrlbed by law, adhering to rules of l,rCl""ciure tstablish.od by legislative act Id. }:o runo:f procedure is Hpre~sly <>~ iml'!i ...d)y ll"th(,~;~ed by ss. :<98.11, 29812 FS Or <:~l. ,6455. Laws of Flofl<ia HDw~\"er s. 808,11. "hich is Incorporated by f"f.re"c", into s. :.!911.12, does make express proHsi('''S <therW1S~ Ialnd the three pctsc ns receiving tIm highe~t~,"rd;er of "OIH snal! b~ deciated fi~C!ed as suaerviso-s (Emphasis supplied.I .:.. legisiM;\'" dirc<ti\'t~ as to how a t!1irg shall !>" d""" ;~, ill effect, a prohibition ;lgain~t it !>p;ng done h ;my C'~!>H :n:ml'\t'r. Alsop \'. ?icrce, 19 So,2d 799 ~Fla. J9441, Cf. '.he e]..c,io,,~ pr-ocedure for the Loxahatch~ River Environmental Con, trQI District, set forth in cL ";5-·n~. Laws of Flo-ida, which p"pr<l-ssly l'wvldes for a runoff e'ecnon. Theuf"c". unk"'s ""d until le;Jslatively '" j"d,:;ally deter. mined otherwise, r cG;:Iclu,{e th,,: the u\>e 0; a runoff prccedura i~ una:Jthori~ed in \hi, instanze. AGO 081·18-l\-hrch 4., 19tH COU!'-l"TIES POST1XG A;.JD :MAf:->TENANCE OF TRAFFIC CONTROL D~VICES ON ROADS :--'01 PAR1 OF COC!'.'TY ROAD SYSTEM T~. MT RIchard R:. Efiif/RlolL {'nunt.vAI'm'-''':'. Palm Bn"h Coun/.y Prepared hy .'1.1I"e C"rr,,,. T"rr:', A.\.'ISlonl Alt",rne.v r;c,,~c(J.1 QUE!'l,IONS: I. I1<ws tbc Board (If County Commissirmees of Palm Besch County have th o "'uthorily to post "enforceable" tnffie comrot devteas (stop signs, yi~ld signs. speed limit signs} on "public" toads which have not he<>n (ormally accepted b>" tl1e Board of County Commas­ sion-ers as part of tbc county road system? Z. If the roads must be formally accepted by the Board of County Commissioners as l'ounty roads, can the Board of County Com_ missioners of Palm B<e.acb County, Flor-ida, accept said rOlOd", (or traffie control jurisdiction "~thout obllgaling itself to mll.intaiQ said roads'! 3. If the answer to either Qu.."tion On~ or Two above is in the ..ffirmati...·" .....-cutd Palm Beach ('",unty be liable for automobile lll'ddents th"t may OCCUt due to inadequate maintenance of the roads? • 4. ran Ihe &>a.rd u( County Coremisaioner-s of Palm Beach Coun­ ty. Flor-ida. enter into an agreement with an indepcnd.mt water­ control district to ptovidtl the above referenced traffic ecmrot functions on "puhllc" rQ3d$ which. are eurrently being maintained by said districts? SUMMARY, Unless and until judicially or-legislatively detetminpd otherwbe. the County Commteston ;~ gen"tally author-ized by law. but not required, 10 post and m:ti"t"'in traffic contrGI devices on the "pub, 50 Q81·18____.~,\NNU"'.,AL REPORT OF THE ATTORNEY GENERAL~_~~ lie" roads in question (roads w hi~h are part (If a complex network of ~"bstandil..d "public" shellrock roads in unincorporated areas of Palm Beach Count)', some created by posting anti vi'O'wing. some created by decl a-atfons of lH.selllcnt, some built by water control districts, some dedicated by subdivision plats), and to de­ fray the costs thereof from count}' funds; the exercise of fhi. au­ thority is not conditioned upon ''formal acceptance" of mamte­ nance respor.sibilities over such roads by the County Commission; the qUf'~tinn of whether Palm Beach County would be liable for automobile accidents that may occur due to inadequate mainte­ nance of the roads is a judicial qued;ort which this office is nut empowered til determine; the agreement into whkh the Palm Beach County Board of County Coeonrsstcnees proposes to enter-with an independent water-control district to provide traffic contr-ol func­ tions on public roads currently being maintained by said districts is unnecessary :'Inel inapproprintc, and would have no legal effi· cacy since ch. 3Ui vests no traffic control authority in such districts. ¥Iltlr inqu,"y nates th~t there exists, in man}' unincorporated areas of Palm Beach County, a complex network of substandard "public" shellrock roads. You state that these roads have he"n c1'..ated i1'. V"1'i<lU~ ways, "0111" dedicated to the public on alder platted and recorded subdivisions, some created ~s a result of p()sting and >'iewing. and same created bv filing of c"c1anlions of ,,~scment ;"!""t, however, were built Over the veal'S bv water control districts in conjunction w:th digging of canals and the roads so io~med have been subsequentlv used for access t.~ mamtain the c"nal~ and the water cor.trol districts have mamtained such roads for many years, paying the costs thereof from special assessmen;s levied against property o wners Il'ithin the districts. Yeu alse slate that the puonc has used these roads for many years, Your letter indicates that recently there ha\'e been several serious automobrle accidents on these rnfld~ find thO! B""rd of County Commissioners .....ould like to provide traffic control devices for these 1'0"d5 by posting stop SIgnS, yield signs, and speed signs, but is concerned that it mJght, by so doing, be obligatcd to prov".l" maintenance for such roads or expose itself to possrb'e tort liability. ,1,,5 TO QmSTION;: You questicn whether the Board of County Commissioners of Palm D"ach County bas the authority to exercise traffic control jurisdiction over these roads and to po'Urar.ic control devices (stop ~igns. yi~Jd ~ign5, and speed limit sift'S) on "pllblic" rcuds which have not been formally accepted by the Board as part of the county road system. From the facts stated in the inquiry nnd vour fir~t qJ"",tion. it appears that none of these' 'public" roads, or tne dedication thereof to the pt.blir o-easements ~anted for such public use or the roads constructed and mail'luoined by the wat"r 00n1,01 districts and used by the public for many Years. have been "formally" accepted by the County Comrrusaion or duly established as COUrLty roads or prop' erlv mad!' a rart of the ~ol.lnty wad system. Whether these reeds or any of them have in fact and law been accepted by the eounty or whether the county has acquired a rig-hl·of-way or easement fOF county road pUfJIo~es Or the public hag acql.:ired the righl to use the same to travel by motor vemc!e are mi:o:ed qlle~tions of law and fact whi~h this office is without the requisite authority tn Ildj"dic"te Or ~ettle and which mu~t be determined by the courts in appropriate adversary proceedings initiated for that purpose. The general rule IS that county funds may be expended only for til" ron<truction, maintenance ',,1' repair of count)' roads. See Padgett v, Bay County, 187 So.Sd 410 (1 D.GA. Fla .. 1956); Collins v, Jackson County, 1£6 80.2d 24 II D.C.A. Fla., 1963): AGO's 073.222, QiE.309, nS-88. ct: 51 • • • AXNUAL REPORT OF THE ATTOR~EY GENERAL A,GO ,1'7918 Th'~~, ,f th"~,, "public" reads are not ~OUf\ty Toads and a part. oi the CQ~nty road system they mav nQ' be m~intai"ed or repaired by the county o~ countv funds expenced therefor: therefore under this gef'Cra! ....Ile, ~"\ll"lly tends m.y ~ot be used to defray the costs (If installation and maintenance 01 th~ tn.ffio control devices and ,igns in q""~tion, H~we""r, urml judicially cr legislatively detemuned otherwise, for the cual state and county purposes provided for in the Flcrida I;"ifm", Tramc Contrct Law, which does not limit its application or its enfor~eml.':ltto counl", m,'!int"i"ed "(lads a"d which applies anY'...'here thro:Jghout the county where thf public has lbe ril'ht to If,'!""l by motor vehicle, I have the "iow tho county b authenzed by law, but nol required, 10 exerci~", traffic control junsdtction over the "public" roads i" 'l","',iol'l and to post and mainta:n enforce­ able traffic control devices and signs thereon, u\d to defray the costs thereof from county funds. SfCtion .'IlfU06 3), F.S. e"p,·.,~~ly pr-ovides, in pertinent part: SectiN\ 316.006, JurisdktiOrJ.-JurisdlClion 10 control traffic is ueslPd as follows: 0\ COlJ:>JTl:ES-Co"m.les shall have onginaljumdir:tiOll over all strIPe. ~,.,d h Igil ways located Ili,n in Ihdr boundaries, except all state roods and lltoS/' ~treelo; o~d highways ~prcified in .~ubSeClion 12) 'regarding mumc\· palities;' a,d ,,'uv place end mm,.,l"in su~1: traffic (o!ilro/ deuic".~ ,,,hich (eJll/arm /0 the man",,1 o"d spc'c,..Icali""s o(tf!e Ve.varrment of Tran.lpor­ tatvm upon all streets and highurcvs under r/"';r ""iginol jurcsdlClW'l as they shall deem nezeesorv.. to indicate and to carry OU\ th~ l'yovis,ons of this chapter-Dr 1.0 reguJote, warn. oc guide trartic. (Emp'laslS supplied.) Thus. s. ~1£.OO6' 3), F.S" expressly grants counties the authority to contra! t,,,me "ever 01/ streets an1 h,ghwlIys lo:;ated w,thin (heir boundaries, except all state roads alia these streets and highways [subject 10 mt:n;clpal controll " IEm­ phasis ~upplied.': See OISO SB, ::I16,072n) ana 316.640(2), respectively. providing that t'ie prcvisicns of ch 316 shall apply tv the (>~eratiol't of vehicles upon all countj-mainzatned Hghways and wherever w~hiclp.s h",,,,, t"e right to travel and the shcntrs ".'TIce shall enforce all cf the traffic laws of the state on 8\\ ~treetb (lnci highways In the county and elsewhere throughout the county wherever the public has the right to travel by motor vehicle. Moreover, s 3 t6.008 expressly provides in subsection n1'bl that: The provisions qf t;iis chapter shan not. be def:m"'d to pre,'ent local authorities [iaclvdtng a.r public officials of abe count.ies, s. 316.003120), r,S.I, with respect Ie' str..et. and hiSh.....av's ulld~ their jurisdiction and within the reasonable exercise of the police power, trom: • Regularine traffic hy mean, (Of po:ice otr.cers OJ official traffic controt levices {Empr.asi, supplied.; And s. ~16.0i2n), F.S" provides that th!? provisions of ch. 316 shall apply 10 tile ope,·alien 01 vehicles upon all county maintained hiJ<hway~ and where""'c v"hi­ C'IO'Shave the right t<> lr""el. Ct A(i-O's V75·1Z3, 073·323, 072·383. Section 316.074(1) requires the dnver of any vehicie to obey any tralTi~ control device applicable thereto. Therefcre. I eeeetude that tile Board of C)Unty Commiuioners has the authority to poFrt tramo control devices en toads. under its junsdictron, as noted above, and elsewhere vehicles h~"" the right to travd wutun \i'te county. This aurhorrty IS tempered by the uniform standards for tr<'lffio centrol devices set 52 ANNUAL REPORT OF THE ATTOR.'-'EY GENERAL OS 1·IS forth in s. 316.0745, F.S., as estabhshed by t he Department of Transportation. Note also that while s. 316.oo8tl-:j) grants counties general authority to alter or est abhsh speed limits on roads within their jurtsdict-on, s. 316 :89(21 (regulating speed on "countv-mamtained roads") ....""ld appear to b" a ~p""l;c llm't"tion On the authority of counties In this regard. Thus, In the absence of any judicial direction, I am reluctant to say whether counties possess authority to set speed limits on the r-oads which are involved in this question. See ol~o s. 3166-tO. FS. (sheriff to enforce all of the traffic laws on all str-eets and highways of the county and elsewhere throughout the county wherever the public has the right to travel by motor vehicle). Additionally, I conclude that the above-referenced statutes, while authcrii:ing counties to control traffic and to post traffic control devices on all streets and highwll.ys and whenv"r the public has the ri~ht to trc.\'el by motor vehicle within their jurisdiction, do not condition the exerci~e of t:,is authority upon "formal acceptance" of maintenance responsibilities over or the assumption of the rdspori­ ;;.\biht~' for the operation and maintenance of such roads by the Board of County r:nmmissinn..n. Cf s. 177.0S1f21, F,S., pT~v,di"g in '''"ard It> the dedication of easements, rights.of.way and streets on plats of subdivided lands that approval of such plats by the County Commission shall not "be construed as creating an obligation upon uhe County C.ommlssion) to perform any act (Ii construction or maintenance WIthin such dedicated areas fx,,~pt whpn the obligation is \'oJunt[lr· ily assumed by the ICounty Commission.." C( s. 177.08H2) with Robinson v, Town of P.ivi!'ra, 25 So,:ld 271 ;Fla, 19461, which holds that acceptance of an offer of dedication for road purposes may be by formal resolution, or "by pubhc user," and With s..'335.01, F.S., which defines and desrgnares "public roads" for the pwrposes ')f en. 335, f.S., to be "all roads open to travel by the public generally and dedicated to the public use, according to Jawor by prescription. and roads which are constructed out of public funds and dedicated for general public usage " Thus, based upon the afcrecited statutory previsions and authort­ ties, "-nd unless and until judicially or lepslativ!'ly determmed otherwise, j conclude that the county is authorized by law to exercise traffic control jurisdic­ tion over the above described "public" roads and to post and maintain legally enforceable traffic cuntrol devices and signs thereon, even though such roads have not been accepted hy t.he co"nty', gov~Tn;ng body as part of the ~ounty ro..d system. AS TO QUESTION 2: Since it is implicit;n my response to your first question that the "public" roads in question need not be (ormany accepted by the governing body of the county as county roads, it is not necessary to respond to your second question and it requires no specific answer. AS TO QUESTION 3: As noted above, counties are authorized, but not required to exercise their traffic conl;J'ol powers under ch. 316, f.S. Accordingly it is a prerogative of the County Commission to deterenee th" ,cOpl' f)f their oJ>erations ;n lhis re~=d, within the bounds set by ch. 316, and in turn to accept respon~ibi!ity for, and to properly execute such authority once undertaken. However, whether the exercise of traffic control jurisdiction over and the posting and maintenance of the traffic control devices and signs on the "public" roads in questio~ as considered in Question One would operate to fix potential tort Iiabitity on the county for any motor vehicle accidenta that might occur due lo the negligent maintenance of such traffic control devices and signs by the county is a mixed question of law and fact which this office IS without the requisite power to determine. I note that a Tec!'nt dl'cision of the FloTid<:l Supreme Court impos~d liability on county gO\" 53 A':-''"},'UAL REPORT OF THE ATTORNEY GE:-\ERAL ernrnenrs for Its n~gJige:lCe in maintenance of a traffic s,gnal ligh:, painted 'STOP" Ictwrs and a stop s.ign at a highway inl,"fsection. Commercial Ca-ner ,Corp. v. Indian River County, 272 So.2d 1010 !Fla. :979) That COllYt held thn~ the ,"maintenance of a traffic SIgn at an intersection and the proper maintenance of , the painted letters 'STOP' " d',d not involve broad polky decisin"s and instead ,hould be consicie,,,d "operanona! level ecnvity" which is not shielded from tort Ii<lbility, 3-1 So.2d at 102~. Sr~ also Wallace v. Nauonwide Mut. Fin' ln~, Co., ";6 Sil:2d 3911 D,C ..\, Fb, 1$;9). holdmg-th:J.t the alleged failure of a cit ... to restore a fallen stop sign was an operanonai act.ivitv, for which it was 1i3hle: \\'elsh \. \:"tn,p"l,to.n Dade C~llnly, 30ti So,~d 518, 521 i3 DCA. Pia. 1979), holding that a negligence action against a ccunrv based 01 improper rnainrenanca " " orcountv roads is nnt. :,arre-d by ~o\"erejl;(n Immunity, and that a county has a duty to keep 'its streets in reasonably safe ('ondilion. and to \>;un 0: known dangerous conditions: COnfin.."tal Tn£ur'lI'lce Co. v. Belflower. 3.':15 So.zd 840 11 n,CA. Fla.. J9i8'i, in which tile Fi-st Distr-ict held, in a neg:lgence action against a county for improper maintenance (I( ~ "arr«W unpaved c<J:>d, t hat, there was msuffirient evidence under s. 95.361 to support the statutory presumption that the road W8S a countv road, C{ Pasco County v ..Johnson, 67 So.2d 639 (F'Ia. 1953), and Levey v. , Escambill. County, 141 se.aa i61 n DC.A Fla. 1902\, which construed all earlier version of s. 95.36I: : AS TO QUESTlO.\' 4: \ You next inquire as to whether the Board of County Ccmmrssioners of Pa'm Beach ClJunty can f'nlf'f into <In ngreeme"t wi:h an mdependent water control district to provide the above-described trllmc ccntr cl functioTlE. (In public r('ads which are currentlv be.nc mflwhi""d by ~uch a di.'\uict. Since s. 316.006, F.s, vests jur-iediction to control tr-affic only in the state rth-ough the Department 'If Tran~p'lrt:>tl<;>nl. cb.arle,ed mUn\cip:>.litles and the COUntles; s. 316.003 authorizes only "local authoriues.' defined by s. 32sa03(20) 1 to include officers and public offic-als only 0' th<! severol cocmties at,d municipa:i· ; lies, to exercise the police power to regulate traffic by means of traffic control t devices and tc alter or est abhsh speed lirmts Wll~,in th.. provision6 afeh. 3i6; and ! -,~, 316.640 vests the enforcement of the tramc laws of this state only in the state ,and its agenc.es. the counties and chartered rntmicipalities; the affected water ".,~o!1tl"I ,j~triets have no statutory authority or power to contract for traffic control functions to be performed by the county Dr 1.0 "gree tn'lt suc~ be )lJimly exercised by the districts and the county. A:lY agreement to that end, therefore, would have no legal effi~acy and would seem to be inapproprrate in ~he circunl· slances herdnb..fore delineated ill thi~ opinion. Such an agreement would not appear to be authorized under s. 163.01. F.S. Such an agteem"nt ,",'ould not seem ti'\ he within lhe conletll;>lalion or s. 125.01(I(pJ, F.S .. nor operate to serve a!1Y legai purpose cr. for the purposes of this opinion, have any legal elT..<:~iv'>rIess 01 force Iht1reunder. For tJI~ county to transfer any of its 'unctions or powers to the affected districts or to contract wuh seen districts for the performance hy the districts. the approval of the e!edor~ of both the atlected districts and the county must first be obtained in compliance with and pursuant to s. 4, Art. VIII. State Canst. C{ AGO's (17 ~·220. 07735: ,~. Sarasota County v, To'''1'1 01 Longboat Key, 355 So.2d 1197 (Fla. 1978). Therefore, and in view of the answer to your first question, I conclude Ihal th e agreement cO/lLemplated III your fourth c;uestion is both unnecessary and inappropria:e in the Instant factual and legal circum­ stances, and would ha\'e nn leg"l "me""y. A~ALRE AliO OSl.19-March 11, I STATE COLLI LICENSI:\,G OF xoi- T~. Mr. C. 1\'ayne Freeberr I(g~s and U niU('~N';>S P~epa~~d by: Joslyn W,lsor: QUESTION: May the State 80m require colleges Incc foreign country 10 be SUMMARY: LTntil judicially or I ,'ate colleges Incorpc foreign country are n' ce .. nOl\public CQU,,!,;, 'You state that the Beard f an inquiry from the Dnectr nology, united States nepal the board has any jurrsdicu Spain. 'Ihe tWO corporations as a corporation for profit ar been informed of the licensn t.tcns in florida. A question requirements set forth in s solely ir. a to-eign country. Except as restricted by t creale c~,poratio!1s and 10 P' powers conferred and the cor CO'p<Jr-cII;""S 6.26. While t lu rial lirmts, it may authoriz exercise its powers or ~alTY per-nissinn and subject to t l however, its existence i~ ,efe Corporenons s. 2;. In Flon pUrr>ns". SCI s. 607.007 F,S. F.S" extend to "all corporut. chartered by specll'Il a'ts ," regulation Gnd controt of Iyp, conflict nerewu.h." (Empha, states that each corpuration s its operations, and have "me wit/un t>~ Wilhout t'nis state: , of shareholders may be h",ld may be provided ir. the byla' notice of the meeueg. See a board of directors. regular <II state. ct:AGO 076·91 s.au» lind, the provi~ions ot that. ch not. Ch. 90-120 LAWS OF FLORIn A Cb.90·12' merit officer, and any other person deemed appropriate by the chief judge, Jh-a provide by order reasonable limits on the number of interviews that 11 \;ctLm 01 • violation of s. 794.011, s. 800.04, s. 827.03, or s. 827.04 who is under 16 years or ~ must submit to for law enforcement or discovery purposes. The order shall, to t!".1' extent possible, protect the victim from the psychological damage of repeated U'.; terrcgetions while preserving the rights of the public. the victim, and the DCraoII charged with the violation. Section 3. This act shall take effect October 1, 1990, and shall apply to offen.­ committed Oli or after the effective date. Approved by the Governor June 21. 1990. Filed in Office Secretary of State June 21, 1990. CHAPTER 90-121 House Bill No. 441 An act relating to traffic control: amending s. 316.0747, F.S.; providing that nongovernmental entities which use a traffic control device at a place to which the public is invited shall install devices which conform to specified standards; providing exemptions: providing penalties; providing an effec­ tive date. Be It Enacted by the Legislature of the State of Florida:: Section 1. Section 316.0747, Florida. Statutes. is amended to read: 316.0747 Sale or purchase of traffic control devices by nongovernmental enti­ ties; prohibitions.­ (1) lt is unlawful for any nongovernmental entity to use any traffic control de­ vice at any place where the general public is invited, unless such device conforms to the uniform system of traffic control devices adopted by the Department of Transportation pursuant to this chapter. (2) Any nonconforming traffic control device in use by a nongovernmental en­ tity prior to January 1, 1980, may be used for the remainder of its useful life, mu no longer than January 1. 1992. after which any replacement device shall conform to the uniform system of traffic control devices adopted by the Department of Transportation. (3) Noneovernmental entjtjes to which the general public is invited to travel shall install and maintain Iwiform traffic CQIlt[QJ devices at appropriate locations pmsuant to the standards set forth by the Manual on Uniform Traffic Control De­ vices as adooted by the Department of Transportatioo pursuant to 5, 316,0745 Such trnffic control devices shall be jnstalled no later than Januw 1, 1992. BUBi­ nease!\, tbe >larkjng lots of which do not pIovide intersecting lanee of traffic and businesses having fewer than 25 Darking spaces are exempt from the proyjsions of ~his subsection, The Department ofTransport8.tion shall adopt rules to implement thjs sectjon, 406 th. 90-121 Ch.90-122LAWS OF FLORID"A'---==='-" II) A person who vioLates this sectiQn commits a misdemeanor of the second ':~rr['e. punishable as provided in s, i75.082 Or s 77S,QS3 Section 2. This act shall take effect upon becoming a law. Approved by the Governor June 21, 1990. Fde<!. in Office Secretary of State June 21, 1990. CHAPTER 90-122 Committee Substitute for House Bill No. 1451 An act relating to torts; creating the Florida Tort Claims Study Commis­ sion; providing for membership; providing for the review of current state and federal Jaw regarding tort claims; providing for a written report; au, thorizing per diem and travel expenses; providing an effective date. \\"HEREAS, the state has waived sovereign immunity in certain cases, up to a .cmt of 5100,000 per person and $200,000 per incident, and WHEREAS, injured victims often rely upon a legislative claims bill to seek full compensation for their damages caused by the state, and WHEREAS, the current procedure for resolving tort claims against the state is often inefficient and unjust, and WHEREAS, the United States Government has developed a procedure for re­ solving individual claims of injured parties against the Federal Government, and WHEREAS, it is the intent of the Legislature to study the feasibility of creating a fair and equitable procedure to resolve claims by injured parties against the State of Florida, NOW, THEREFORE, Be it Enacted by the Legislature of the State of Florida: Section 1. (l) There is hereby created a Florida Tort Claims Study CQmmjs· ~JQn, which shall be CQIDDo:>ed Qf 13 members. includjng; {alOne Justice of the Supreme Court. who shall ~erye as chairman. apnointed by the Chief Justicr., Cbl Two members of the Senate appointed by the President of the Senate, (el TWQ members of the House of Representatives appojnted by the Speaker of the House of Representatives, Cd) An attorney appointed b v the Attornev General tel A representative Qf the Division of Risk Management of the Department of Insurance, apPointed b v the Insurance Commissjoner, CO A lav member appointed by the President of the Senate, Ig) A lay member appointed by the Speaker of the House of Reoresentatives, 407 STATE OF FLORIDA OFPICE OF ATTORNEY GENERAL ROBERT A. BUTTERWORTH October 17, 1991 Mr. David W. Rynders 91-82 City Attorney City of Naples 735 Eighth Street, South Naples, Florida 33940 Dear Mr. Rynders: You have asked substantially the following question: Does the presence of a guardhouse at a residential subdivision relieve the developer or owner from the requirement of installing traffic control devices pursuant to s. 316.0747(3), F.S. (1990 Supp.) ? In sum: Private residential subdivisions to which the general public is invited to travel must install and maintain traffic control devices, regardless of the presence of a guardhouse. Section 316.0747(3), F.S. (1990 Supp.), provides: Nongovernmental entities to which the general public is invited to travel shall install and maintain uniform traffic control devices at appropriate locations pursuant to the standards set forth by the Manual on Uniform Traffic Con­ trol Devices as adopted by the Department of Transportation pursuant to s. 316.0745. Such traffic control devices shall be installed no later than January 1, 1992. Businesses the parking lots of which do not provide intersecting lanes of traffic and businesses having fewer than 25 parking spaces are exempt from the provisions of this subsection. The Department of Transportation shall adopt rules to implement this section. Mr. David W. Rynders 91-82 Page Two The plain language of the statute requires nongovernmental entities, such as a residential development where the general public is invited to travel, to install and maintain traffic control devices. The Legislature has expressly provided that businesses with less than twenty-five parking spaces are exempt from the requirements of thz statute. 1 No other exemptions or exceptions may be inferred. A private residential development which allows the general public to travel on its roads would be subject to s. 316.0747(3), F. S. (1990 Supp j , Whether a guardhouse regulates access tov the subdivision to the point of denying public travel upon the streets is a mixed question of law and fact which this office cannot answer. The presence of a guardhouse at the entrance of a development to which the public is allowed to travel, however, does not fall within the exemption set forth in the statute. This office has been advised that the Department of Transportation has not adopted rules which would allow an exemption from s. 316.0747(3), F.S. (1990 Supp.), for private residential subdivisions with guardhouses. Accordingly, it is my opinion that the presence of a guardhouse does not relieve a private residential subdivision in which the public is invited to' travel upon its streets from compliance with s. 316.0747(31, F.S. (1990 Supp.). Sincerely, I - Robert A. Butterworth Attorney General RAB/tgk 1 See also, Final Staff Analysis, House Bill 441, House of Representatives Committee on Highway Safety and Construction, June 21, 1990, stating that "[d]ue to low traffic volume, those businesses with less than 25 parking spaces (i.e., doctor's Offices, locksmith shops, bicycle shops, etc.~r businesses, the parking lots of which do not provide intersecting lanes of traffic, would be exempt from this requirement." 2 See, Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952) (where a statute sets forth exceptions, no others may be inferred to be intended). Ch. 316 combustion engine IS used, the displacement rnav not exceed ~O cooc ceowoetee. (78) NQNPUBLIC-SECTOR BUS.-Any bus which IS used for the transportation ct persons for ccrnpeosatroo and which IS nol owned, leased. operated. or r-owrouact bya municipal, county, or state governmenl or a oovern­ mentally owned or managed nonprofit corporatron. (79) WORK Z:)NE P.,R::A,-The area and us aooroac'ies on 8M state-maintained highway, county­ maintained highway, or mumcrpal street where con­ struction, repair, maintenance. or other street-related or highway-reiated work is being performed or where one or more anes IS closed to tr:loftle. (80) MAXI-CUBE VEHICLE,-A specialized combine non vehicle consrstmq of a truck carrying a separable cargo-carrying unit combined will a semllrailer deSigned so urat tre separable cargo-carrying unit is to be loaded and uooaoec throuqn the semitrailer, Tt-e entire combination may not exceed 65 teet in length, and a Single componen: of that ccmooenoc may not exceed 34 leet In length HI11"'Y.-'. , cn. 71_'J,S.• " ch n-T'9 • 1.0" T'-21J" 1. cn ltl-2B6 , , cn TI_174 s I, en 80-3'6 s 23 en a2-'S6 , 1, cn~: 5 1 eh 83-'64, 10,000 STATE UNIFORM TRAFFIC CONTROL •COURT.-The coort oavinq jurisdiction oeet trat­ or towed verucre used on the public highways iioo..""e to transport j:assengels or cargo, II such lor venrcula. Iraille: "" a rnocua home pan. created uooec s. 4 -4 . I which cnstrcr sse .oraty .... Ithdrawal Ol -ctc-vehicle, -Any h'ghwav or cc­ .c IS g'ven Il,e rigl'1f .ch verlcular natuc I' 'd to y,eld f1oht-ot_ :;Jhway In Doedlence. or otherWise In cOlII-' lNay. tax;way, ramp 0' boundary 01 any a ,1 mcocioast, or a ... sed lor veh'lcular I" vier operation by the 00lF CART.-A motor vehicle designed and -;;;~lor operation on a gol/ course for spornnqIf purposes. HAZARDOUS MATERIAL.-Any substance or JiIlt)ICh has been determined by the secretary of l!!"o". States Department ot Transportation to be of Irnposmq an unreasonable risk to health, Ind properly This term includes hazardous " ..defined in s. 403.703(23).-!>._ STRAIGHT TRUCK,-Any truck on wh ch the : IS that Width statet1.: ....llft1 and the motive power unit are located on the .nulacturer of the t:,,,. ,_~ 50 as to form a single, rigid unit. ed 2 «cnes more I. .'--"" tANDEM TRAILER TRUCK.-Any combination the surface, ..,,,. ....,JCic tractor. semitrailer. and trailer coupled ridden or herded hE} ~so as to operate as a complete unit. nd other conveya~. ~ '.i/!:'h TANDEM TRAILER TRUCK HIGHWAY NET· ;,ng anI' street or "''1' \'. -A highway network consisting primarily of tour ',' :fIi eoes. including all interstate highways; high­ vnh or wrtbcur rrc: .. ' ..-.~ *"9naled ty the United States Department of designed tor carr......rj:,. ~tallon as e.ements 01 the National Netwo-k: and ng drawn by a r.-c:r ;",.. ' "-.01 Of'highway designated by the Florida Depart­ • ...Cf transconaucn for use by tandem traiier trucks, :"e desi';lned. oseo :¥ '1;:' ",~e with s. 316.515, except roads on which .oo-tauon QI proP~I:;}. .... !rAttle was specifically prohibited on January 6, :ny motor vet.ce j,-_. ;-awlng other verse.. ~" A TERMINAl.-Any location where: "'Y a load other tea-Ii WI f,l!ight either originates. terminates. or is han­ mo load so drawn ~'" ,,.. n the transportation process; or r<:ER.-Any pers.e . ,':' ' Canmercral motor carriers maintain operating :!on. or harveslInl] ~ ", ....... 'oovs to, or domlc,.('= .~ ,":.f1 tRAN$PORTATION.-The Conveyance or move­ ~ ...CI goods, materials, livestock. or persons from one CARRIER.-Any ~oto' ~ ~to another en any road. street. or highway open .ts or arranges tor:... $ ......... by the public. l ranlfarm workers~, i ~"~i VEHIClE.-Every device. in. upon, or by which vehicle orne. Iha'. f ..... ~ or property is or may be transported or 'l waoo-r, except I 'oj.: ..., upon a highway, excepting devices used exctu­ «nsert or his Imm~~ l ....., I,,()On stationary rails or tracks. j '" BRAKE HORSEPOWER -The actual U11t of , O<:1th, 0' way that 'I t: ~ de ...eloped per unit of lime et the output sf-aft 01 oath, or way IS pr",. .... aovne. as measured by a ,jynamometer. hlcular t:aHic b'r' a~ ,~. .J'l "'OPED.-Any vehicle with pedals to permit pro· ocated either W·II'.:' IfIJ/IIa: by human power, having a seal or saddle for the ','n an Independ~"':' ..III Ihe rider and deSigned tl travel on not more than ....t\eels; With a molor rated not in excess of 2 brake 'FICER._The hea: ~r and not capable 01 propelling the vehicle at "lien! agency wM,C!' • ....."greater than 30 miles per hour 01 level ground; • 1. cn 83-11le.' " cn !J-3-2913 " 1. c~ /1-1-264 , 9, cn !l5-XJ9 s 2, e' 87-138 , S. e" !l1-1~1 • 1, C1' 61·178. s '. ,n 81-210 s 3. of' El6-91., 2. c' 1308-'>3 , ~,eh. M-1JO.' 63, ~h 83-282,' 3. en g'---<I'~ 316.006 Jurisdictlon.-JL:risdiction to control traffic IS ...ested as follows: (1) 8TATE.-The Department of Transportation shall have all o-iqinat iurisdlctlOn over all state roads through· out this state, including those within the grounds of all state msuutons and the boundaries of ail dedicated state parks. and may place and maintain such traffic control devices which conform to Its marwal and specIii· cations upon all such highways as it shall deem neces­ sary to inorcate 0.1'10 to carry cot the prOVISIOns ot this chapter or 10 regulate. warn. or qurde uatnc. (2) MUNICIPALITiES­ (a) Chartered munrcrpariues shall have original juris. orcbon over all streets and hlQ:lways located withi~ their boundaries. except state roads. and may place and maintain such trathe control cevices which conform to the manuai and scecrucanor-s 01 the Department 01 Traosportaticn upon all st-eets and highways under their original jursdicfion as they shall deem necessary to mdi­ cate and to carry out the prcvisrcns of ttns chapter or to regUlate, warn. or gl..ide uatnc. (b) A municipality may exarc-sajUllsdlction over any private road or roads, or over any limited access road or roads owned or comroaeo by a spec-at district, located within rts boundaries if the muricipality and party or par­ t'BS owmnq or cootronmq such road or roads provrce. by written agreement approved ty the gov~nlng body 01 the munIcipality, for municipal traffic control jurIsdiction D'/er fhe road or roads encompassed by such agree· mel'll. PurSJanl Ihereto 1. ProviSion for reimburse'T1enl lor actuai costs of IfaHic control and enforcement and for liability insurance and Indemnification by the party or parlies. and such (Jiher terms as are mutually agreeable, may be included .....tt1 a power-drNe system that functions directly or in such an agreement '1'1 s 39,01 . ~iCally without clutching or shifting gears by the 2, The exercise 01 jurisdiction provided for herein I-lIClE.-Any S8!' ~atter Ihe drive system is engaged. /I an internal shall be in addition to )unsdictonai authority presently 389 ! i I STATe UNIFORM.TRAFFIC CONJR"O"L~ __~~ -!.' exercseo D'I rnun.cioant-es under IaN, dill: n01)llng In uus paragraph sna't be construed :0 limJ!or -crnove auy such pnsc.ctronaj authontv ,h,;socsect on shall not I mil tnoco co.mt.c s wrucn nave I~le charter powers to p-ovrce arc rl?£;uia:<3 artoner. lu:1. (l,1-: ot-ter roaos. blldc;es, tunnels, and related racuues iro-n tr.e proper exercise of 110se powers by the place­ r-em anrl maintenance 0/ uernc coruror oevces "".1Ie' con'o.m to thE! manual and cpcc.ticanoos of t-e Depart­ mer! or r-aospotetco on streets and r\<grway~ ocetec \'i,thln Municipal bcuooanes. (31 CQLlNTlES,­ ('\' Coer.res "hiill r-ave original Jurisdictlcn over ai' streets and h,gh",a)'s ccatec w,lhi.' tnerr boundar-es, exceor all state roaos and these streets ano mqnways eoec.nec In soosecton (2), and may otace and maintain sccri !ratflc conner devices wl'Hch cor-torrn to t~e manual and scec.ucettons of the Deoartmeru or Iransportat.on upon 811 streets and higllWiiYS under their origlna, lUrlS' ocuo-r as they snau dee'n necessary 10 mdlcate end to calry out (he prol,lsion5, of this coactor or to regula~e, W3'n, or ;Julje ue'tc. (~) A COVill! rray exetcee ~urrsdiclion QVm ilny pn. ville road or roads, 01 over any nmnec access road or -cecs OWnAG or controlled by a special ctsmct. located In t-ie onocorooretec area within 'IS boundaries If the county and party cr parties owrunq or con!rollmg sucn road 0' roads provide, by wntten eoreemen' approved by the gO'/ernlng tcov at the county, for cOJnty tlalf\f: contror jlmsdJc!ion over the rcad or roads encompassed ty suctl agreem"nt, Pursuant It'ere\o: 1. :lrOl'ision lor reimb\lr>;ernent for actual costs cl \rallic C:lr1to\ anc enlarcement and br I.ability insurance ::l:1d indelT'W1Jli:alOn by the party or parties, ;lnd such n:her terms as are lTulually agreeabe, may be includea in su:h an agleerne.,t. 2, Prior to entering In;o an agreem~nt w/lleh pro· vl(1es for enJorCement 01 the traffic laws of tnc state o~er a prrvate road :lr roads, or ovel any lirnitp-d access Icod or roa.ds o""neu cr c:mt"ol(ed by a special districl, the governH'1gb:>dy at the counly snail cOf1s1jlt WIth the shoo-r· IfI,No su:h agr",ement snallla~:e ~!fecl pilOT to October I, the begirmrg oi l:1e r.ounty fisca. year, unless thiS H;:cUTrem2nl IS waived In wrltinq by Ihe ~herdf, 3, The exerCJ,se 01 IlJrlsdiction prOVided for herein sh,g1I toe ,n addition 10 jU'iSOlctional a'Jthonfy !:resen!ly exerCised by {;OUr.tI8S uC)der law, and nothing In this paragraph shall be c:mstrued 10 limt cr remove acy sue'1 ILJrls11cliorai auL'ontv, Nolwithsland'ng the prOVisions 'Jf subsection (2), eacn county shall have on9,n81 jurisdiction to regJlij,le park· ing, by resolU!lor of the board of CQ,mty commissioners 8Cld the erection 01 signs con'or!"1(ng te the rranu;;1 and s:)eriflcaIJ(lns of the Cepartnent 01 T'ansporta;ion, in p1rk'nq areas locat"d on property uwned Of leasea by tre county, wrether C>f 1101 such areas a:e lOCated wi:hm [(1e boundaries 0; cl'arlere11TlunIClpilllltes. (4) LEGISlAT:vt:: DECLAFiAT,QI\.-The Leglsliltc1re h(>r€'ny finds and uel:lares thai the exercise oy an a~lhcrlt)-oj rhA powers conferred by written agreement pursuanl 10 Ihe j:rOVlsions of chapter 87-88, Laws 01 Honda, se-ves a va.c nubric purpose and I \\nlch cubic credit may be pledged and oubllc n-av be exoerceo HiS!'ry._< 1 ch 11 13o, > 1, cn 1'"~B1;, 2, ch 79_14S '. I l4i. 316.007 Provisions uniform throughout-s provrsious or 1'1IS creoter shail De applicahlG to-rn :hroug1oLi tI"s state and i"\a« pclitical sub'! " and mll!lOcipall:ic~ therein, and no lceal 8ull'oaA\ enact or eraorre ar>y crotre-ce on a mailer thiS c-ecter orress eJ:pre~,sly a.rtnonzec. Ho......." section soar not prevent any loc,gll'luthorrty frQ"rl II'Y ar oromance when such enactment IS n,,,,... veer jlJrisdlciJor; 01 VIOlation of this chapter In N court H,OlQr)',-S " ch 1:_1J!o, S 2 ch 71_'l8;< 316.008 Powers of local auihorities.-• C) The orovraoos ot ttus Chapter shalt 1,*, deemed to prf'Vefl~ local actncottes. wilh I streets and hghw8YS U10<\r t'leir jurisdicli':.>n ~ ne -eascreo'e exercse or the pnlire power, IrortI­ (d) 8egulating 0' pmh;biti'1g stcoooc. stl~,"," parking. (bl Regul;:;ting traffic by means of police one official nauc comrcr devices. (c) RegulalmQ or prohillitlrg processions fJ: oeces on lhO:'! streets or highv.rays. H'1clu:lin;l a! Ieaerat higllways Iylr.g wlthn theIr tcwoanes (d) Designalln;; particular highways or road use ty l'afl'C mo"mg in one direction. ~e) Eslanli~hrn1 spetld limits 'ar vehiCles Jr1 parks, it) DeSignating a'1Y street as a through st de,:;ignatlng any m:ersectron as a stoP or yield I tion. (D) Restrcti'1g the use 01 st'eets. ('1) Regu'a\lI'Ig the ope-ratIon ul bicyCles. (i) ReQulatmg or prohibiting the turning oJj or specilied lypes 01 vehi;::)es, 01 Altering or establishing speed limits wir,,­ provisions of Ihls Chapter, (k) ReqUiring written accident reports. (I) 'Jesign,gt''''g 'la-passing zunes, {m) Prohib,tinq cr fp.g\;lating the use ;>\ a::cess roadways by any class O' khd 01 jral~ic, '_ (11:, Pronlblting or regulating Ine ~se 01 Mawr , eled streets by any :Iass or IliCld at Iraffic found' rn::ompatiba ""Ittl the normal a1d sale movemenllll' fie. (0) Deslgnatlnq hazardoUS railroad grad~ cr m conformrty to crrteria prOr'1ulgated by th", De ot Transportation. :p) CcsLgnatilig anj regCllaling t'atlic on str"els. (q) Prohibill'1g Ofldestn3ns !rom crossing a f in a bUSlf,8SS dislficl or any designated MigMway on CI crosswalk. (I) Regulating pedestrian crossings al u crosswalks. (5) Regulatirg persons upon ::;kales, cocstn. other toy vehicles. "~')otlng e-tc ·~.l! reculauon " "<, or speca: ! ·.).:I<ng c-oma .,. ",~, tccoovo '\ or hlghw8'f 1 -, ng Y'!lthn t: ,\", ).'\dllng. tes .... ~:J~ndary ot •J mumcipant • .',;:llatIO"1S oro '·e' 318 r-O' -numcroantv "..1 ">;he r;::mexc' 't"t' artllijicatio ...~,t~(whe(\av ....! -o ::>8f"OCso .. ~~\:;er. TM d .,,',s'a1Ibein .... ,.~, ;,a,.ty. Thit , ..·"en have th • \':"rI31. ;011, ar. .. , racrnues Ire . ..'I'-llnlng to tru vi svstcm '" ,~' 'car autbont' ~. :8'11rol oevce )" any state : ~'e1\ ccta'reo . "j;1'y or mun ;1 line ;or th, .-1, c~cess 0/ t! -,-,: suCh line n • !'lily provide tl'<,' ~ou"ly or m"" -,anner; ,,~-third to be J::Jn oj thiS Sl '''J-lrilds to Jo:;:cess1bllity ar j,sabled per~ ;r--.'.-,de tunds Ie (' ~"e county 01 • .....:.>ied ~f::rsons. A county or V:::I'ldmg a ~rb)2. 0' 5. Ir , ~,'J. 2\: except I:'; !~d 111 s. 318, nceshall pr 'C \'11S sJbsec'1 ..cc6\ecled pl.;l .....11 oe used b) vI lunGing a I ~ the fines a ,e:.-eS5 0' thfl tir "',31S,·S(2)fc ~"!y basis by <1M-'11'1 01 mJnl1 .. -;ounty or ml »;:llcates a ClOJ i;.JCh Qrdlnan( 390 Laws <)1 Florida, the 79(J,25. F.S ' Section 001)53 and 790.06 i rrd, despite such s to own, possess, .e s. ammunition, ,'ns, policemen, . '[icers and their peace officers of who are carrying licensing provisions -ntorcemant officers. ~5. 1".5" as amended. s, 790.06, F.S.' er" is not defined in :1 s. 790,OOi.(8), F.S .. vs. would apply. s.r.ue attorneys are ,gO, F.S., and are carrying concealed ing within the scope \.> (last expression of pollee officers, Florida "'" Enforcement. and .'i, concealed weapons rior officers. And ~e<" police officers to carry ANNUAL REPORT OFTHE ATTORNEY GENERAL 88-5 AGO 88-5-March 7, 1988 UNIFORM TRAFFIC CONTROL LAW­ MUNICIPALITIES-TRAFFIC CONTROL­ MOBILE HOMES ENFORCEMENT OF FLORIDA UNIFORM TRAFFIC CONTROL LAWON PRIVATE MOBILE HOMEPARK ROADS BY MUNICIPAL POLlCE DEPARTMENT To: Mr. Tom Collins, Chief of Police, City of Apopka QUESTION, Whether the City of Apopka Police Department is authorized to enforce the Florida Uniform Traffic Control Law, Ch. 316, F.S., on private property? SUMMARY: L A municipal police department may enforce the Florida Uniform Traffic Control Law on private property where the public has the right to travel by motor vehicle and on private roads or other limited access roads owned or controlled by a special district when such roads are within municipal boundaries and a written agreement has been entered into by the parties pursuant to s. 316.006(2) (b), F.S. 2. A municipal police department is authorized, but notrequircd. by s. 316.64{}(4), F,S" to enforce the traffic laws within a mobile home park recreation district as described in that subsection. This office has. in a number of prior opinions, stated that the provisions of Ch. 316, F.S., are enforceable on private property only when the public has a right to travel by motor vehicle on such property. This conclusion was based on the language of s. 316.640. F.S., which provides, in part. that municipalities shall enforce state traffic laws on all municipal streets and highways "wherever the public has the right to travel by motor vehicla."! It is the availability of the area or place for travel and the right of general and common use which makes certain private property subject to public control 1 See, AGO's 86·59 and 83·B4. 13 -"'S·D AXNUAL REPORT Of THE ATTOHNEY GENERAL pnrsuant to Ch, 31-3, F.S.2 Thus, this office has determined that municipalities have enforcement authority with respect to traffic violations and accidents occurring on "private property" where the public has the right to travel by motor vehicle surh :'IS shopping centers and parkirig lots.3 However, no such law enforcement 3'Jthority has been determined to exist with regard to private roads located within a private development or over roads or streets within a ~peciaI taxing diat.rict w here such thoroughfares are not a vailable for public use.' Recognizing that "there are many private residential developments and special districts lhrOllghout the state containing roads not considered to be fully accessible to the public" and in response to Attorney General Opinions stating that local authorities are not authorized or obligated to enforce traffic Jaws in cert.'lin private neighborhoods and special disnicts.e the Legislature enacted amendments to Ch. 316, F.S" during the 1987 legislative session." These amendments appear to supply additional authority for munici. pal lnw en forcement officers t.o enforce tr affic laws on certain private property. Section 316.006, F.S., vests jurisdiction to control traffic in I he state. counties, and municipalities. Suhsecuon (2)(b), supra. which was added by s. J, Ch. 87·88. Laws of Florida, now provides that: , Se~. e.g., AGO 86·59 (municipal police department not authorized to enforce provisions of Ch ..316, F.S., within park and recreation district created by special 'act since general public not permuted to travel by motor vehicle therein): AGO 84·46 (if public has right to travel on access road owned anri mainlainl:'d by airport authority and located entirely within territorial limits of authority, then provisions of Ch. 316. F.g" are applicable to and may be enforced on such road); AGO 83·84 (if access to and common use of roads on private property not aener allv available If) public out l~gally l;mjt~d by recorded restrictive covenants to persons have express or implied permission from owner, then provisions of Ch. 316, F.S., not applicable and municipal police department does not have right or oblignt.ion or authority to e-nforceCh. il16, FS., on such p-rivate property regardless of invitation lJy private property owner to police department\: and AGO's 66·:'~ and58·l4-l (where private owner permits general and common use of street or way by public, such street ~ubjeeted to all necessary controls applicable to public streels). J See. AGO's 73-323 and 72·383. See. AGO·!!86-59 and 83·84. See. WHEREAS clauses. Ch. 87·8S. Laws of Florida. Chapters 87·88 and 87-178, Laws of Florida. 14 :\::'{NUAL REPORT OF THE ATTORNEY GENERAL ,",<·5 A municipality may exercise jurisdiction over any, private wad or roads, or over any limited access road or roads owned or contr-o.lled by a s pecial disnici, located within its boundaries 11 the municlp,dity and party or parties owning or controlling such road or roads provide, by written agreement approved by the gover ning hody of the murricipof ity, for municipal tr affic control jurisdiction over the wad or roads encompassed by suer. agreement.",' An agreement entered into pursuant to s. 31G.OIJ6(~)(b), F.S., must provide for reimbursement for the actual costs of traffic control and enforcement and for liability insurance and indemnification by the party or parties who ow, or control such road or roads. Such other terms as are mutu ally ag-eea hIe to the parties may also be incl uded in the agreement.> Section 316.640, FS. provides generally for the enforcement ')[ traffic laws and. more specifically, states that municipalities shall enforce state traffic laws on municipal thoroughfares "wherever the public has the right to travel." Section 316,640,:)1, F.S., now provides additional authority to municipal police departments to "enforce the traffic laws of this state on any private or limited access road or roads over which the municipality has jurisdiction pursuant to a written agreement entered into under s. 316,006(2Xb),"S Your letter specifically mentions traffic control by municipal police officers in "trailer parks," Section 316.640(4), F.S" was enacted to authorize but not require "the police department of each chartered -nunicipality ... to enforce the trafficlaws of this state on a:1Y way or place used fOT vehicular traffic on a controlled access basis within a -And see, s. 316.003(33), F.S., excluding the-provisions of s. 316.003(53)(b:, F.S.. from the definition of "private road or driveway." Section 3H3.003(531{bj, FB.. includes within the definition of "strlo'l'l or highway" The entire ""idth between the boundary lines oi any privately owned way or place USEd for vehicular travel by the owner and those havinJr express or implled permission from the owner. but not by other persons, or any limited access road owned or controlled by a special district, w h~ne"e-r, by written agreement entered intc onder s. il16.006(2)(bj or (3\(bl, .\ county or municipality f'xercisf'~ traffic control jurisdiction ever said way or place. , Section 3l6.006(2l(b)l., F.S. And see, s. 316,006':21(b)2., FS" which provides that "[t]h .. exeTcisf' of jurisdiction provided fOT herein shall bl< in addition to jurisdictional authority presently exercised by municipalities under law. , Section 4, Ch. 87·88. Laws of Florida. 15 A:-iNl:AL REPORT OF THE ATTORSEY CF.:;<E:RAL mobile home park recr eaticn riist rict which h as been created under s,418.30 and the recreational facilities of whirh ois t nct nrc open to the gener ai public..·· Q Based upon Ihll Ioregomg, itis my opimon that a municipal police department is autho~izl'li to enforce the Florida Uniform Tr-affic Control Law on private property where the pu::,lic has the right to travel by motor vehicle. Further, municipal Jaw enforcement officers nnw possess additional statutory authority to enforce appropriate provisions of Eh. ::n6, F.S., ever private roads or over limited access roads owned or controlled by a spl'cilll district when such roads are within municipal boundaries and a written agreement pursuant to s 316.D06(2l(b), F.S., has been entered into by the parties. In addition, a municipal police department is now specifically authorized, but not required, by s. 316.640(4l, F.B., to enforce the traffic Iaws of this state within a mobile home park recreation district as described in tl:at s cction. AGO 8B-6-lIfarch 21, 1988 peBLle E~PLOYEESRELATIONS COMMISSION­ HEALTH AND REHABILITATIVE SERVICES, DEPARTMENT OF-PUBLIC OFFICERS AND EMPLOYEES JURISDICTION OF COMMISSION TO HEAR APPEALS IN CASES INVOLVING ALLEGATIONS OF ABUSE OR ;.lEGLECT, 1'0 ORDER REINSTATEMENT OR REDUCE DISMISSAL. TO HEAR APPEALS FROM DENIALS OF EXEMPTIONS FROM DISQUALIFICATION To: Mr. 1Ificha~i Mattimore, Chairman, PUblic Employees Relations Commission QUESTIONS, 1. In view of the provisions of Ch. 87-238. Laws of Florida [C'odified Q.!! 5. llO.1127(3){a)4., F.S.], which prohibit an employee who hns been the subject of a "confirmed" report of abuse or neglect from e rnp l oy ­ ment in his or her former position, is the Public ," A''ld see. a. 316.003(5:l)(dl, F.S., incllldinR" v.-"i.thin the definitioll of "street or­ highway" "[ajlly way or place usee for vehicular tr affic on a controlled acces-s basis within a mobile r.oma park recrelition district which has been created under s. 418.30and the recreational facilities ofwhich di,tn.;;! are open to u.e goncwl public." 16 , Employees He ed of its euthr dls mls sa) to a 2. If so, wha 87·238,LawsQ Em ployees Rei the confirmed upheld p ur su r "S. 415,103 and 3. AS.\Hlming hear the appeal of a "confirmec exemption and I clear and conv justified, what { proceeding befc the Ch. rzn, F.S Laws of Plor-ids preponderance, 4. If B otsnnsr illtmtve Scrvic\ record of client does the commis employee's cont and otber benefi which he was u n SUMMARY: 1. The Public I only reinstate a mcnt pursuant t that "j u st ca use" statutory provis confirmed repo: p loyment, with j Thus, the carom order reinstaten sion in cases wh dismissal. 2. The commie cases involving e, 41a.l03, F.S., cases in which th