HomeMy WebLinkAbout02-18-2005City of Winter SPrings City Codelk0
BROWN, GARGANESE, WEISS & UAGRESTA, P.A.
Attorneys at Lain
Usher L. Brown • Offices in Orlando, Kissimmee,
Jeffrey P. Buak" Debra S. Babb-Nutcher"
Suzanne D'Agresta" Cocoa & Viera Joseph E. Blitch
Anthony A. Garganese" Victoria L. Cecil
John H. Ward • Lisa M. Fletcher
Jeffrey S. Weiss Amy J. Goddard
Katherine Latorre
'Board Certified Civil Trial Lawyer
"Board Certified City, County & Local Government Law
February 18, 2005
Mr. Robert S. Hornyak
Supplement Editor
Municipal Code Corporation
P.O. Box 2235
Tallahassee, FL 32316-2235
Re: City of Winter Springs City Code
(Winter Springs General 1193)
Dear Mr. Hornyak:
Erin J. O'Leary
J. W. Taylor
Of Counsel
Please allow this correspondence to serve as a response and legal opinion
regarding certain issues addressed in your February 5, 2005 letter to Andrea Lorenzo-
Luaces, City Clerk for the City of Winter Springs. In your letter, you suggested that section
6-59 (temporary storage structures) of the City Code, which was created and enacted
pursuant to Ordinance 2001-16, was effectively repealed and reserved by the enactment
of Ordinance 2001-57. While Ordinance 2001-57 did mistakenly reserve section 6-59, it
is clear that it was not the intent of the City Commission in enacting Ordinance 2001-57 to
repeal the temporary storage structure provisions in Section 6-59. Whenever the City
Commission repeals code text, it does so by expressly restating and striking out the
relevant text. See e.g. Ordinance 2001-57. It did not do so with respect to the temporary
storage structure text.
Furthermore, implied or constructive repeals of statutes or ordinances are not
favored by the courts and are to be avoided, where possible, by any reasonable
construction. See McQuillen Mun. Corp. § 21.18 (3rd Ed.) A subsequent law will not be
found to repeal a former one unless there is a positive repugnancy between them and a
clear intent to repeal the former. U.S. v. Claflin, 97 U.S. 546, 551 (1878);New Smyrna V.
Mathewson, 152 So. 706, 707 (Fla. 1934). No such clear intent to repeal Ordinance 2001-
16 exists, nor are the provisions of the two ordinances positively repugnant to one another.
225 East Robinson Street, Suite 660 • P.O. Box 2873 Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net • Email: firm@orlandolaw.net
Mr. Robert S. Hornyak
February 18, 2005
Page 2
I am therefore of the opinion that Ordinance 2001-16, is still in full force and effect, and
was never repealed.
An oversight apparently occurred when Ordinance 2001-57 was prepared and
enacted by the City Commission without regard to the previously -enacted Ordinance 2001-
16, as 2001-16 had not yet been codified and reflected in the City's code book.
Notwithstanding this oversight, we bring to your attention to Section 5 of Ordinance 2001-
57, which specifically authorizes the Municipal Code Corporation to change or modify
section numbers to effectuate the ordinance. Given this authority, we recommend that the
former Section 6-59, regarding temporary storage structures, instead be codified at Section
6-86. Moreover, when you recodify Section 6-86, please amend the editor's note currently
accompanying Section 6-35 to read:
"Ord. No. 2001-16, § 1, adopted July 9, 2001,was originally
designated to be codified as Section 6-59. In accordance with
Section 5 of Ordinance 2001-57, the original Section 6-59 was
renumbered as Section 6-86."
Lastly, Section 6-35 should be reserved.
We appreciate your cooperation and prompt attention to this matter. Please contact
my office should you have any questions or concerns.
Very;�r yours,
i,
Anthony A. Garganese
City Attorney
cc: Andrea Lorenzo-Luaces, City Clerk
225 East Robinson Street, Suite 660 - P.O. Box 2873 - Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 - Cocoa & Viera (866) 425-9566
Website: www.orlandolaw.net - Email: firm@orlandolaw.net