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