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Home My WebLink About2004 08 09 Public Hearings 402 COMMISSION AGENDA ITEM 402 Consent Informational Public Hearing X Regular August 9. 2004 Meeting ~ ~ f-j-'fl'( Mgr. / Att. / Dept. REQUEST: The City Attorney requests that the City Commission pass on First Reading Ordinance 2004-37 which shall amend Chapter 2, Article IV, of the City Code, creating a new section 2-96, exempting the City from the newly-enacted early voting requirements of Florida Statutes. PURPOSE: The purpose oftliis ordinance is to legislatively exempt the City from having to provide early voting to its electors so that the City may avoid the additional financial burden associated with providing early voting. APPLICABLE LAW AND PUBLIC POLICY: 1. Florida Municipal Home Rule Powers Act. 2. Chapter 2004-252, Law of Florida, amended section 101.657, Florida Statutes, to require supervisors of elections to provide early voting starting 15 days prior to a regularly scheduled election and ending the day before the election. 3. Section 100.3605, Florida Statutes, provides that no "charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities." Page 1 of 3 4. Chapter 2, Administration, Article N, Elections. 5. Informal opinion to City Attorney dated July 23,2004, authorizing municipalities to opt out of the early voting requirements. CONSIDERATIONS: 1. For municipal elections, the City Clerk is considered the Supervisor of Elections. Thus, when a municipal election is scheduled but there is no concurrent county election, under amended section 101.657, the City Clerk's office must provide for early voting. 2. The City Clerk would have to organize and provide for early voting for the City's electors starting 15 days prior to an election and ending the day before the election. Early voting must take place at a main or branch office of the Supervisor (City Clerk) and such location must have been designated as such at least one year prior to the election. Public libraries or city halls are appropriate locations for early voting. Additionally, early voting must be available at least eight hours per weekday and for eight hours total per weekend during the early voting period. 3. Providing early voting would impose additional financial and staffing burdens on the City and the office of the City Clerk. However, from a practical standpoint, this may not occur very often because municipal elections for Mayor and City Commissioners occur during Florida gubernatorial and presidential election years. 4. If it chooses to opt out, the City may contract with the Seminole County Supervisor of Elections to provide early voting for the municipal ballot. 5. If the City does not adopt the ordinance, and instead chooses to provide early voting for every election, the provisions of section 101.657 must be strictly adhered to. STAFF RECOMMENDATION: The City Attorney recommends passing on First Reading Ordinance No 2004-37 and that Ordinance No. 2004-37 be publicly advertised for Second and Final Reading. ATTACHMENT: Ordinance No. 2004-37. Page 2 of 3 COMMISSION ACTION: Page 3 of 3 ORDINANCE NO. 2004-37 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTElR SPRINGS, FLORIDA AMENDING THE CITY OF W1NTElR SPRINGS CODE OF ORDINANCES, CHAPTER 2, ADMINISTRATION; EXEMPTING THE CITY FROM THE PROVISIONS OF SECTION 101.657, FLORIDA STATUTES, REGARDING EARLY VOTING BY CREATING A NEW SECTION 2-96 ENTITLED "EARLY VOTING EXEMPTION;" PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, INCORPORATION INTO THE CODE, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article vrn, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, the Florida Legislature has adopted revisions to section 101.657, Florida Statutes, requiring supervisors of elections to provide early voting to its electors; and WHEREAS, the Florida Division of Elections, in an informal opinion to the City Attorney dated July 23, 2004, authorized that the City may opt out of the provisions of the Florida Election Code not expressly applicable to municipalities, and specifically, the early voting requirements; and WHEREAS, the City Commission finds early voting would impose a financial burden on the City and that it is in the best interests of the City to opt out of the early voting requirements; and WHEREAS, the City Commission desires to create a new section 2-96, of the City Code, entitled "Early Voting Exemption;" and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. The City of Winter Springs Code, Chapter 2, Administration, is hereby amended as follows: (underlined type indicates additions and stI.i:kcOtlt type indicates deletions, while asterisks (* * *) indicate a deletion from the Ordinance of text existing in Chapter 2. It is intended that the text in Chapter 2 denoted by the asterisks and set forth in this Ordinance shall remain unchanged from the language existing prior to adoption of this Ordinance). City of Winter Springs Ordinance No. 2004-37 Page 1 of3 CHAPTER 2. ADMINISTRATION * * * ARTICLE IV. ELECTIONS *** Sec. 2-96. Earlv Voting Exemption. The City of Winter Springs is hereby exempt from the early voting provisions of section 10 1.657. Florida Statutes. Prom time to time. the City may contract with the Seminole County Supervisor of Elections to conduct early voting for the City of Winter Springs at the office of the Supervisor of Elections and any other early voting sites the Supervisor may establish in public libraries. city halls. and/or any other facilities approved by the Supervisor. Section 2. Repeal of Prior Inconsistent Ordinances and Resolutions. All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinances and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 3. Incorporation Into Code. This ordinance shall be incorporated into the Winter Springs City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing. Section 4. Severability. IT any section, subsection, sentence, clause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of this ordinance. Section 5. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to the City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the _ day of , 2004. JOHN F. BUSH Mayor City of Winter Springs Ordinance No. 2004-37 Page 2 of 3 ATTEST: ANDREA LORENZO-LUACES City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: Anthony A. Garganese, City Attorney First Reading: Second Reading: Effective Date: City of Winter Springs Ordinance No, 2004-37 Page 3 of3 BROWN, GARGAN ESE, WEISS & D'AGRESTA, P.A. Attorn~s at Law Usher l. Brown' Jeffrey P. Buaka Suzanne D'AgrestaO Anthony A. GarganeseO John H. Ward ' Jeffrey S. Weiss Offices in Orlando, Kissimmee, Cocoa & Viera Debra S. Babb-Nutcher" Joseph E. Blitch John U. Biedenham, Jr. Lisa M. Fletcher Amy J. Goddard Katherine Latorre Melanie A. Mucario Michelle A. Reddin 'Board Certified Civil Trial Lawyer aBoard Certified City, County & Local Government Law August 3, 2004 Erin J. O'Leary J. W. Taylor Of Counsel The Honorable Mayor John F. Bush and Members of the City Commission 1126 East State Road 434 Winter Springs, Florida 32708-6912 Re: Early Voting Dear Mayor Bush and Members of the City Commission: This correspondence is to notify you of a recent amendment to the Florida Election Code affecting the voting process. Chapter 2004-252, Laws of Florida, which became effective on July 1, 2004, amended section 101.657, Florida Statutes, and now mandates that supervisors of elections provide electors the opportunity and facilities needed to cast their votes early, if desired. This amendment requires the supervisor of elections to open up its offices for early voting beginning 15 days prior to an election and ending on the day before an election. Early voting must take place in the main or branch office of the supervisor of elections. In order for a branch office to be used for early voting, it must have been designated as a polling location at least one year prior to the election. Locations such as city hall or public libraries are suitable places to provide early voting as long as the sites are geographically located so as to provide all voters an equal opportunity to cast a ballot. Additionally, early voting must be provided for at least eight hours per weekday during the applicable period and for eight hours in the aggregate for each weekend. For municipal elections, the city clerk is considered the supervisor of elections. This new early voting requirement may present a practical problem for municipalities when there is a municipal election scheduled, but no concurrent county election, because the responsibility would be on the municipality's city clerk, and not on the county supervisor of elections, to organize and provide for early voting. Because of the additional burdens placed on a municipality to provide early voting without the assistance of the county supervisor of elections, it may be a good idea for the City to opt out of the early voting requirements. I have attached for your review, an informal opinion provided to my office 225 East Robinson Street, Suite 660 . P.O. Box 2873' Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596, Kissimmee (321) 402-0144' Cocoa & Viera (866) 425-9566 Webslte: www.orlandolaw.net . Emall: firm@orlandoJaw.net Ron McLemore, City Manager August 3, 2004 Page 2 by the Division of Elections authorizing municipalities to opt out of the early voting requirements. Under Florida law, the City may opt out of early voting because the early voting statute does not expressly apply to municipalities. In sum, the City has several options from which to choose. First, the City may participate in early voting, in which case, the City is required to strictly comply with the requirements set forth in Chapter 2004-252, Laws of Florida, as described herein. Next, the City may choose to opt out of the early voting requirements through passage of an ordinance. I have attached for your review, a draft ordinance which acts to opt the City out of early voting. If the City chooses this route, it may then attempt to work with the county supervisor of elections to have the county provide early voting with the municipal candidates and issues on the ballot. Further, if it chooses to opt out, the City may determine on a case-by-case basis whether early voting would be cost feasible for any given election, and decide at that time whether or not to provide early voting opportunities for its electors. The City should be sure to consider the additional budgetary and staffing responsibilities required to support the early voting process in deciding whether or not to opt out. I look forward to discussing this issue with you further irt the future. Please contact my office should you have any questions or concerns. Very truly yours, ~(~~~) Anthony A. Garganese City Attorney AAG/lmg Enclosure cc:' Ron McLemore, City Manager -.._ ~_."'._.'i. 67/23Y2BB4 14:25 856 ') .1....J...U.~l':.I..Ag'.'\'_QI:II...'...:..Cfl'~Um~_j -') :. DEPT OF STATE .-- PAGE 62/62 ..~. ... . STATE op.~LoIuDA DEPARTMENT OF STATE JEB BUSH. Govl'n1or " , GLENDA E. HOOD Secretary of State July 23; 2004 VIA FACSIMILE Anthony A. Garganese, Esq. Brown, Garganese, Weiss & D' Agresta, P.A. 225 East Robinson Street, Suite 660 Orlando, Flodda 32802-2873 R.e: Informal Opinion: Opt-Out Provision foX'Municipal ElectiOtl5 Dear Mr. Garganese: This is in response to your request on behalf of four municipalities Cape Canaveral, Cocoa, Orchid and Winter Springs, tor an informal opinion relating to municipal elections, You ask whether a city may, pursuant to section 100.3605, Florida. Statutes, opt out of the early voting process enacted recently unde.r sections 9, 10, 11, 12 and. 13 of chapter la.w 2004-252, Laws of Florida. Since 1995, the Florida Elections Code (Chapters 97 through 106, Florida Statutes) governs <I.ll aspects of municipal elections in the absence of an applicable special act, charter or ordinance. See section 100.3605, Florida Statutes; Chapter 95-]78, Laws of Florida, see also DE 03-01. However, even where a municipality chooses to "'Opt out" of the elections code by virtue of a special act, charter, or ordinance, it will continue to be bound by those provisions of the code that expressly apply to municipalities. At this time, the statutory provision o.n ea.rly voting does not expressly apply to municipalities. Therefore, a municipality may opt out of this provision through the application of a special act o.r adoption of a charter or ordinance. If the municipality chooses to provide early voting, it must comply with the statutory requirements for early voting unde( s~ction 101.657, Florida Statutes. ~Z~ :7 Me 1. 'hews~ Assistant General COWlsel MlM/ccm. cc: Kate Laton:e, Esq. Ofnee or th~ Secrl!tll1'}' R. A. Gray Building . 500 South Bronough street . Tallahauee, Florida 32399.0250 Telephone: (850) 245-6500 . Faesimile: (850) 24~.6U5 . WWW: http://www,dos.,tllte.n.u,