• TABLE OF CONTENTS
HIDE
 Title Page
 Letter of transmittal
 Table of Contents
 Attorneys general of Florida since...
 Department of legal affairs
 Seal of the attorney general of...
 Opinions 1971
 Reports and statistics
 Index and citator






Title: Annual report of the Attorney General, State of Florida
ALL VOLUMES CITATION THUMBNAILS PAGE IMAGE
Full Citation
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Permanent Link: http://ufdc.ufl.edu/AM00000230/00001
 Material Information
Title: Annual report of the Attorney General, State of Florida
Physical Description: v. : ; 24 cm.
Language: English
Creator: Florida -- Dept. of Legal Affairs
Publisher: Attorney General
Place of Publication: Tallahassee Fla
Publication Date: 1972-
Frequency: annual
regular
 Subjects
Subject: Attorneys general's opinions -- Florida   ( lcsh )
Genre: government publication (state, provincial, terriorial, dependent)   ( marcgt )
law report or digest   ( marcgt )
 Notes
Dates or Sequential Designation: Jan. 1 through Dec. 31, 1971-
 Record Information
Bibliographic ID: AM00000230
Volume ID: VID00001
Source Institution: Florida A&M University (FAMU)
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 06692331
lccn - 87643636
 Related Items
Preceded by: Biennial report of the Attorney General, State of Florida

Table of Contents
    Title Page
        Page i
        Page ii
    Letter of transmittal
        Page iii
    Table of Contents
        Page iv
    Attorneys general of Florida since 1845
        Page v
    Department of legal affairs
        Page vi
        Page vii
    Seal of the attorney general of Florida
        Page viii
    Opinions 1971
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
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    Index and citator
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        General index
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Full Text



ANNUAL REPORT

of the


ATTORNEY GENERAL

STATE OF FLORIDA



January 1 through December 31, 1971


ROBERT L. SHEVIN
Attorney General







GOD WE T




Tallahassee, Florida
1972










Wqo
6ASS CONSTITUTIONAL DUTIES OF THE ATTORNEY GENERAL

/ 1 The revised Constitution of Florida of 1968 sets out the duties of the At-
torney General in Subsection (c), Section 4, Article IV as:
"... .the chief state legal officer."
By statute, the Attorney General is head of the department of legal affairs,
and supervises the following functions:
Serves as legal advisor of the Governor and other Executive Officers of
the State and State Agencies.
Defends the public interest.
Represents the State in legal proceedings.
Keeps a record of his official acts and opinions.
Serves as a reporter for the Supreme Court.
Assembles the Circuit Judges in biennial session to consider the betterment
of the Judicial System, including recommendations for Legislature.
Reports to the Governor, for transmission to the Legislature, on the opera-
tion of laws of the last previous Session, including decisions of the courts af-
fecting these laws.













COST DATA
This public document was promulgated at a base cost of $10.18 per
book for 1,000 copies for the purpose of providing a permanent com-
pilation and index of official Attorney General's Opinions.












STATE OF FLORIDA
DEPARTMENT OF LEGAL AFFAIRS
STnE CAPITOL
TALLAHASSEE, FLORIDA 32304
ROBERT L. SHEVIN
ATTORNEY GENERAL




December 31, 1971

LETTER OF TRANSMITTAL

Honorable Reubin O'D. Askew
Governor of Florida
The C AP IT OL

Dear Governor:


I have the honor of submitting to you
herewith the annual report of the Attorney
General for the year 1971. This report is
submitted to you by virtue of the constitu-
tional mandate directing each officer of
the executive department to make a full
report of the actions of his office to the
Governor.

This report includes opinions rendered
by me as Attorney General, an organizational
chart setting forth the structure of the
Department of Legal Affairs, and the personnel
of my office.

Statutes and constitutional sections cited
and an alphabetical subject index may be found
in the last portion of the report.


Mot respectfully,




ATTORNEY GENERAL



RLS/HTS/g










iii









TABLE OF CONTENTS


Page

Constitutional Duties of the Attorney General ............................... ii

Cost D ata ................. ............................................. ii

Letter of Transmittal ................................................... iii

Table of Contents ...................................................... iv

Attorneys General of Florida since 1845 ................................... v

Department of Legal Affairs ......................................... vi, vii

Seal of the Attorney General of Florida ................................. viii






OPINIONS


Opinions 1971 ............ ................. .......................... 1






REPORTS AND STATISTICS


Cases Handled in Attorney General's Office .............................. 563






INDEX AND CITATOR


Omitted Opinions by number and subject matter .......................... 566

General Index............................................... ..........567

Citator to Florida Statutes, Constitution and Session Laws .................. 625


iv




ATTORNEYS GENERAL OF FLORIDA

SINCE 1845


JOSEPH BRANCH ........................................ .. 1845-1846
AUGUSTUS E. MAXWELL ...................................... 1846-1848
JAMES T. ARCHER ................................. ......... 1848-1848
DAVID P. HOGUE ............................................... 1848-1853
MARIANO D. PAPY ............................................. 1853-1860
JOHN B. GALBRAITH ......................................... 1860-1868
JAMES D. WESTCOTT, JR. ..................................... 1868-1868
A. R. MEEK ................................................... 1868-1870
SHERMAN CONANT ............................................ 1870-1870
J. P. C. DREW .................................................. 1870-1872
H. BISBEE, JR. ............................................... 1872-1872
J. P. C. EMMONS ............................................... 1872-1873
WILLIAM A. COCKE .......................................... 1873-1877
GEORGE P. RANEY ........................................... 1877-1885
C. M COOPER .... ............................................. 1885-1889
WILLIAM B. LAMAR ........................................... 1889-1903
JAMES B. WHITFIELD .......................................... 1903-1904
W. H. ELLIS ..................................................... 1904-1909
PARK TRAMMELL ............... ............................. 1909-1913
THOMAS F. WEST .............................................. 1913-1917
VAN C. SWEARINGEN ........................................ 1917-1921
RIVERS BUFORD ............................................. 1921-1925
J. B. JO H N SO N ................................................. 1925-1927
FRED H. DAVIS ................................................ 1927-1931
CARY D. LANDIS ................................................ 1931-1938
GEORGE COUPER GIBBS ...................................... 1938-1941
J. TOM WATSON ........................................... 1941-1949
RICHARD W ERVIN ..... ..................................... 1949-1964
JAMES W. KYNES .............................................. 1964-1964
EARL FAIRCLOTH ............................................. 1965-1970
ROBERT L. SHEVIN ............................................. 1971-


v















DEPARTMENT OF LEGAL AFFAIRS







ATTORNEY GENERAL

ROBERT L. SHEVIN



ADMINISTRATIVADMI TE ADMINISTRATIVE
ASSISTANT --- ---- ASSISTANT
Ann Wainwright L Dick Beagley J


DEPUTY
ATTORNEY GENERAL
Barry Scott Richard











DIVISION OF DIVISION OF DIVISION OF DIVISION OF DIVISION OF
ADMINISTRATION CABINET AFFAIRS OPINIONS CRIMINAL LAW CIVIL LAW
James T. Flack L.L. Wainwright,Jr. Lou Deal Judge Reeves Bowen Dan Dearing








CABINET CONSUMER RESEARCH AND ASSIGNMENT AND CRIMINAL LAW ENFORCEMENT GENERAL ADMINISTRATIVE ANTI TRUST
PERSONNEL N.AA.G. LEGISLATIVE MATTERS AFFAIRS DRAFTING DOCKETING APPEALS EDUCATION CIVIL LAW LAW
LIAISON AFFAIRS Jim Etheridge Lynda Williams Rebecca Hawklns Esther Wilfong Ge GeorGeorgieff Raymond Marky LITIGATION Halley Lewis









LEGISLATIVE LEGISLATIVE HOT ENVIRONMENTAL PUBLIC UTILITIES TAX LAW
LIAISON RECOMMENDATIONS LINE LAW W Winifred Wentworth
Ralph Glatfelter Ken Driggs Ken Hoffman Robert Olive










DIVISION OF PUBLIC AFFAIRS DIVISION OF
CRIMINAL JUSTICE
BUDGET OFFICER CRIMINAL JUSTICE
AND NARCOTICS
L.L. Wainwright,Jr. James T. Barrett George Vilardi







--OFFICES--





CAPITOL OFFICE CENTRAL FLORIDA OFFICE WEST FLORIDA OFFICE SOUTH FLORIDA OFFICE
TALLAHASSEE WEST PALM BEACH TAMPA MIAMI
Nelson Bailey Phil Pacyna J. Robert Olian





DEPARTMENT OF LEGAL AFFAIRS
The Capitol, Tallahassee 32304 (904)222-3440

ROBERT L. SHEVIN
Attorney General

BARRY SCOTT RICHARD
Deputy Attorney General

ASSISTANT ATTORNEYS GENERAL
Wallace E. Allbritton John P. Ingle
Bjarne B. Andersen A. S. Johnston
Nelson E. Bailey Frank B. Kessler
Richard Bennett J. D. Boone Kuersteiner
Richard C. Booth Faul W. Lambert
Reeves Bowen, Chief Peter F. LaPorte
Criminal Division Halley B. Lewis
James R. Brindell Andrew W. Lindsey
Arthur C. Canaday Raymond L. Marky
William R. Cave S. Strom Maxwell
Charles Corces, Jr. Joseph C. Mellichamp III
Michael M. Corin Scott R. Nabors
H. Tucker Cotten Sam R. Neel
Louis C. Deal Dr. J. Robert Olian
Stephen F. Dean W. Robert Olive, Jr.
Daniel S. Dearing, Jerry E. Oxner
Chief Trial CounselPA. Pacyna
Joseph R. DeLucca Richard W. Prospect
Patricia C. Dunn Harold Purnell
Howell L. Ferguson William Rogers
Andrew I. Friedrich Joel D. Rosenblatt
Joel D. Rosenblatt
Arthur C. Fulmer Donald K. Rudser
George R. Georgieff Frederick Scott
Arnold R. Ginsberg James M. Wallace
Baya M. Harrison III Winifred L. Wentworth
Rebecca Bowles Hawkins Enoch J. Wtney
William W. Herring David L. Woodward
Kenneth F. Hoffman












vii




















O OF f



rObe't J. Shevmi
ne Capitol
Sallavassee




viii








ANNUAL REPORT


of the


ATTORNEY GENERAL


State of Florida


January 1 through December 31, 1971



071-1-January 14, 1971
EXECUTIVE DEPARTMENT
GOVERNOR-UNEXECUTED COMMISSIONS
To: Reubin O'D. Askew, Governor, Tallahassee
Prepared by: Arthur C. Canaday, Assistant Attorney General
QUESTION:
If an incoming governor is presented with unexecuted com-
missions prepared by the secretary of state naming certain persons
to appointive office in accordance with instructions of the previous
governor, can said succeeding governor exercise his own judgment as
to the qualifications of the persons proposed to be commissioned and
pursuant to that judgment appoint others deemed more qualified; or
is the succeeding governor required by law to execute the commis-
sions as a ministerial act regardless of his own findings in the matter?
SUMMARY:
Unexecuted commissions prepared by the secretary of state nam-
ing certain persons to appointive offices in accordance with instruc-
tions by an outgoing governor do not constitute appointments but
mere nominations, and the incoming governor may exercise his inde-
pendent judgment as to the qualifications of such appointees.
The answer to this question involves an answer to the question of when
an appointment by the executive becomes an official act and by such legal
status becomes irrevocable.
The Florida Supreme Court, to my knowledge, has not been faced with
the precise factual situation presented by the above question. It has ruled that
the secretary of state is without discretion in his duty to execute a commission
which has been duly signed by the governor under the authority of the state
of Florida and sealed with the great seal of the state. State ex rel. Fleming,
Governor v. Crawford, Secretary of State, Fla. 1891, 10 So. 118. Such a duty
under the State Const. (Art. IV, 14, 1885) was deemed a ministerial act by

1





2 ANNUAL REPORT OF THE ATTORNEY GENERAL


the secretary of state, the court held, and neither the qualifications of the
person named in the commission nor the legal status of the appointment could
be questioned. This precise issue, however, is not presented by your inquiry,
since the commissions involved here have not been executed by either the out-
going or incoming governor.
The question of when the appointment becomes an official act was de-
cided as long ago as 1803 by the United States Supreme Court in the case
of Marbury v. Madison, 1 Cranch, 137, 2 L.Ed. 60, which was later adopted
by the Florida Supreme Court in the Fleming case, supra. The Florida case,
like Marbury, dealt with a specific fact situation involving the duty of the sec-
retary of state when presented with an executed commission by the executive.
But to decide this question of the duty of the secretary of state, the court
had to thoroughly treat the concomitant question of what constituted an "ap-
pointment" and at what point it became irrevocable, that is, subject to man-
damus on the part of the appointee. The decision of John Marshall in the Mar-
bury case is loud and clear: the appointment and the commission are insepar-
able; without the latter, you cannot have the former. As was later explained
by the Florida court in the Fleming case (adopting Marbury):
Under the constitution and laws of the United States, and of this
state, there is no known mode of evidencing or proving that an ap-
pointment of a United States senator, or any other officer, has been
made by the executive of this state, except, or unless and until, a
commission has been duly signed, sealed, and countersigned in ac-
cordance with the above-quoted provision of our organic law. Section
14, [A]rt. 4, Const ....
The section of the State Constitution referred to appears in all of the ear-
lier constitutions without material change and survived essentially intact to 1968,
when the section became law (113.051, F. S.) in accordance with the dictates
of Art. XII, 10 of the 1968 revision. The provision states as follows:
113.051 Grants and commissions.-All grants and commissions
shall be in the name and under the authority of the State of Florida,
sealed with the great seal of the state, signed by the governor, and
countersigned by the secretary of state.
The Florida Supreme Court in the Fleming case also adopted a holding
in the case of State ex rel. Cornwell v. Allen, 21 Ind. 516, and stated that:
Where the title to an office is derived solely by executive ap-
pointment the commission of the executive is the only legal evidence
of such title. See, also, People ex rel. Mason Melony v. Whitman,
10 Cal. 38.
These pronouncements have been recently followed by the Florida Su-
preme Court in the case of Treasure, Inc. v. State Beverage Department, Fla.
1970, 238 So.2d 580, decided June 17, 1970, where both the Fleming case and
its references to Marbury v. Madison were quoted at some length. The opinion
by Mr. Justice Drew emphasized the importance of the "mere formality" with
which we are here concerned, and which on first glance might be labeled
by some as just a legal technicality. The opinion stated at page 538:
The formalities attendant upon assumption of a public office
such as Beverage Director are not mere "technical niceties." They
have a purpose. Appointment of officials to exercise the state's sov-
ereign powers is not lightly regarded, as witnessed by the require-
ment that many of the Governor's appointees must be confirmed by
the state Senate .The exercise of sovereign power is constitu-
tionally restricted to those who meet the constitutional requirements-




ANNUAL REPORT OF THE ATTORNEY GENERAL 3


and only to those. The taking of the oath and the issuing of the
formal commission not only constitute the official conveyance to the
recipient of a portion of the state's sovereign power, but serve to
impress upon the appointee or elected official the great public trust
and confidence which is placed in him by his appointment.
It is my opinion that the unexecuted commissions presented to you, lack-
ing the vital formalities discussed by Mr. Justice Drew, do not constitute of-
ficial appointments of the previous executive but mere nominations; that the
responsibility for the appointment squarely rests upon your shoulders as the
executive who will commission the officer, and endow him with official status
and authority to carry out his duties. As such, you are the appointing officer
and not only may, but have a duty to, exercise your independent judgment
as to the appointee's qualifications.


071-2-January 21, 1971
TAXATION
INTANGIBLE TAX LIABILITY-NONRESIDENT OWNER
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: John N. Hogenmuller, Assistant Attorney General
QUESTIONS:
1. Does the Department of Revenue have the authority to re-
quire the payment of tax on intangible personal property located in
the state when the beneficial ownership is held by a non-Florida
resident?
2. Does the Department of Revenue have the authority to re-
quire persons or corporations that have custody and control of intan-
gible personal property as set out in 199.101, F. S. (1970 Supp.),
to file a return in the county where they are located, giving the char-
acter, description, location and just value of the intangible property
if the beneficial owner is not a Florida resident?
SUMMARY:
The Department of Revenue has the authority to require pay-
ment of tax on intangible personal property located in the state when
the beneficial ownership is held by a non-Florida resident, and those
having custody or control of such intangibles must file returns
thereon.
Your first question is answered affirmatively. Section 192.011, F. S. (1969),
provides the basis for taxation of all personal property unless specifically ex-
empted:
Unless expressly exempted from taxation, all real and personal
property in this state, and all personal property belonging to persons
residing in this state, shall be subject to taxation in the manner pro-
vided by law. (Emphasis supplied.)
"Intangible personal property" is defined by 199.011, F. S. (1969):
"Intangible personal property" is hereby defined as all personal
property which is not in itself intrinsically valuable but which derives
its chief value from that which it represents. "Taxpayer" shall mean
a person, firm or corporation liable for taxes under this chapter for
intangible personal property. (Emphasis supplied.)





4 ANNUAL REPORT OF THE ATTORNEY GENERAL


The 1970 Legislature amended 199.101, F. S., to read as follows:
It is hereby made the duty of every person, firm, or corporation
in this state owning or having control, management, or custody of
intangible personal property which is subject to taxation under the
laws of Florida, including trustees, executors, administrators, receivers,
and all other fiduciaries, to file a sworn return of the same with the
county assessor of taxes in the county where the beneficial owner re-
sides, on or before May 1 of each and every year, giving the char-
acter, description, location, and just valuation of same according to
the best knowledge and belief of the person making the return. Intan-
gible personal property of a taxable class owned by, or under the
control, management, or custody of, every person who becomes a le-
gal resident of this state prior to January 1 of any year shall be sub-
ject to taxation, and such person shall file a return and be liable for
intangible personal property taxes.... (Emphasis supplied.)
The necessity of filing returns in the county where the "beneficial owner" re-
sides as added by Ch. 70-59, Laws of Florida, gives rise to your question.
It is my opinion that the newly specified situs for filing of returns con-
tained in 199.101, F. S., does not remove the tax liability of beneficial owners
residing outside of the state when the corpus of their trust is located in Florida.
The change in 199.101, F. S., was made to clarify the situation where the
beneficial owner resides in one Florida county and the trust property in an-
other Florida county. This is not an "express exemption" as contemplated by
192.011, F. S., but merely an amplification of 199.101, F. S.
If the trust corpus is located in Florida, the property must be returned
as intangible personal property subject to taxation. See Florida National Bank
of Jacksonville v. Simpson, Fla. 1952, So.2d 751. Thus, if the beneficial owner
resides outside of Florida, the return should be made in the county where the
trust corpus is located. If on the other hand the beneficial owner resides in
Florida, the return should be filed in his home county.
Your second question is answered in the affirmative if the "custody and
control" of intangible personal property which you refer to is that of a true
fiduciary and not mere possession or bailment.
As shown in the answer to your first question, trust property held in Flor-
ida for a nonresident is subject to intangible property tax. Section 199.101, F.
S., makes it "the duty of every person, firm, or corporation in this state own-
ing or having control, management, or custody of intangible personal property
which is subject to taxation under the laws of Florida, including trustees, ex-
ecutors, administrators, receivers, and all other fiduciaries," to file sworn re-
turns of intangible personal property held by them. The filing of such returns
removes the duty of the beneficial owner to return the property for taxation.
Section 199.022(2), F. S.
Attorney General Opinion 046-509, Dec. 14, 1946, Biennial Report of the
Attorney General, 1945-1946, p. 332, rendered on Dec. 14, 1946, considered
199.101, F. S., as set out above, in its then existing form. After considering
all relevant sections, the opinion concluded:
When we apply the above mentioned rule of construction, as
well as the doctrine of ejusdem generis, to said section 199.07, I am
of the opinion that the legislature did not intend to require every
person having possession of intangible personal property to return the
same for taxation but intended that such requirement relate only to
persons having a fiduciary relation or that of an agent in control or
management of the property. The relationship should be something
more than that of a mere possession or bailment.




ANNUAL REPORT OF THE ATTORNEY GENERAL 5



The rule of construction employed consists of considering general and spe-
cific words in a statute which are associated together and limiting the general
words to a sense analogous to the less general. Thus, the people "owning or
having the control, management or custody" of intangible personal property
are limited to the class of "trustees, executors, administrators, receivers and
other fiduciaries." If the fiduciary is holding the property for a non-Florida
resident, then he is responsible for returning the property in the county where
the trust corpus is located.
Please be advised that this opinion is limited to the question of intangible
personal property taxes on trust property and does not dispose of situss" ques-
tions as they relate to any other type of intangibles.


071-3-January 25, 1971
LAW ENFORCEMENT OFFICERS
AUTHORITY OF SMALL CLAIMS COURT JUDGE TO CARRY
CONCEALED WEAPONS WITHOUT PERMIT
To: Stanton S. Kaplan, Judge, Small Claims Court, Pompano Beach
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
May a judge of a small claims court carry a concealed weapon
without obtaining a license from the board of county commissioners?
SUMMARY:
Small claims court judge is a judicial officer and conservator of
the peace and may carry a weapon, concealed or not, without a li-
cense from the county commission, when acting within the scope of
his authority.
Article V, 25, State Const., provides that:
SECTION 25. Judicial Officers as conservators of the peace. All
judicial officers in this state shall be conservators of the peace.
(Emphasis supplied.)
Being a judicial officer, a judge of a small claims court is a conservator
of the peace. In AGO 070-167, it was concluded that a circuit judge, being
a judicial officer and therefore a conservator of the peace, is a "law enforce-
ment officer" within the contemplation of 790.001(8)(a) and (e), F. S. Upon
the basis of the authorities cited in said opinion, I conclude that a judge of
a small claims court, being a judicial officer and hence a conservator of the
peace, is likewise a "law enforcement officer" within the purview of 790.001
(8)(a) and (e), F. S. Section 790.051, F. S., provides that:
790.051 Exemption from licensing requirements; law enforcement
officers.-Law enforcement officers are exempt from the licensing
and penal provisions of this chapter when acting at any time within
the scope or course of their official duties or when acting at any
time in the line of or performance of duty. (Emphasis supplied.)
The "licensing" provision from which said statute exempts law enforcement of-
ficers when acting within the scope of their official duties is found in 790.05,
F. S., which makes it unlawful for a person to carry around with him or have
in his manual possession in any county a pistol, Winchester rifle or repeating
rifle without having a license from the county commissioners of that county.
The pertinent "penal" provisions referred to in 790.051, F. S., are the penal





6 ANNUAL REPORT OF THE ATTORNEY GENERAL


provisions of said 790.05, F. S., and the 'penal provisions of 790.01, F. S.,
relating to carrying concealed weapons and concealed firearms.
The result is that judges of small claims courts may carry any kind of
weapon, whether concealed or not, without obtaining a license from the county
commissioners "when acting at any time within the scope or course of their
official duties or when acting at any time in the line of or performance of
duty."

071-4-January 25, 1971
COUNTY OFFICIALS
SALARY INCREASE-EFFECTIVE DATE OF SALARY INCREASE DUE
TO 1970 CENSUS-145.15, F. S.
To: George L. Carlisle, Clerk, Circuit Court, Green Cove Springs
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
When a county fee officer is entitled to a salary increase under
Ch. 145, F. S., because of his county moving into a higher population
bracket, is the salary increase effective as of Jan. 1, 1971?
SUMMARY:
Salary payable to a county fee officer for the 1971 calendar year
on account of a change in the population bracket of the county will
not be fixed and determined until after the 1971 Legislative Session
has ended.
Your letter refers to the opinion of my predecessor in office, AGO 069-
136, holding that the salary increase for county officials provided by Ch. 69-
346, Laws of Florida (Ch. 145, F. S.), was effective as to fee officers retro-
spectively to the beginning of the calendar year, Jan. 1, 1969. However, that
opinion was rendered on Dec. 23, 1969 with respect to salaries that were fixed
by the 1969 Legislature and were due and payable to the county officials in
question in accordance with the implementation schedule provided for therein.
Here, the salary increase is not irrevocably due and payable. It is bot-
tomed on an increase in the population of the county in which the official
serves. More importantly, the effective date of a salary increase that is based
on a change in population is expressly limited by the statute itself to July 1,
1971 (see 145.15, F. S.), and by 8(b) of Art. X of the 1968 State Const.,
to "the thirtieth day after the final adjournment of the regular session of the
legislature convened next after certification of the census," which could be a
few days after the 1st day of July, 1971.
In these circumstances, your question is premature. The salary payable to
a fee officer for the 1971 calendar year due to a change in the population
bracket of his county will not be fixed and certain until the end of the 1971
Session of the Legislature. In view of the shortage of funds for operating the
government at all levels, it is not inconceivable that the 1971 Legislature could
completely revise the salary schedule adopted at its 1969 session for county
officers. Moreover, the 1971 Legislature may see fit to clarify its intention more
specifically with respect to the effective date of salary increases for fee officers
due to a population increase in the county. Therefore, county fee officers
should continue to draw the salary payable under the 1960 census for their
particular counties until after the end of the 1971 Legislative Session. If no clari-
fying legislation concerning the question presented by you is adopted, you may
wish to request the opinion of this office on the question at that time.




ANNUAL REPORT OF THE ATTORNEY GENERAL 7



071-5-January 25, 1971
REGULATION OF COMMERCE
RETAIL INSTALLMENT SALES ACT-APPLICABILITY TO
CORPORATIONS PROVIDING INSTALLMENT FINANCING FOR
PAYMENT OF MEDICAL BILLS
To: Fred O. Dickinson, Jr., State Comptroller, Tallahassee
Prepared by: Michael Schwartz, Assistant Attorney General
QUESTIONS:
1. May a corporation that provides installment financing for the
payment of bills for services rendered in hospitals in the state be sub-
ject to the licensing provisions of the Retail Installment Sales Act,
thereby allowing such corporation to assess finance charges as pro-
vided under Ch. 520, F. S.?
2. In the event the first question is answered in the negative,
would the financing of such services violate the general usury statute
if the finance charges produce a yield of over 10 percent per annum?
SUMMARY:
Corporation providing installment financing for hospital bills is
not subject to licensing under the Retail Installment Sales Act, and
the financing of such charges violates the usury act if the finance
charges exceed 10 percent per year.
From the material submitted with your request, corporations of this type
appear to act as lending institutions providing installment financing for medical
expenses incurred at several hospitals in this state.
Part II of the Retail Installment Sales Act, Ch. 520, F. S., deals with "retail
sellers." Section 520.31 thereof provides the definition of a retail seller:
(5) "Retail seller" or "seller" means a person regularly engaged
in, and whose business consists to a substantial extent of, selling
goods to a retail buyer.
A corporation that provides financing for medical services rendered is not a
"retail seller" but a lending institution.
Part III of the Retail Installment Sales Act, Ch. 520, F. S., deals with sales
finance companies. Section 520.51(1) thereof provides the definition of a sales
finance company:
(1) "Sales finance company" means a person engaged in the busi-
ness of purchasing retail installment contracts from one or more retail
sellers. The term includes but is not limited to a bank, trust company,
or industrial bank, if so engaged. The term does not include the
pledgee of an aggregate number of such contracts to secure a bona
fide loan thereon. (Emphasis supplied.)
A sales finance company under Part III is prohibited from buying any instru-
ment except a retail installment contract (520.51, F. S.).
Part II of the act governs installment transactions by retail sellers. When
these installment transactions are purchased from retail sellers the transactions
are governed by Part III. Thus Part II must be examined and read together
with Part III to determine whether the several hospitals concerned are retail
sellers engaged in retail installment sales.
It has been held that professional medical people such as doctors and den-
tists are not governed by Part II of the act because these professional people
furnished primarily services and are not sellers of goods as such (AGO





8 ANNUAL REPORT OF THE ATTORNEY GENERAL


067-1). This opinion also states that "before a person would be required to
be licensed under 520.32, F. S. [Part II],. it must be shown that such person
is regularly engaged in, and that a person's business consists to a substantial
extent of, selling goods."
Hospitals, like professional individuals in the medical field, have been tra-
ditionally held to furnish services and not sell goods. See Perlmutter v. Beth
David Hospital, 308 N.Y.100, 123 N.E.2d 792 (1954), the leading case in this
area. See also Community Blood Bank v. Russell, Fla. 2 D.C.A. 1966, 185 So.2d
749 and Fla. 1967, 196 So.2d 115. A hospital cannot be a retail seller under
Part II. It therefore follows that a hospital's transactions for services rendered
cannot be governed by Part III.
Therefore, I conclude that a corporation that provides financing for ser-
vices rendered by hospitals is not governed by the provisions of Ch. 520, F.
S., and these lending institutions are governed by Ch. 687, F. S., if, in fact,
they charge more than 10 percent interest.


071-7-January 26, 1971
DEPARTMENT OF GENERAL SERVICES
APPOINTMENT OF ARCHITECTS-BUILDING CONSTRUCTION
PROJECTS FOR BOARD OF REGENTS
To: Chester F. Blakemore, Executive Director, Department of General Services,
Tallahassee
Prepared by: Arthur C. Canaday, Assistant Attorney General
QUESTION:
Is the appointment of all architects and the functions of construc-
tion for Board of Regents projects the responsibility of the Depart-
ment of General Services?
SUMMARY:
Legislative intent is that appointment of all architects and the
functions of construction for Board of Regents projects are the re-
sponsibility of the Department of General Services.
I have your letter of Jan. 22, 1971, concerning the policy decision to allow
the Board of Regents, instead of the Department of General Services, to ap-
point architects or engineers relating to building construction projects for the
Board of Regents. You advise, in answer to my inquiry, that the policy results
from an Aug. 20, 1969, letter from my predecessor construing Ch. 69-106, Laws
of Florida. You state further that it has resulted in considerable administrative
confusion and duplication of effort and, in addition, appears to run counter
to legislative intent as expressed by members of the legislature and a vote
taken by both Houses on Senate Bill 494 during the 1970 Session. I am in
agreement that, in view of events subsequent to my predecessor's 1969 opinion,
a review of that opinion may be in order.
Having served in the 1970 Legislature, I was able to observe firsthand the
reaction of a great majority of both senators and representatives to my pre-
decessor's opinion construing legislative intent concerning the above policy. That
reaction was confirmed by a lopsided vote in both branches to make abun-
dantly clear that authority for appointment of all architects or engineers for
Board of Regents projects should rest with the Department of General Services.
Senate Bill 494, the vehicle for such clarification, passed the House by a vote
of 99 to 2, and the Senate by a vote of 30 to 1. It was vetoed by the
governor.




ANNUAL REPORT OF THE ATTORNEY GENERAL 9


It has therefore become apparent since 1969 that the intent of 22(5)(g),
Ch. 69-106, Laws of Florida [20.22, F. S.], was to cover all functions relating
to construction:
All powers, duties and functions of the board of regents and the
institutions under the board of regents relating to building construc-
tion, additions to buildings and to substantial modifications and alter-
ations of buildings as prescribed in chapters 239, 240 and 241, Florida
Statutes, shall be assigned to the division of building construction
and maintenance. (Emphasis supplied.)
It is my opinion the broad phrase "all functions relating to building con-
struction" would include the choosing of those who will design such construc-
tion. This interpretation would comport also with the general purpose of the
Governmental Reorganization Act to centralize in the Department of General
Services those administrative duties connected with the construction, leasing, or
maintenance of state buildings. It should be noted that the Department of Gen-
eral Services now appoints the architects or engineers who design the projects
of all other state agencies. The Florida Supreme Court has followed a canon
of statutory construction which holds that if any ambiguity arises as to the
meaning of a statute, the general purpose for which it was enacted is of pri-
mary importance in the interpretation of it. See 30 Fla. Jur., Statutes, 99; Weiss
v. Leonardy, Fla. 1948, 36 So.2d 184, 187. The admonition of Justice Terrell
in the Weiss opinion is particularly helpful here, I believe. The chief justice,
in following the above axiom, stated that he realized one could easily ration-
alize a different conclusion, but it would amount to nothing more than a
treatise on semantics and a result foreign to the legislative intent.
It is my conclusion that, in view of the events subsequent to 1969, it has
become abundantly clear that the intent of the legislature in enacting 22(5)
(g) of Ch. 69-106, Laws of Florida, was to make the appointment of architects
or engineers for Board of Regents construction projects a responsibility of the
Department of General Services.


071-9-January 29, 1971
TAXATION
DOCUMENTARY STAMP TAX LIABILITY-"XTRACASH
ACCOUNT AGREEMENT"
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: John N. Hogenmuller, Assistant Attorney General
QUESTION:
Is there a documentary stamp tax liability of loans made under
"Xtracash Account Agreements"?
SUMMARY:
"Xtracash Account Agreements" whereby a bank agrees to lend
money to a customer, if necessary, by crediting his checking account
are not subject to documentary stamp tax liability under 201.08, F.
S., because they are not certain at the time of the original agreement
but rather depend upon a contingency.
According to the facts presented, pursuant to the terms of this type agree-
ment, at any time a customer's account is insufficient to cover a specific charge
made thereto, the bank will loan to that customer by crediting his checking
account in multiples of $100 up to his line of credit. The loan will subsequently
be repaid as specified in the agreement.





10 ANNUAL REPORT OF THE ATTORNEY GENERAL


Although AGO 059-89 specifically held such agreements subject to docu-
mentary stamp taxes when a loan was made, subsequent opinions of this office
and the courts make that conclusion no longer tenable.
Relying on Lee v. Kenan, 78 F.2d 425 (5th Cir.); Banker's Trust Co. v.
Florida East Coast Ry., 8 F.Supp. 874 (D. Fla.), and Metropolis Publishing Co.
v. Lee, 1 Fla. 1936 1, 170 So. 442, AGO 063-38 held that "Premium Account
Agreements" were not subject to documentary stamp tax liability. The Premium
Account Agreements were arrangements in which a finance company agreed
to loan and advance from time to time to policyholders and to insurance
agents to be advanced to policyholders, funds to be used in the payment of
insurance premiums due or to become due from such policyholders to the in-
surers. The amount of the advances to be made from time to time was depen-
dent upon the needs of the policyholders and the amount of premiums due
from him from time to time. As in the Xtracash Account Agreement, no obliga-
tion arose on the part of the policyholder, unless and until he obtained an
advance of funds from the finance company. It was possible for finance agree-
ments to be entered into between the finance company and a person who
would never require nor obtain an advance of funds from the finance
company, in which case no obligation would arise between the person and
the company.
My conclusion that Xtracash Account Agreements are not subject to the
documentary stamps is further supported by Maas Brothers, Inc. v. Dickinson,
Fla. 1967, 195 So.2d 193. There the Supreme Court of Florida adopted the
views expressed in Judge Rawls' dissent in Maas Brothers, Inc. v. Green, (Fla.
1 D.C.A. 1966), 182 So.2d 633, 642, that ". Section 201.08 does not con-
template the taxation of instruments when the actual debt or liability there-
under is dependent upon a contingency." In the instant fact situation, the anal-
ogy between a flexible charge account agreement and the Xtracash Account
Agreement is clear. The agreement does not create a debt or obligation until
the happening of a contingency. The charges on a checking account, which
effect the automatic loan are like the sales slips in a retail flexible checking
account, and do not in themselves contain any promise to pay the debt created
by the agreement. They ". amount simply to secondary evidence of the
monies [sic] due under the basic agreement should the balance owing be dis-
puted." 195 So.2d 193, at 197. Since the contingency for the loan is not evi-
denced by a specific promise to pay the Xtracash loan, the agreement should
not be subject to documentary stamps.


071-10-January 29, 1971
TAXATION
OCCUPATIONAL LICENSE TAX-MOVIE THEATERS-205.412, F. S.
To: 1. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: John N. Hogenmuller, Assistant Attorney General
QUESTION:
How many occupational licenses are required by 205.412, F. S.,
when a theater building is owned and managed by a single operator
and which although having a common lobby and box office is e-
quipped to show a number of movies simultaneously? For example,
the theater presents six different movies at the same time under one
basic structure with a common roof.
SUMMARY:
The operator of a theater building wherein more than one mov-





ANNUAL REPORT OF THE ATTORNEY GENERAL 11



ing picture is shown at the same time is only liable for one occupa-
tional license pursuant to 205.412, F. S.
Section 205.412(1), F. S., provides in pertinent part:
moving picture shows giving exhibitions in buildings per-
manently used for such purposes, or drive-in theaters, shall be al-
lowed to give as many performances or exhibitions in such buildings,
theaters or areas as they wish on payment of the following license
tax .... (Emphasis supplied.)
It is my opinion that the statute clearly states that owners may give, "as
many performances or exhibitions" in a building as they wish when they pay
an occupational license tax according to the scale provided for in 205.412,
F. S. Thus, according to the facts as presented, only one occupational license
pursuant to 205.412, F. S., is required.

071-11-January 29, 1971
TAXATION
OCCUPATIONAL LICENSE TAX-APPLICATION TO NATIONAL BANKS
To: 1. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: John N. Hogenmuller, Assistant Attorney General
QUESTIONS:
1. Are national banks doing business in the state of Florida
subject to the occupational license tax provided for under either
205.401, F. S., or 205.521, F. S., for the privilege of engaging in
those activities usually associated with normal commercial banking
operations?
2. If a bank that owns or leases computers offers to the public
a data processing service much the same as a data processing service
company offers, or offers to the public a travel service much the
same as an authorized travel agency, is the bank required to obtain
a separate license for each or either of the activities under the provi-
sions of 205.471, F. S.?
SUMMARY:
National banks doing business in the state of Florida are subject
to occupational license tax in the same manner as other banks after
Jan. 1, 1972. Separate or unrelated activities of national banks are
subject to additional occupational license taxes.
Your first question is answered in the affirmative for banks having their princi-
pal offices in Florida, effective January 1, 1972.
Public Law No. 91-156 [Dec. 24, 1969] removed the immunity of national
banks from state taxation except as to taxes on intangible personal property.
Effective Jan. 1, 1972, 12 U.S.C. 548 will read:
For the purpose of any tax law enacted under the authority of the
United States or any State, a national bank shall be treated as a bank
organized and existing under the laws of the State or other jurisdic-
tion within which its principal office is located. Pub. L. No. 91-156
2 (Dec. 24, 1969).
In the interim the law provides:
A State or political subdivision thereof may impose any tax





12 ANNUAL REPORT OF THE ATTORNEY GENERAL



which is imposed generally on a non-discriminatory basis throughout
the jurisdiction of such State or political subdivision (other than a tax
on intangible personal property) on a national bank having its prin-
cipal office within such State in the same manner and to the same
extent as such tax is imposed on a bank organized and existing under
the laws of such State. Pub. L. No. 91-156 1 (Dec. 24, 1969).
It should be noted, however, that the state or its political subdivision may
tax a national bank not having its principal office within the jurisdiction of
said state only for sales and use taxes upon purchases, sales, and use within
such jurisdiction, taxes on real property or occupancy of real property located
within said jurisdiction, taxes (including documentary stamp taxes) on execu-
tion, delivery or recordation of documents within said jurisdiction, taxes on tan-
gible personal property-excluding cash or currency-within its jurisdiction, and
license, registration, transfer, excise, or other fees or taxes imposed on the
ownership, use, or transfer of tangible personal property located within such
jurisdiction, and only if such taxes are imposed on a nondiscriminatory basis.
Public Law No. 91-156 1(5)(b)(1-5) (Dec. 24, 1969). This is not a consideration
in Florida where any office would be a "principal" office.
While states and their political subdivisions are now generally permitted
to tax national banks, Florida falls within application of the savings provision
of the new tax law. Section 3(a) of Public Law No. 91-156 provides:
prior to January 1, 1972, no tax may be imposed on any class
of banks by or under authority of any State Legislation in effect prior
to the enactment of this Act unless (1) the tax was imposed on that
class of banks prior to the enactment of this Act, or (2) the imposi-
tion of the tax is authorized by affirmative action of the State Legis-
lature after the enactment of this Act.
Florida is prevented from imposing the license tax on the national banks
at present, since state banks have been granted the same tax exemptions that
national banks have enjoyed in the past. Section 192.54, F. S. 1967. Instead
of passing a law enabling the state to utilize Public Law No. 91-156, the
Florida Legislature reenacted its state bank exemptions in 196.27, F. S., 1969.
The absence of affirmative "enabling" action by the legislature precludes any
state utilization of the federal permission to tax, except in certain specified
categories. The savings provision does not apply to:
(1) Any sales tax or use tax complementary thereto,
(2) Any tax (including a documentary stamp tax) on the execu-
tion, delivery, or recordation of documents; or
(3) Any tax on tangible personal property (not including cash
or currency), or for any license, registration, transfer, excise or other
fee or tax imposed on the ownership, use, or transfer of tangible per-
sonal property. Pub. L. No. 91-156 3(b) (Dec. 24, 1969).
Occupational license taxes are not specifically mentioned above and are
therefore excluded. However, even without affirmative action of the legisla-
ture, effective Jan. 1, 1972, occupational license taxes will be applicable to na-
tional banks. This is clearly revealed by the congressional intent expressed in
the report of the Senate Banking and Currency Committee (S. Rep. No. 91-
530, Nov. 12, 1969). The committee expressly rejected traditional theories [ex-
emplified in Bank of America v. Lima, 103 F. Supp. 916 (D. Mass. 1952)]
that the national banks were a distinct arm of the federal government entitled
to special protection from state taxation. The report stated:
Without specifically addressing the question of whether national
banks remain, in substance, such a Federal instrumentality, the com-
mittee is agreed that there is no longer any justification for Congress





ANNUAL REPORT OF THE ATTORNEY GENERAL 13


continuing to grant national banks immunities from state taxation
which are not afforded state banks. 13 U.S. Code Cong. & Ad. News
2851 (Jan. 20, 1970).
Such intent clearly shows that when the savings provision is no longer ap-
plicable, Florida and its political subdivisions may utilize 205.401, F. S., to
impose occupational license taxes on the banks. Section 205.401, F. S., provides,
in part:
.Every person engaged in the operation of any business of
such nature that no license can be properly required for it under any
other provision of this chapter or other law of the state, shall pay
a license tax of $150.00 ....
The absence of a statute currently applying license taxes to banks, leaves
banks taxable under this "miscellaneous business" statute. (The legislature failed
to reenact 205.27, F. S., in 1967, which authorized a license tax on banks
and trust companies of fifty cents for each thousand dollars of capital.)
Your second question is also answered in the affirmative after Jan. 1, 1972.
It is acknowledged that activities directly related to or incidental to the
operation of a business are not taxable separately. State ex rel. Dawes v.
Nelson, Fla. 1945, 20 So.2d 394; accord, First National Bank of Santa Fe
v. Commissioner of Revenue, N.M. 1969, 460 P.2d 64. At first glance it
would seem that no activities of the national banks would be outside the scope
of being related and incidental to banking functions. As authorized in 12
U.S.C.A. 24, a national bank
shall have power to exercise by its board of directors or
duly authorized officers or agents all such incidental powers as
shall be necessary to carry on the business of banking. (Emphasis
supplied.)
The implication that a national bank only engages in activities related to
banking is further supported by 12 U.S.C.A. 1864 which states: "No bank
service corporation may engage in any activity other than the performance of
bank services for banks."
The question of whether the operation of data processing equipment for
the public by a bank is incidental to the bank's function and not subject to
separate taxation was considered in the case of First National Bank of Santa
Fe v. Commissioner of Revenue, N.M. 1969, 460 P.2d 64. In the Santa Fe case
the court said:
The fact that the enumerated powers of a national bank do not
include the performance of such services for other banks, the fact
that Bank Service Corporations are expressly empowered to perform
such services for banks, and the fact that Congress has not limited
the taxation by a state of Bank Service Corporations, indicates to us
that Congress does not intend that the performance of these services
may not be taxed by a state. It seems illogical to us to hold that
Congress intended to limit a state's taxation on functions or services
performed by national banks, when such functions or services are
clearly not necessary, and not reasonably incident, to the execution
of the powers conferred by Congress thereon.
The court went on to find the data processing machine operation subject
to taxation.
Although the question of whether a bank may operate a bank travel agen-
cy and not be subject to taxation was not directly ruled on in the case of
Arnold Tours, Inc., v. Camp, 408 F.2d 1147 (1st. Cir. 1969), there is language
in the case which seems to indicate that such service is not incidental and





14 ANNUAL REPORT OF THE ATTORNEY GENERAL


is therefore taxable. Also see the U. S. Sup. Ct's ruling of Nov. 23, 1970, in
the Arnold Tours case.
Separate taxes for unrelated activities performed by the same company or
business are reasonable and valid. Cf. Bentley-Gray Dry Goods Co. v. City
of Tampa, Fla. 1939, 188 So. 758; 205.401, 205.471, F. S.; AGO 062-121.
In view of the above, separate or unrelated activities of banks (e.g., data
processing services or travel agency services for the public) should be subject
to the occupational license tax required by 205.471, F. S., which provides in
part as follows:
(1) Every person engaged in any business in any county as
owner, agent, or otherwise that performs some service for the public
in return for a consideration shall pay a license tax in each county
based on the maximum number of persons actually employed or to
be employed during the license year ....
(2) No license shall be required under this section for any busi-
ness the principal function of which is the performance of some ser-
vice for the public in return for a consideration when the nature of
the service is such that an occupational license is required of the busi-
ness by some other law of this state; but this proviso shall not be
construed to exempt service departments of merchandising and other
lines of business from the license required by this section . (Em-
phasis supplied.)
This tax can be required of banks after Jan. 1, 1972. The savings provision
of Public Law No. 91-156 (see discussion in question 1, supra) applies and,
therefore, prohibits state taxation of the bank for the activities prior to 1972,
absent affirmative action by the legislature. Public Law No. 91-153 3 (Dec.
24, 1969).

071-12-January 29, 1971
GAME AND FRESH WATER FISH COMMISSION
ANIMAL KINGDOM-DEFINED
To: O. E. Frye, Jr., Director, Game and Fresh Water Fish Commission,
Tallahassee
Prepared by: Halley B. Lewis, Assistant Attorney General
QUESTIONS:
1. Does the term "any species of the animal kingdom" cover
fish using the biological precept that basically all living organisms are
either plant or animal?
2. Does the term "animal" refer to mammal rather than all an-
imal life?
3. Does the law as written cover fish and reptiles?
SUMMARY:
Although this particular question has not been answered by any
courts we have searched, nevertheless this office is convinced that the
term "any species of the animal kingdom" as used in Florida law
covers fish and reptiles as well as mammals.
A search reveals that a question of like nature has not been heretofore
answered. Nevertheless, my studies of your questions convince me that the
term "any species of the animal kingdom" does embrace fish. This conclusion
does not differ from your reasoning that basically all living organisms are
either plant or animal.





ANNUAL REPORT OF THE ATTORNEY GENERAL 15


Support for the conclusion above-stated is found in Webster's Seventh New
Collegiate Dictionary as follows:
[A]nimal 1: any of a kingdom (Animalia) of living beings typically
differing from plants in capacity for spontaneous movement and rapid
motor response to stimulation ....

[F]ish la: an aquatic animal ....
The definition of "animal" contained in Black's Law Dictionary, Revised
Fourth Edition, is as follows: "Animal. Any animate being which is endowed
with the power of voluntary motion. An animate being, not human."
Additionally, in 36A C.J.S., Fish, 1, p. 494, fish has been defined as fol-
lows:
"Fish," in its broadest sense, is a designation of almost any ex-
clusively aquatic animal, vertebrate, or invertebrate. The term "fish"
includes in itself oysters, clams, and other shellfish, and has also been
held to be included in the term "game." The term "agricultural prod-
ucts" includes fish.
Fish are classified in the law, largely because of their migratory
characteristics and want of a fixed habitat, as animals ferae naturae.
The Random House Dictionary, Unabridged Edition, defines "kingdom" as:
".. 3. [A] realm or province of nature, esp. one of the three great divisions
of natural objects: the animal, vegetable, and mineral kingdoms."
The above reference cites the case of State ex rel. Oglesby v. Hand, Fla.
1928, 119 So. 376, as authority for the fact that fish are classified as animals
ferae naturae with fowls of the air, making no distinction between one species
of wild animal and another:
[8] The act deals with the subject of the conservation of fish
and game in this state. Fish can and should be classed as game. See
8 Am. and Eng. Ency. Law, 1023.
Blackstone, in writing of animals ferae naturae, classes fish with
fowls of the air, there being in nature no distinction between one
species of wild animals and another. 2 Blackstone's Com. 403. See,
also 2 Kent's Com. 416.
Answering your questions in light of the probable adequacy of 372.265,
F. S., requires a consideration of existing statutory provisions in pari material
with the sections above-mentioned, viz: 372.26 and 372.71.
In the case of Ferrari v. Board of Health, Fla. 1888, 5 So. 1, the Supreme
Court of Florida said:
We have had occasion recently, in the case of O'Donovan v.
Wilkins, 24 Fla. -, 4 South. Rep. 789, to consider questions arising
under the quarantine laws of the state; and, as there are several acts
in force on the subject, we held that they must be construed as acts
in pari material. As to this Kent says: "Several acts in pari material,
and relating to the same subject, are to be taken together, and com-
pared, in the construction of them, because they are considered as
having one object in view, and as acting upon one system." "The
rule applies though some of the statutes may have expired, or are
not referred to in the other acts. The object of the rule is to ascertain
and carry into effect the intention; and it is to be inferred that a
code of statutes, relating to one subject, was governed by one spirit
and policy, and was intended to be consistent and harmonious in its
several parts and provisions." 1 Kent. Comm. 463; President, etc., v.
People, 9 Barb. 161.





16 ANNUAL REPORT OF THE ATTORNEY GENERAL


Section 372.26, F. S., 1969 reads:
372.26 Imported fish.-No person shall import into the state or
place in any of the fresh waters of the state any fresh water fish
of any species without having first obtained a permit from the game
and fresh water fish commission.
Section 372.71, F. S., 1969 reads:
372.71 Fines and penalties; forfeiture of license.-Any person vi-
olating the provisions of this chapter, shall, upon conviction, unless
otherwise provided, be fined for the first offense not less than ten
dollars nor more than three hundred dollars, or imprisoned not to
exceed ninety days, and for a second or subsequent offense shall be
fined not less than twenty-five dollars nor more than five hundred
dollars or imprisoned not more than six months. Any person con-
victed as aforesaid shall forfeit any license or permit that may have
been issued to him under the provisions of this chapter and shall
forthwith surrender the same to the court. If such violation occurs
in the open season no license or permit shall be issued under the
provisions of this chapter to such person at any time during the re-
mainder of such open season, or if such violation occurs during the
closed season no license shall be issued to such person for the open
season next following.
It is apparent, by cursory reading, that the sections mentioned compel the
reader to the conclusion that all are in pari material.
Considering the statutes above-mentioned in reverse order, you observe
that 372.71, F. S., provides a penalty for persons violating the provisions of
Ch. 372, "unless otherwise provided." Therefore, allowance is made for the im-
posing of punishment other than that or different from that specified in said
section.
With this in mind your attention is now directed to 372.26 and 372.265,
F. S. The first-mentioned section provides essentially that no person shall im-
port into the state or place in any of the fresh waters of the state any fresh
water fish of any species without having first obtained a permit from the
Game and Fresh Water Fish Commission. Section 372.265 essentially provides
that it is unlawful to import for sale or use, or to release within this state,
any species of the animal kingdom not indigenous to Florida without having
first obtained the specified permit. The new element introduced through 372.-
265 [1970 Supp.], not in existence in 372.26, 1969, is the import of any species
of the animal kingdom not indigenous to Florida. Consequently, it is the act
of importing for the purposes specified the species not indigenous to Florida,
without the permit, that is made subject to the more severe penalty.

071-13-February 1, 1971
POLLUTION CONTROL
DEPARTMENT OF POLLUTION CONTROL-JURISDICTION
To: Vincent D. Patton, Executive Director, Department of Pollution Control
Prepared by: Bjarne B. Andersen, Jr., Assistant Attorney General
QUESTIONS:
1. Does the Department of Pollution Control have jurisdiction
over waters which are entirely within private property boundaries?
a. Specifically, can the Department of Pollution Control regulate
the use of pesticides, herbicides, insecticides and other chemicals






ANNUAL REPORT OF THE ATTORNEY GENERAL 17


which may have an influence on the ecology?
2. Can the Department of Pollution Control exercise jurisdiction
over the use of chemicals applied in the maintenance of drainage,
subdivision, and irrigation canals under the following situations?
a. When treated waters are contained and cannot be released in-
to other bodies of water as defined by 403.031(4), F. S.
b. When treated waters can be released by opening control
structures like flood gates, discharge pumps or wells.
c. When tidal action causes a mixing of waters within canals,
ditches or waterways with tidal waters and there are no means of
preventing tidal flow and subsequent mixing.
SUMMARY:
When it can be established that water flow from lakes or ponds
entirely within private ownership carries over to the property of oth-
ers, the department may exercise jurisdiction, especially over chem-
ically treated waters, and including those in uncontrolled canal sys-
tems mixing with tidal waters of the state.
The Air and Water Pollution Control Act, Ch. 403, F. S., 403.031(4), F.
S., 1969 [403.031(3), F. S., 1971], defines the "waters" that are subject to the
provisions of the act as including:
"Waters" shall include but not be limited to rivers, lakes, streams,
springs, impoundments, and all other waters or bodies of water, in-
cluding fresh, brackish, saline, tidal, surface or underground. Waters
owned entirely by one person other than the state are included only
in regard to possible discharge on other property or water. Under-
ground waters include, but are not limited to, all underground waters
passing through pores of rock or soils or flowing through in channels,
whether man-made or natural. (Emphasis supplied.)
The courts of this state have settled the question that small lakes and
ponds are susceptible to private ownership. Bannon v. Logan, Fla. 1913, 63
So. 454, LRA 1916 E. 522; Pounds v. Darling, Fla. 1918, 77 So. 666, LRA 1918
E. 949; Crutchfield v. Sebring Realty Company, Fla. 1954, 69 So.2d 328.
As to the use and availability of water in private lakes or ponds under
the Water Resources Law, 373.081(7), F. S., 1969 [373.081(6), F. S., 1971],
the jurisdiction of the state is excluded from: ". lakes or ponds completely
surrounded by land the title to which is vested in a single owner or in two
or more cotenants, joint tenants or tenants by the entireties .. "
It therefore appears that it is this "possible discharge" from private waters
which the legislature intended to be subject to the provisions of Ch. 403.
According to Black's Law Dictionary, 4th Ed. Rev., the word "possible"
is defined as:
Capable of existing, happening, being, becoming or coming to
pass; feasible, not contrary to nature of things; free to happen
or not . In another sense, the word denotes extreme improbability,
without excluding the idea of feasibility. (Citations omitted.)
However, regardless of the apparent broad base of "possible discharges"
upon which the jurisdiction of the Department of Pollution Control would rest,
as stated in the zoning regulation case of Burritt v. Harris, Fla. 1965, 172 So.2d
820, 823, involving in part the "stacks and smoke produced by St. Regis," the
Supreme Court stated:
The constitutional right of the owner of property to make legitimate
use of his lands may not be curtailed by unreasonable restrictions





18 ANNUAL REPORT OF THE ATTORNEY GENERAL


under the guise of police power. The owner will not be required
to sacrifice his right absent a substantial need for restrictions in the
interest of public health, morals, safety or welfare. If the zoning re-
striction exceeds the bounds of necessity for the public welfare, as,
in our opinion, do the restrictions controverted here, they must be
stricken as an unconstitutional invasion of property rights. (Emphasis
supplied.)
In the case of underground waters, the Supreme Court in Pensacola Gas
Co. v. Pebley, Fla. 1889, 5 So. 593, sustaining an award of damages for pollu-
tion of well waters, noted at page 595:
[T]he appellant gas company had the right to use the water
in and about the gasworks as they pleased, but they had no right
to allow the filthy water to escape from their premises, and to enter
the lands of their neighbors. It was the duty of the company to con-
fine the refuse from their works so that it could not enter upon and
injure their neighbors, and if they did so it was done at their peril;
the escape of the refuse filthy water being in itself an evidence of
negligence on the part of the gas company.
As stated in Tampa Waterworks Co. v. Cline, Fla. 1896, 20 So. 780, 33
LRA 376, 53 Am. St. Rep. 262, a person may open up a way to subsurface
water but he "cannot divert it or pollute it." See also Cason v. Florida Power
Co., Fla. 1917, 76 So. 535, LRA 1918 A, 1034; Labruzzo v. Atlantic Dredging
& Const. Co., Fla. 1951, 54 So.2d 673, 29 ALR 2d 1346; Koch v. Wick, Fla.
1956, 87 So.2d 47; and Standard Oil Company v. Dunagan, Fla. 3 D.C.A.
1965, 171 So.2d 622.
It therefore appears reasonable to assume that the exercise of the depart-
ment's jurisdiction over a particular private lake or pond turns on the factual
determination to be made in each case as to whether or not such private lake
or pond can in fact "possibly discharge on other property or water."
For example, if a person operates a drainage well from a private lake or
pond, there could be little question as to the possibility of discharge to under-
ground water. But in situations involving percolation, the previously cited cases
indicate there must be evidence of the natural flow of the waters under the
ground and mere opinion evidence unsupported by tests may not be enough
to prove the discharge. Such unsupported opinion shows only an existence of
speculative circumstance resulting in an uncertain estimate which can be over-
ridden by contrary opinion. Standard Oil Company v. Dunagan, supra.
Concerning the matter of surface "discharge on other property or water,"
the cases appear to indicate that possible flow in "a well-recognized ditch"
is sufficient under the holding in Libby, McNeil & Libby v. Roberts, Fla.
2 D.C.A. 1959, 110 So.2d 82, as a person is responsible for allowing accumu-
lated surface water to be cast upon privately owned land. See Bray v. City
of Winter Garden, Fla. 1949, 40 So.2d 459.
Thus, regardless of when the discharge occurs, if the land formation allows
a possible discharge to occur, even when the water body has dried up for
an extended period of time (See Baker v. State, Fla. 1956, 87 So.2d 497; Bro-
ward v. Mabry, Fla. 1909, 50 So. 826), the department may exercise jurisdic-
tion over such possible discharge.
Section 403.062, F. S., 1969, provides:
The department and its agents shall have general control and su-
pervision over underground water, lakes, rivers, streams, canals,
ditches and coastal waters under the jurisdiction of the state insofar
as their pollution may affect the public health or impair the interest
of the public or persons lawfully using them.





ANNUAL REPORT OF THE ATTORNEY GENERAL 19



It therefore appears in answer to question 1 that when sufficient facts can
establish the reasonable possibility of the flow from private lakes or ponds en-
tirely within private property boundaries onto property or water of another,
the Department of Pollution Control may exercise its jurisdiction over such
bodies of water.
Under the specific situation set forth in your request concerning the De-
partment of Pollution Control regulating the use of pesticides, herbicides, insec-
ticides and other chemicals which may have an influence on the ecology, the
Florida Pesticide Law, Ch. 487, F. S., 1969, appears to vest technical control
responsibilities in the Department of Agriculture. In particular, I refer to the
regulatory responsibilities of that department pertinent to purchase, use and reg-
istration of "pesticides" (see 487.042 and 487.051, F. S.), and the new legis-
lation, effective Jan. 1, 1971, pertaining to "persistent pesticides" as set forth
in Ch. 70-52, Laws of Florida (amending Ch. 487, F. S.). The new limitations
on the use of "persistent pesticides" provide only reporting requirements to the
Department of Pollution Control from the Division of Health and the Depart-
ment of Agriculture.
While the subject laws of both agencies indicate no specific control respon-
sibilities in the Department of Pollution Control, except the requirement of no-
tice, I would assume that the required reporting of pesticide use or application
is primarily for the purpose of assembling technical data to develop the com-
prehensive program for the prevention, control and abatement of pollution of
the air and waters of the state as contemplated in the department's duties set
forth in 403.061(11) and (14), F. S., the latter subsection pertaining to field
studies for statewide air and water quality.
Recognizing there is a destructive capability in chemical herbicides as air-
borne contaminants of water (see Rabin v. Lake Worth Drainage District, Fla.
1955, 82 So.2d 353), under certain situations the Department of Pollution Con-
trol may well have an enforcement responsibility.
Under the factual situation set forth in your request, subject to the laws
regulating the use and application of pesticides, the Department of Pollution
Control does not have the authority under present law to regulate the use of
pesticides, herbicides, insecticides and other such chemicals which may have an
influence on the ecology when such chemicals are used by a person solely on
his own property in accordance with current state regulations as current law
now provides. However, should such poisonous chemicals pass by air or water
onto the property or water of another, at that moment, according to 403.031-
(3), F. S., 1969 [403.031(2), F. S., 1971], their presence in the outdoor
atmosphere or waters of the state in quantities which are or may be
potentially harmful or injurious to human health or welfare, animal or plant
life, or property ... ." may constitute a state of pollution subject to control
by appropriate regulation of the Department of Pollution Control. See Lewis
v. Florida State Board of Health, Fla. 1 D.C.A. 1962, 143 So.2d 867; Cert. den.
for other reasons, 149 So.2d 41. Question la is answered accordingly.
In answer to question 2 and the various situations presented in your re-
quest, we must consider initially the question-Can the Department of Pollution
Control exercise jurisdiction over the use of chemicals applied in the mainte-
nance of drainage, subdivisions and irrigation canals?
The legal text, Florida Jurisprudence, Volume 11, under the subject title,
Drainage and Drainage Districts, 2, states:
It is well settled that the drainage and reclamation of swamp and
overflowed lands are a proper exercise of legislative power, and that
independently of constitutional authorization, the legislature has the
power by appropriate enactment to authorize or require local im-
provements or reclamation essential to the promotion of the public
health, necessity, or general welfare, by means of the construction of





20 ANNUAL REPORT OF THE ATTORNEY GENERAL



canals or drains for the drainage of swamps, marshes, and overflowed
lands or areas, in so far as the purpose is a public one.
The legislature in defining a "person" subject to Ch. 403, F. S., in 403.031-
(12), 1969 [403.031(11), F. S., 1971], included: ". the state or any agency
or institution thereof, any municipality, political subdivision, public or private
corporation, individual ... ."
It can safely be assumed further that Ch. 403, F. S., also would apply
to the various "special taxing and drainage districts" since its context does not
indicate that they are excluded from the definition of a "political subdivision"
as set forth in 1.01(9), F. S. As to water management districts, their authority
to control pollution has been specifically vested in the Department of Pollution
Control by 403.261, F. S.
However, in the case of a public body, there is an exception to the above
application of Ch. 403, because in the area of aquatic weed control, Ch. 70-
203, Laws of Florida, the controlled use of pesticides, etc., for this limited
purpose, is allowed to be undertaken by public bodies, authorities, agencies
and special districts operating under the guidance of and in cooperation with
the Department of Natural Resources or its delegated authority. (See 2, Ch.
70-203; 372.925(3), F. S., 1970 Supp.)
An examination of case law indicates that normally the courts will not as-
sume jurisdiction in the case of a public body exercising discretionary powers
within its particular enabling act. Broward County Rubbish Con. Ass'n v. Brow-
ard County, Fla. 2 D.C.A. 1959, 112 So.2d 898. But in the case of conflicting
public purposes which cannot be accomplished in any other practical way, the
courts will rule with the public purpose which has the greater or more para-
mount importance. State v. T.O.L., Inc., Fla. 4 D.C.A. 1968, 206 So.2d 69.
Thus, when an incident occurs which is beyond the scope of the require-
ments of the Florida Pesticide Law, Ch. 487, F. S., and the Florida Aquatic
Weed Control Act, Ch. 70-203, supra, the Department of Pollution Control ap-
pears to have authority to control the discharge of toxic chemicals into the
waters of this state where water quality standards are or can be violated by
discharge from otherwise exempt "public or private waters." See 403.141 and
403.161, F. S., and Rule Subsections 17-3.02(4) and 17-3.04(2)(k), et seq., Flor-
ida Administrative Code, 1970 Revision, i.e., cyanide, arsenic, oils, etc.,
adopted in implementation of and pursuant to 403.061(13), F. S.
AS TO QUESTION 2a:
When chemically treated waters are contained or otherwise controlled so
that they are not discharged onto other lands or waters, they appear to qualify
as "private waters" previously discussed in question 1, regardless of ownership
status. As such, the owner of this type of exempt water would be subject to
regulatory control by agencies other than the Department, so long as the chem-
icals or the treated waters remain incapable of discharging onto other lands
or waters. See Lamb v. Dade County, Fla. 3 D.C.A. 1964, 159 So.2d 477, and
Bray v. City of Winter Garden, supra.
AS TO QUESTION 2b:
As previously stated in question 1, under the statement of facts presented,
the chemically treated water is capable of discharge into other waters. The dis-
charge of the contained water will be, in most cases, at the discretion of the
public authority or private owner. The opportunity for the chemically treated
water to mix with other waters, creating possible polluting conditions, requires
necessary control. Also, since chemically treated waters affect the water column
itself, seepage and escapes of the treated water should not be disregarded. Ac-
cordingly, under this situation the Department of Pollution Control could ex-
ercise its responsibilities in order to protect the nontreated receiving waters.






ANNUAL REPORT OF THE ATTORNEY GENERAL 21


For a comparable situation involving constitutional authority of the Game and
Fresh Water Fish Commission jurisdiction over phosphate pits connected to
other bodies of water, streams or rivers, see AGO 047-128 Apr. 25, 1947, Bien-
nial Report of the Attorney General, 1947-1948, p. 402.
AS TO QUESTION 2c:
As stated in 34 Fla. Jur., Water and Watercourses, 2, water "is fluid and
mobile, a fugitive." As previously discussed, if a body of water is isolated from
other bodies of water, it may, under certain situations, be exempt from state
control. Since no constitutional property right is invaded by regulations autho-
rized and adopted by the Department of Pollution Control for the protection
of the waters of this state, which is an exercise of police powers, I am of
the opinion that the Department of Pollution Control can exercise its jurisdic-
tion over uncontrolled canal systems discharging and mixing with the tidal or
coastal waters of Florida.


071-14-February 1, 1971
LAW ENFORCEMENT OFFICERS
WEAPONS-AUTHORITY OF CORRECTIONAL OFFICER TO CARRY
A PISTOL
To: G. P. Raymond, Correctional Officer, Raiford
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
Is it unlawful for a correctional officer at the state prison to
carry a pistol when he goes out shopping, etc.?
SUMMARY:
A law enforcement officer is authorized to carry a pistol only
when on official duties, or when licensed by the county commission.
Section 790.05, F. S., makes it unlawful for a person to carry a pistol a-
round with him or have it in his manual possession in any county without
first obtaining a license from the board of county commissioners of that coun-
ty. Section 790.06, F. S., regulates the issuance of such licenses.
Section 790.01, F. S., makes it unlawful to carry a concealed firearm on
or about one's person.
Section 790.051, F. S., provides that:
790.051 Exemption from licensing requirements; law enforcement
officers.-Law enforcement officers are exempt from the licensing
and penal provisions of this chapter when acting at any time within
the scope or course of their official duties or when acting at any
time in the line of or performance of duty. (Emphasis supplied.)
Section 790.001(8)(d), F. S., says:
(8) "Law enforcement officer" means:

(d) Employees of the state prisons or correctional systems who
have been so designated by the division of corrections of the depart-
ment of health and rehabilitative services or. by a superintendent of
an institution[.]




22 ANNUAL REPORT OF THE ATTORNEY GENERAL



The result is that a correctional officer at the state prison is a "law en-
forcement officer" under 790.001(8)(d), F. S., only if he has been designated
as such by the Division of Corrections or by the superintendent of the prison.
Also, even if he is a law enforcement officer by reason of such designation,
790.051, F. S., exempts him from the penal provisions of 790.05 and 790.01,
F. S., and from the licensing provisions of 790.05 only when he is acting
within the scope of his official duty, and it appears to be obvious that he is
not so acting when he goes on a personal errand to shop or attend to other
matters not within the scope of his official duty.
I note that 790.01(4), F. S., 1969, relating to carrying concealed weapons
and concealed firearms, provides that ". Nothing in this section shall relate
to persons licensed as set forth in 790.05 and 790.06." This means "that if
a person has a license from the board of county commissioners of a particular
county pursuant to 790.05 and 790.06, authorizing him to carry a pistol, then
he will not be subject to prosecution for carrying a pistol at any time, whether
concealed or not, in that county while such license is in force. I point out
that a license issued in one county will be effective only in that county.


071-15-February 1, 1971
TAXATION
APPLICATION FOR EXEMPTION-HOUSING AUTHORITY-
CH. 423, F. S.
To: Devane Mason, Tax Assessor, Quincy
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Does a housing authority, in order to obtain the tax exemption
provided by Ch. 423, F. S., have to comply with 196.011, F. S.,
(formerly 192.062) requiring the filing of an application for ex-
emption with the county tax assessor?
SUMMARY:
A housing authority to obtain tax exemption provided in Ch. 423,
F. S., does not have to file an application for exemption with the
county tax assessor.
A consideration of the statutes requires that the question be answered in
the negative.
Section 196.011, F. S., 1969, states:
Every person or organization who has the legal title to real or
personal property which is entitled by law to exemption from tax-
ation as a result of its ownership and use, except property owned
and used exclusively for governmental purposes or religious purposes,
shall before April 1 of each year file an application for exemption
with the county tax assessor listing and describing the property for
which exemption is claimed and certifying its ownership and use. The
department of revenue shall prescribe the forms upon which the ap-
plication is made. (Emphasis supplied.)
The statute clearly provides that an application for exemption does not have
to be filed in the case of "property owned and used exclusively for govern-
mental purposes." The legislative finding with reference to housing authorities
created under our laws is that these projects or operations "are governmental
functions of state concern" and "are exclusively for public uses and [municipal]






ANNUAL REPORT OF THE ATTORNEY GENERAL 23


purposes. .. ." Sections 423.01(4) and 421.02(3), F. S., 1969. Although the
statutory requirement of an exclusively governmental use would appear to be
more restrictive than if the reference were to public or municipal uses gener-
ally, I conclude from a study of the provisions of Chs. 421-423, F. S., as well
as cases construing those laws, that the ownership and use of property by hous-
ing authorities functioning under those statutes would constitute a use "exclu-
sively for governmental purposes" within the provision of 196.011 excluding
property so used from the obligation to file annual application for tax exemp-
tion. Housing authorities have been uniformly regarded as exercising a govern-
mental, as opposed to a proprietary, function, essential to public safety and
health. State ex rel. Grubstein v. Cambell, Fla. 1941, 1 So.2d 483; Green v.
Panama City Housing Authority, Fla. 1 D.C.A. 1959, 110 So.2d 490.
A previous opinion of this office, AGO 063-138, written shortly after the
enactment of Ch. 63-342, Laws of Florida, which contained the provision now
appearing as 196.011, F. S., is in accord with the construction of the language
"owned and used exclusively for governmental purposes" to refer to such ex-
empt municipal uses as that now in question. Although the general discussion
of property tax returns in the opinion may be qualified in some respects by
subsequent amendments to the statutes, cf. 193.052, F. S. (1970 Supp.). I find
no change in the terms of 196.011.
I conclude that 196.011, F. S., does not require the filing of an annual
application for tax exemption on behalf of a housing authority otherwise en-
titled to exemption under the terms of Ch. 423, F. S.

071-16-February 1, 1971
LAW ENFORCEMENT OFFICERS
STATE ATTORNEYS-SPECIAL RISK RETIREMENT BENEFITS

To: T. Edward Austin, State Attorney, Jacksonville
Prepared by: Arthur L. Canaday, Assistant Attorney General

QUESTION:

Is a state attorney eligible for "high hazard" or "special risk" re-
tirement benefits?
SUMMARY:

State attorneys and assistant state attorneys are eligible for special
risk retirement benefits as law enforcement officers.

I am in agreement that the 1968 opinion [AGO 068-15] should be modified
in light of present-day responsibilities of state attorneys as well as the enact-
ment of Ch. 70-112, Laws of Florida, the new Florida Retirement System Act
[Ch. 121, F. S.].
The new retirement act gives increased benefits to "special risk members."
Such members are defined in 2(15) of the act [121.021(15), F. S.] as follows:

"Special risk member" means any officer or employee receiving
salary payments for work performed as a peace officer, law enforce-
ment officer, policeman, highway patrolman, custodial employee at
a correctional or detention facility, fireman or any other job in the
field of law enforcement or fire protection; provided the duties of
such person are certified as hazardous by his employer and approved
by the administrator.




24 ANNUAL REPORT OF THE ATTORNEY GENERAL


It is my opinion that Ch. 70-112, Laws of Florida, includes both state
attorneys and assistant state attorneys within the category of "special risk mem-
bers." It is noted that the above section embraces any officer or employee
receiving salary for work performed as a "law enforcement officer." While that
term is not specifically defined in Ch. 70-112, it is defined in two other chap-
ters of the Florida law to include state attorneys and their assistants. In the
Weapons and Firearms Law, Ch. 790, F. S., the term "law enforcement officer"
is defined as: "All state attorneys, United States attorneys, county solicitors, and
county prosecutors and their respective assistants and investigators." [790.001
(8)(f).]
In the Wiretapping Law, Ch. 934, F. S., the following provision appears
in the definition section [934.02(6)]:
"Investigative or law enforcement officer" means any officer of
the state or political subdivision thereof who is empowered by law
to conduct investigations of or to make arrests for offenses enumer-
ated in this chapter and any attorney authorized by law to prose-
cute or participate in the prosecution of such offenses. (Em-
phasis supplied.)
In addition to these definitions in other chapters of the law, we have the
obvious fact in today's climate of unrest that the office of state attorney can
no longer be described in the stereotyped courtroom image we have seen on
television. Dr. Seymour Gelber, a lawyer authority on the state attorney's office
in Florida, has written:
New and innovative approaches to crime fighting have taken the
prosecutor away from the cloistered courtroom. The trend in effec-
tive law enforcement is for greater cooperation and participation
among all segments of the criminal justice system. The Federal gov-
ernment through LEAA has funded programs that inter-relate these
agencies. The need for more sensitive approaches and the turmoil in
our society require the prosecutor to be a more active participant.
The threat of civil disorders in a community demands the im-
mediate presence of prosecuting officials. The joint effort required
in action programs against organized crime leaves the prosecutor sub-
ject to threatening reprisals. State Attorneys must be and are available
on 24-hour call, at the crime scene, particularly in homicides. Investi-
gations requiring undercover work include prosecutor participation in
stake-outs, surveillance and the proper service of warrants. Note must
also be taken of the recent spate of courtroom shooting involving
prosecutions for criminal offenses.
The prosecutor, as such, is more than a lawyer. The prosecutor
is an integral part of the criminal justice system. The television image
confining him to dramatic closing arguments draws an incomplete
picture. He shares the hazards and is exposed to the threats that
make the duties of the professional prosecutor a special risk.
In view of these present-day facts of life and the statutory definitions cited
above, it is my opinion that the term "law enforcement officer" found in
2(15) of Ch. 70-112, Laws of Florida [121.021(15), F. S.], includes state at-
torneys and assistant state attorneys. As law enforcement officers they are
therefore eligible for special-risk retirement benefits under that law. The opin-
ion of my predecessor is accordingly modified to the extent that it runs coun-
ter to the above ruling.






ANNUAL REPORT OF THE ATTORNEY GENERAL 25


071-17-February 1, 1971
TAXATION
AD VALOREM EXEMPTION-HOSPITAL HOUSING-
196.191(13), F. S.
To: Carl Ogden, Chairman, House Ad Valorem Tax Subcommittee, Tallahassee
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Does 196.191(13), F. S., 1969, exempt from taxation property
used for housing hospital personnel and their families, when the prop-
erty is owned by a nonprofit corporation operating under a charter
and articles of incorporation providing any hospital or institution en-
gaged in work which provides opportunities or facilities consistent
with the coordinated training program herein provided for shall be
eligible for membership in the corporation?
SUMMARY:
Property used for housing hospital personnel and their families
of a nonprofit corporation is not clearly tax exempt.
I conclude for reasons detailed below that the statute in question does not
clearly exempt such property.
Section 196.191(13), F. S., 1969, states conditions or prerequisites which
expressly limit its application to property described as follows:
All property, real and personal, of any hospital, licensed by the
division of health owned and operated by a Florida corporation
not for profit, which has been exempt from the payment of taxes
to the United States upon the income derived from the operation of
such hospital, and used by such hospital for hospital purposes, includ-
ing but not limited to housing for nurses, interns and other hospital
personnel provided that all income of such hospital, remaining
after payment of the usual and necessary expenses of operation .
shall be used exclusively for educational, charitable or scientific pur-
poses, including the maintenance, improvement or expansion of its
facilities.
The exemption under this section is limited to property "of hospitals"
which meet the prescribed criteria. There seem to be serious questions raised
by the facts stated in your letter and enclosures. In addition to the quoted
charter provision extending membership eligibility to institutions other than
licensed hospitals meeting the statutory conditions, the articles of incorporation,
as amended, extend the corporate purposes to include the following:
To provide, on a non profit basis, housing for low and moderate in-
come families and families displaced from urban renewal areas, or
as a result of governmental action, or as a result of a major disaster,
where no adequate housing exists for such groups, pursuant to Section
221(d)(3) of the National Housing Act as amended.
The foregoing amendment supplements the originally stated corporate purpose
which, in general terms, was to provide a program among all present and fu-
ture member institutions for the training of physicians and related professional
personnel.
Even assuming that the statute would include property owned by a cor-
porate subsidiary of a licensed hospital or hospitals; and that the corporation
in question was created and is presently owned by duly licensed hospitals,




26 ANNUAL REPORT OF THE ATTORNEY GENERAL



neither their exempt status nor the use of the property for housing interns,
residents and their families, would be conclusive. The fact remains that the
statute states explicit conditions for both ownership and use by particularly
described hospitals or hospital corporations, which stated requirements cannot
be varied in any material way. The enumerated requirements could not, in
my opinion, be extended to include property of a corporate entity such as
that hereinabove described.
A consideration of decisions preceding the enactment of 196.191(13),
F. S., Ch. 63-541, Laws of Florida, indicates that if such property is not that
of a hospital entitled to claim exemption of housing facilities under 196.191
(13), then it would appear to be exempt only if it comes within the provisions
of 196.191(3), F. S., which exempts "Such property of educational chari-
table and scientific institutions as shall actually be occupied and used by
them for the purpose for which they have been organized, provided, not more
than seventy-five per cent of the floor space of said building is rented
." This section was construed to exempt property used to provide housing
for an adjacent exempt institution's key personnel on twenty-four hour call, be-
cause such use "is accomplishing the necessary function of having at hand
added skilled assistance which it can commandeer in time of emergency," and
in those circumstances "there is no renting out of property within the contem-
plation of the restrictive proviso" in 196.191(3). Maxwell v. The Good Sa-
maritan Hospital, Fla. 2 D.C.A. 1964, 161 So.2d 31; AGO 060-94. Cf. Philips
et al. v. So. Baptist Hosp., Fla. 1969, 224 So.2d 684. In the case of the property
now under consideration, the apartment complex, according to your letter, is
close to one of the hospitals using its facilities but it is considerably distant
from the others.
For the reasons above outlined, I believe that the language of 196.191(13)
F. S., would require amendment in order to effect exemption of the subject
property. With all respect to the contrary conclusion in the opinion of counsel
enclosed with your letter, I find the decision in Jasper v. Mease Manor, Fla.
1968, 208 So.2d 821, supports only the proposition that an express legislative
redefinition of exempt use would be sustained.


071-18-February 9, 1971
ARREST
AUTHORITY OF POLICE OFFICER TO ARREST FOR
DRUNKENNESS MUNICIPAL ORDINANCE
To: Irving H. Propper, Municipal Judge, Cape Canaveral
Prepared by: Nelson E. Bailey, Assistant Attorney General
QUESTION:
May a police officer arrest a person for drunkenness, when the
person is in the parking area of an apartment house and has not
been on a public highway, and when the arrest is pursuant to a
municipal ordinance?
SUMMARY:
A police officer is authorized to arrest a person for drunkenness
in a public place in a parking area of a multiple housing unit.
Ordinance No. 20-65, states:
Section 1(4) BEERS AND WINES . (4) Intoxication on
streets-it shall be unlawful for any person to be found in a state
of intoxication in any public place, street or thoroughfare in the city.






ANNUAL REPORT OF THE ATTORNEY GENERAL 27



A distinction should be noted between the crime of "drunkenness" referred
to in 856.01, F. S.; the crime of "public drunkenness" in some other states;
and "drunkenness in a public place" as prohibited by the subject municipal
code. The first refers to the act of drunkenness, regardless of place; the second
refers to drunkenness in public view; and the final prohibits drunkenness in
a place defined as public.
The attorney general is of the opinion that, absent an express provision
to the contrary, a "public place" is any place where all persons have a right
to go or be: a place readily accessible and visible to other members of the
community. See, e.g.: Stateham v. State, Okla. 1952, 243 P.2d 743; State v.
Tincher, Ind. 1898, 51 N.E. 943; Berry v. Springdale, Ark. 1964, 381 S.W.2d
745; In Re Zorn, Cal. 1963, 381 P.2d 635; and People v. Hook, N.Y. 1957,
146 N.E.2d 689.
The parking area to a privately owned apartment house is such an area.
It is a common or public passageway for any member of the public to use
for purposes such as: (1) to attempt door-to-door sales or other solicitations;
(2) to inquire about availability of apartments; (3) to visit friends living on
the premises; or, (4) if they live there, to come and go from their place of
residence. See, e.g: People v. Soule, N.Y. 1913, 142 N.Y.S. 876. See also: 35
Words & Phrases, Public Place 433, at 440, 441, 443; 8 A.L.R. 3rd 930.
In response to your question: Yes, the police officer may make a valid
arrest, for drunkenness in a public place, of a person in the parking area to
a multiple housing unit for the reason that such a parking area is a public
place as the term is used in your municipal code.


071-19-February 9, 1971
HOMESTEAD
DESCENT OF COOPERATIVE APARTMENT INTEREST
To: John W. Bell, State Senator, Fort Lauderdale
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Since the owners of a cooperative apartment own only a stock
interest in a corporation and do not have an interest in the realty
as is the case with condominium owners, is such property subject to
law controlling descent of homesteads when the owner of the cooper-
ative apartment dies and he is the sole owner and leaves a wife and
children?
SUMMARY:
Owners of a cooperative apartment have only a stock interest
in the corporation and none in the realty, therefore such property is
not subject to the law controlling descent of homesteads.
Subject to qualifications stated in the discussion below, a negative answer
is, in my opinion, most reasonable. The question is entirely novel, lacking any
direct judicial expression by the Florida courts as to the effect of recent
changes in applicable constitutional and statutory provisions. Your conclusion
appears to be correct that existing statutes do not expressly treat the point.
Attorney General Opinion 061-55 concludes that under the law then applicable
such property did not constitute homestead for any purpose.
When the owner of property qualifying generally as homestead is survived
by a spouse or minor child, the controlling constitutional provision is now that
stated in Art. X, 4, State Const., providing that the home shall not be subject
to devise:




28 ANNUAL REPORT OF THE ATTORNEY GENERAL



SECTION 4. Homestead; exemptions.-
(a) There shall be exempt from forced sale under process of
any court, and no judgment, decree or execution shall be a lien there-
on, except for the payment of taxes and assessments thereon, obli-
gations contracted for the purchase, improvement or repair thereof,
or obligations contracted for house, field or other labor performed
on the realty, the following property owned by the head of a family:
(1) a homestead, if located outside a municipality, to the extent
of one hundred sixty acres of contiguous land and improvements
thereon, which shall not be reduced without the owner's consent by
reason of subsequent inclusion in a municipality; or if located within
a municipality, to the extent of one-half acre of contiguous land,
upon which the exemption shall be limited to the residence of the
owner or his family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs
of the owner.
(c) The homestead shall not be subject to devise if the owner
is survived by spouse or minor child (Emphasis supplied.)
Section 731.27, F. S., 1969, provides:
731.27 Descent of homesteads.-The homestead shall descend as
other property; provided, however, that if the decedent is survived
by a widow and lineal descendants, the widow shall take a life estate
in the homestead, with vested remainder to the lineal descendants in
being at the time of the death of the decedent.
The related provisions of Art. VII, 6, State Const., governing tax exemp-
tions for homesteads now state that the homestead:
S. real estate may be held by legal or equitable title, by the
entireties, jointly, in common, as a condominium, or indirectly by
stock ownership or membership representing the owner's or member's
proprietary interest in a corporation owning a fee or a leasehold initi-
ally in excess of ninety-eight years.
Statutory implementation of the more general language of the former con-
stitution as to homestead tax exemption was sustained in the case of Ammer-
man v. Markham, et. al., Fla. 1969, 222 So.2d 423. That statute now appears
as 196.031 and 196.041, F. S., 1969, providing, in part, as follows:
S. a tenant-stockholder or member of a cooperative apartment
corporation who is entitled solely by reason of his ownership of stock
or membership in the corporation to occupy for dwelling purposes
an apartment in a building owned by the corporation, for the purpose
of homestead exemption from ad valorem taxes and for no other pur-
pose is deemed to have beneficial title in equity to said apartment
and a proportionate share of the land on which the building is situ-
ated. (Emphasis supplied.)
It is clear from the Ammerman opinion that there exists a broad legislative
authority to define the constitutional homestead terms. I would accordingly
accept the emphasized language of 196.041, supra, as expressing a legislative
intent that such property should not be regarded as real property for any pur-
pose except for application of homestead tax exemption. In the absence of
other guidance, I would therefore conclude that such property would not be
within the provisions of Art. X, 4(c), State Const., restricting the devise of
"homesteads." Preceding subsections of 4 define homestead in terms of the
ownership of "property" to the extent of defined acreage of "land and im-
provements thereon." This terminology considered in conjunction with 196.041,





ANNUAL REPORT OF THE ATTORNEY GENERAL 29


supra, indicates that express legislative definition should be required in order
to bring the subject property within the terms of 4(c).
Article X, 4, State Const., is certainly to be applied liberally, and it has
been construed to protect from forced sale even a possessory interest in land.
Hill v. First National Bank, Fla. 1917, 75 So. 614. The provision also protects
from forced sale personal property to the value specified. See also 222.05,
F. S., exempting from levy and sale, as homestead, a dwelling house on leased
land. The constitutional restraint on devise, however, has been held to be
limited to real property as opposed to homestead personalty. Hinson v. Booth,
Fla. 1897, 22 So. 687.
On consideration of the language and principles above recited, I conclude
that shares of stock in a cooperative apartment corporation under the circum-
stances described by you would be subject to devise or devolution under gen-
eral law and would not be within the provision of Art. X, 4, State Const.,
restricting devise of a homestead under stated conditions.

071-20-February 12, 1971
TAXATION
RAILROAD ASSESSMENT-DEPARTMENT OF REVENUE
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Does the Department of Revenue have the statutory authority to
adopt rules and regulations which require that the assessment of
operating property of railroad, telegraph, express, freight line and
equipment companies be done annually by the Department of
Revenue?
SUMMARY:
The Department of Revenue has statutory authority to adopt
rules and regulations requiring annual assessment of railroad and
similar utilities by the Department of Revenue.
Upon consideration of the legislative acts hereinafter detailed, the question
presented should, in my opinion, be answered in the affirmative.
In the 1969 Session of the Florida Legislature considerable attention was
given to the relocation of the Railroad Assessment Board under the general
governmental reorganization package. The journal records of the debates in the
House and Senate on reorganization reflect no consideration of the possibility
of abolishing central assessment procedures then expressly provided in Ch. 195,
F. S. The only debates involved: (1) Whether or not the Railroad Assessment
Board would be abolished; and (2) If it were abolished, where the necessary
function would be located.
As a result, the 1969 Session passed Ch. 69-106, Laws of Florida, which
under 20.21(7), F. S., transferred the Railroad Assessment Board's powers,
duties and functions to the Department of Revenue by a type 3 transfer. At
the same time by Ch. 69-55, Laws of Florida, the pertinent portions of Ch.
195, F. S., 1967, (195.001 and 195.01) became 193.521 and 193.531, F. S.,
1969.
Thereafter the 1970 Session of the Florida Legislature enacted Ch. 70-243,
Laws of Florida, which had the following title:
AN ACT relating to Ad Valorem Taxation; amending Chapters 192,
193, 194, 195 and 199, Florida Statutes; defining common terms relat-




30 ANNUAL REPORT OF THE ATTORNEY GENERAL



ing to ad valorem taxation; simplifying the procedure for the prep-
aration of tax rolls and county tax assessors; reorganizing and con-
solidating statutory language relating to the assessment process and
procedural aspects of finalizing the tax rolls; repealing certain sec-
tions which are redundant, obsolete and unnecessary; amending
197.065 to require notice of all taxes of all types due on property;
providing an effective date. (Emphasis supplied.)
This act, under 49, repealed 193.521 and 193.531, F. S. Under 11
and 14 of said act the legislature enacted the following sections relating to
railroad property. Sections 193.052(6), and 193.085(4), F. S. (1970 Supp.),
provide:
193.052 Preparation and filing of returns.-
(6) The department shall promulgate the necessary regulations to
insure that all railroad and utility property is properly returned in the
appropriate county.
193.085 Listing all property.-
(4) The department shall promulgate such regulations as are
necessary to insure that all railroad and utility property of all types
is properly listed in the appropriate county.
By these two references, reading 193.052 and 193.085, F. S., in their entirety,
the legislature recognized railroad and utility property as a separate class. The
retention of 197.100 and 197.105, F. S., further support this view, providing
for certification of delinquent railroad taxes by the county tax collector to the
Department of Revenue, and for execution procedures including the disposition
of property bid off for the department "in such manner as may be to
the interest of the state."
The department's general authority was also restated (Ch. 70-243, 35 and
39, Laws of Florida) under what is now 195.002 and 195.042, F. S., (1970
Supp.), covering general supervisory powers of the department and providing
for promulgation of rules for uniform assessment. Section 195.002, F. S. (1970
Supp.), states:
195.002 Supervision by department of revenue.-The department
of revenue shall have general supervision of the assessment and valu-
ation of property so that all property will be placed on the tax rolls
and shall be valued according to its just valuation, as required by
the constitution. It shall also have supervision over tax collection and
all other aspects of the administration of such taxes.
Section 195.042, F. S. (1970 Supp.), provides:
195.042 Rules and regulations.-The department of revenue shall
prescribe reasonable rules and regulations for the assessing and col-
lecting of taxes, and such rules and regulations shall be followed by
the tax assessors, tax collectors, clerks of the circuit court, and boards
of tax adjustment. It is hereby declared to be the legislative intent
that the department is authorized to formulate such rules and regula-
tions so that property taxes can be assessed, collected, and adminis-
tered uniformly, justly, and otherwise in compliance with the require-
ments of the constitution.
At no point was abolition of central assessment discussed and the title to
the 1970 act, Ch. 70-243, Laws of Florida, indicates that the statutes repealed
are "redundant, obsolete and unnecessary" and gives no indication of an intent
to change a longstanding method of assessment which has been recently again
approved by the courts. Dickinson v. S.C.L. Railroad, Fla. 1 D.C.A. 1970, 231
So.2d 28; F.E.C. Ry. Co. v. Green, Fla. 1 D.C.A. 1965, 178 So.2d 355.




ANNUAL REPORT OF THE ATTORNEY GENERAL 31


The proposed rules, 12B-1.02, provide that the department shall assess or
value all operating property within the state owned or used by railroad and
specified utility companies. In addition to a detailed "Report of Operating
Property" (including an informational inventory of nonoperating properties), the
companies are required, Rule 12B-1.03, to furnish a list of real estate in this
state owned by them, and not included in such report, to the department and
to the county assessor where such property is located. They are also required
"to return annually, at the request of the department, after the assessment has
been determined, the total length and value" of track and other facilities and
lots not leased.
Under 193.052(6) and 193.085(4), supra, the department is vested with
regulatory authority to require that all railroad and utility properties are
"properly returned in the appropriate county" and "properly listed in the ap-
propriate county." This language, considered in the light of its legislative
framework and history and applicable principles of construction (73 C.J.S.,
Public Admin. Bodies, 103), appears to me to permit the department to pro-
mulgate the proposed regulations requiring the valuation of operating properties
to be made by the department based upon its determination that the appropri-
ate county for the return of such properties is Leon County and to the De-
partment of Revenue therein. Other proposed rules as to contents of reports
and as to listing of other properties also appear to be designed to carry out
the statutory mandate. The delinquency provisions above noted also indicate
that the function of assessment and collection of taxes, against such properties,
following valuation of the properties by the department, remains with the ap-
propriate county officers to be followed by certification of delinquencies, if
any, to the department.
I believe, accordingly, that the Department of Revenue has the statutory
authority to adopt rules and regulations which require that the assessment of
operating property of railroad, telegraph, express, freight line and equipment
companies be done annually by the Department of Revenue. Legislative clari-
fication of the department's specific authority in this area would, however,
appear to be desirable.

071-21-February 12, 1971
EVIDENCE
DIVISION OF DRIVER LICENSES-CERTIFICATE
To: Joseph Durant, Assistant State Attorney, Miami
Prepared by: Nelson E. Bailey, Assistant Attorney General
STATEMENT OF FACTS:
The Governmental Reorganization Act became effective July 1, 1969. Sec-
tion 20.24, F. S., created the Department of Highway Safety and Motor Vehi-
cles, one of the subdivisions of which is the Division of Driver Licenses. The
functions of the latter division were formerly carried in this jurisdiction by the
driver's license division of the county judge's court which was automatically
phased out by the reorganization on July 1, 1969.
We have numerous cases pending in this jurisdiction for violations of
322.212, F. S., (Unauthorized use or possession of driver's licenses) which
occurred prior to July 1, 1969 and which require competent evidence at time
of trial to prove the licenses involved were stolen from the driver's license
division of our county judge's court. These records are now in Tallahassee.
QUESTION:
Does a certificate issued by the Division of Driver Licenses, De-





32 ANNUAL REPORT OF THE ATTORNEY GENERAL



apartment of Highway Safety and Motor Vehicles specifically setting
forth the official record of the stolen license involved, meet the rules
and constitute competent evidence for use in these cases at time of
trial?
SUMMARY:
Division of Driver Licenses by its certificate may set out the of-
ficial record of stolen driver licenses maintained by its predecessor
agency and such certificate is admissible evidence on the subject.
Many official records properly are admissible without the aid of any
statute. The Florida rule admits in evidence certified copies of official registers
or records kept by persons in public office in which they are required, either
by statute or by the nature of their office, to write down or otherwise physi-
cally record particular acts, events, or conditions occurring in the course of
their public duties or under their personal observation. See: 92.18, F. S., 1969;
92.35, F. S., 1969; Florida Cent. & P.R. Co. v. Seymour, Fla. 1902, 33 So.
424, 426, 427; Ex parte Pitts, Fla. 1895, 17 So. 76, 78; Bell v. Kendrick, Fla.
1889, 6 So. 868, 869; Corbett v. Berg Fla. 3 D.C.A. 1963, 152 So.2d 196, 197.
Such records are made under circumstances which afford a sufficient guarantee
of trustworthiness to render them admissible in evidence as a recognized ex-
ception to the hearsay rule.
The duty element upon the part of the one keeping public records in the
course of public employment or public service serves as the determinative
factor. Thus in the present inquiry the question revolves around the duty of
the Division of Driver Licenses, Department of Highway Safety and Motor
Vehicles, to keep particular records sought to be used as evidence. If the facts
set forth in the certified records are facts which the Division of Driver Li-
censes is required by statute or function to make and maintain, then certified
copies of the records clearly are properly admissible in evidence.
An issue is raised, however, as to whether a certificate by the Division
of Driver Licenses, that division having not been in existence at the time of
the actual recording of the facts involved, renders the certified copies inadmis-
sible in evidence as an exception to the hearsay rule.
The duty to maintain the records sought to be introduced into evidence
logically appears again to be the determinative factor. If there was a duty
upon the one keeping public records at the time of the event to record the
facts now sought to be introduced by certified copy of those records, and
the officer now certifying the records is presently charged with the duty of
maintaining those prior recordings, the chain of duties from prior recording
to present maintenance would appear to render unimpaired the trustworthiness
of the records. A continuous chain of duties, even though involving successive
officers or agencies, should have no adverse effect on the admissibility of pub-
lic records in evidence as an exception to the hearsay rule.
Assuming that this chain of successive duties exists in the present situation,
then the answer to your question is: Yes, a certificate issued by the Division
of Driver Licenses, Department of Highway Safety and Motor Vehicles, specif-
ically setting forth the official record of the stolen license involved, meets the
rules and constitutes competent evidence for use in your cases at time of trial.





ANNUAL REPORT OF THE ATTORNEY GENERAL 33


071-22-February 12, 1971
PAROLE
ELIGIBILITY
To: J. Hopps Barker, Chairman, Probation and Parole Commission
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
Is a person convicted of a felony and sentenced to serve a term
less than twelve months who has served one third of his term, and
whose prison record is good, eligible for parole consideration?
SUMMARY:
To be eligible for parole, a prisoner must be serving a term of
at least 12 months in jail or prison.
Section 947.16(1), F. S., 1969, provides the standard by which a prisoner's
eligibility for parole is to be tested. It reads as follows:
947.16 Eligibility for parole; power of commission.-
(1) Every person who has been, or who may hereafter be con-
victed of a felony or one who has been convicted of one or more
misdemeanors and whose sentence or cumulative sentences total
twelve months or more and confined in a jail or prison in this state
in execution of the judgment of the court thereof and who has served
not less than six months of such term, and in cases where the term
is eighteen months or less, has served not less than one-third of his
term, and whose prison record is good, shall be eligible for consid-
eration by the commission for parole. (Emphasis supplied.)
It is my opinion that said statute requires, as a prerequisite to eligibility
for parole, that a prisoner have a sentence or sentences totaling twelve months
or more. Under any other construction, every person serving a misdemeanor
sentence in the county jail for thirty days, or any other term less than one
year, would be eligible for parole and I do not think that such was the legis-
lative intent.
I am aware that said statute contains the words "and in cases where the
term is eighteen months or less, has served not less than one-third of his term,"
however, in the light of the statute's unequivocal requirement that a prisoner
have a sentence or sentences totaling twelve months or more in order to be
eligible for parole, I do not consider that said last-quoted words were intended
to lower that figure to less than twelve months. Rather, I consider said last-
quoted words in the light of said minimum requirement of a sentence or sen-
tences totaling twelve months or more, and, when so considered, I think that
said last-quoted words refer to a sentence or sentences totaling at least twelve
months but not more than eighteen months. In conclusion, it is my opinion
that your question is properly answered in the negative.


071-23-February 12, 1971
MUNICIPAL CHARTER
REFERENDUM PETITIONS-CLASSIFICATION OF PIER FEE
To: Charles K. Allan, City Attorney, Naples
Prepared by: Winifred L. Wentworth, Assistant Attorney General






34 ANNUAL REPORT OF THE ATTORNEY GENERAL



STATEMENT OF FACT:
A municipal charter provision for referendum petitions, states as follows:
"provided that such power shall not extend to the budget or capital program
or any ordinance relating to the appropriation of money, levy of taxes or sal-
aries of the city officers or employees." (Emphasis supplied.) You inquire with
reference to a fee imposed under your City Ordinance No. 1597, stating in
part: "That the following fee shall be charged for use of the Naples Fishing
Pier: $.25 per person daily, tax included, for fishing or sight-seeing."
QUESTION:
May the charge as established by the above ordinance be con-
strued as a tax, thereby excepting the ordinance from referendum
proceedings?
SUMMARY:
A fee of 25 cents for fishing or sightseeing from the municipal
fishing pier is not a tax and therefore is not immune from refer-
endum proceedings.
My examination of the provisions of the charter and ordinance recited in
your letter, together with applicable law, indicates that the question should be
answered in the negative on the authority of the principles explained in Masters
v. Duval County, Fla. 1934, 154 So. 172, 174. In relation to an analogous situ-
ation, the opinion states that: "Tolls collected by statutory authority for passage
on foot or in vehicles over a bridge constructed to afford a passageway over
a river are not taxes. Bridge tolls are collected from everyone who uses
the bridge as a passageway whether a resident or a nonresident of the taxing
unit, state, county, or municipality, wherein the bridge is located, while taxes
may be levied upon residents or upon property having its situs in the taxing
unit, state, county or municipality ...."


071-24-February 12, 1971
COURTS
TRANSFER OF TRAFFIC VIOLATIONS TO COURT PROVIDING
TRIAL BY JURY-EFFECT OF ERRONEOUS TRANSFER
To: John G. Ferris, Judge, Court of Record, Fort Lauderdale
Prepared by: Wallace E. Allbritton, Assistant Attorney General
QUESTIONS:
1. Are all traffic charges which occur within a municipality
transferable to a state court under the provisions of 932.61, F. S.,
and if not, which specific charges are transferable?
2. In the event a charge has been erroneously transferred from
a city court to a state court, may such cases be transferred back to
the city court without causing a rearrest of the defendant and a com-
plete new commencement of the proceeding in the city court?
SUMMARY:
Traffic charges which are not violations of state law are not
transferable to a state court for jury trial and any charge erroneously
transferred is a nullity and would remain in the municipal court.
Section 932.61, F. S. (1970 Supp.), provides:




ANNUAL REPORT OF THE ATTORNEY GENERAL 35



A person charged in a court with a violation of a county or
municipal ordinance for which no jury trial is provided may, when
the violation of a county or municipal ordinance is also a violation
of a state law, cause the transfer of the violation to the appro-
priate court in which a trial by jury is provided in the following
manner ....
In view of the above-quoted statutory authorization, the question now be-
comes, when does the violation of a county or municipal ordinance also con-
stitute a violation of state law?
Section 317.041, F. S., 1969, states that:
The provisions of this chapter relating to the operation of vehi-
cles refer to the operation of vehicles upon the state-maintained high-
way system and county-maintained highway system throughout this
state including state-maintained municipal connecting link roads .
except that the provisions of 317.071-317.211 shall apply upon
highways and elsewhere throughout the state. (Emphasis supplied.)
The provisions contained in 317.071-317.211, F. S., which the legislature
says shall apply on highways and elsewhere throughout the state, pertain to
(1) accidents; (2) police officers' authority to arrest at scene of accident; (3)
driving while under the influence of alcoholic beverages, narcotic drugs, barbi-
turates or other stimulants; and (4) reckless driving. Absent from the sixteen
sections covered in 317.071-317.211 is any reference to highways, streets, or
roads. Thus, it is obvious that it was the intent of the legislature that those
provisions contained in 317.071-317.211 shall be applicable any place in
Florida. Accordingly, it is my opinion that only those violations denounced by
317.071-317.211 are transferable to the appropriate state court providing for
a jury trial pursuant to 932.61, F. S., because the violation of any other sec-
tion of Ch. 317, F. S., if committed within a municipality, would not be a
violation of a state law. See AGO 054-141, June 10, 1954, Biennial Report of
the Attorney General, 1953-1954, p. 387, and AGO 066-59. See also Strayer v.
Johnston, Fla.1945, 21 So.2d 593; and Hobby v. Southern Bell Telephone and
Telegraph Co., Fla. 4 D.C.A. 1969, 217 So.2d 123.
The answer to question 2 must be in the affirmative. If a charge has been
erroneously transferred from a city court to a state court, then the transfer
is a nullity. The only authority for such a transfer is found in 932.61, F. S.,
and if the charge is determined not to be a violation of state law, then the
transfer must be a nullity because there is no authority for same de hors the
statute. Thus, the charge would remain in the same posture in the municipal
court that it was before such transfer was attempted.

071-25-February 12, 1971
PUBLIC OFFICERS
REPORT OF CONTRIBUTIONS-111.011, F. S.
To: Burton B. Loebl, City Attorney, North Miami Beach
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
In addition to gifts and donations, what payments of money to
an elected public officer should be reported by him as a "contri-
bution" as required by 111.01, F. S.?
SUMMARY:
Only contributions to a public officer which are gratuities need




36 ANNUAL REPORT OF THE ATTORNEY GENERAL


be reported, not outside income, repayment of a loan or similar pri-
vate income.
Section 111.011, F. S. (1970 Supp.), requires all elected public officers in
this state, be they national, state, county or municipal, to file prior to Feb-
ruary 15 of each year a sworn statement of the contributions received by them
during the preceding calendar year. (It might be noted, parenthetically, that
the statute requires also that a statement be filed for each half of the calendar
year, and that it became effective on July 1, 1970.) The statute defines contri-
butions to mean "any gift, donation or payment of money, the value of which
is in excess of twenty-five dollars to any elected public officer or to any other
person on his behalf." The report is required to list not only all contributions
received during the year but also all "expenditures from or disposition made
of such contributions with the names and addresses of persons making
such contributions or receiving payment or distribution from such contributions
and the dates thereof." Gifts from relatives for the personal use of the officer
are excepted from the statutory requirement.
I have the view that such items as compensation from outside employ-
ment, a repayment of a loan, interest on investments, stock dividends-in short,
any payment of money that represents a valid quid pro quo-should not be
deemed to be a contribution within the intendment of the statute. The word
"contribution" carries with it the implication of a gratuity; and the two other
words used in the statutory definition-gifts and donations-have the same
connotation. Thus, under the rule of statutory construction known as noscitur
a sociis-that general and specific words are associated with and take color
from each other, restricting general words to the sense analogous to the less
general (see Dunham v. State, Fla. 1939, 192 So. 325)-it is logical to infer
that the legislature intended that only those payments of money that are, in
fact, gratuitous in nature are to be reported as "contributions." This conclusion
is reinforced by the fact that the statute expressly provides that the report need
not include campaign contributions required by Ch. 99, F. S., to be made by
candidates for public office. It is noteworthy, also, that several bills that would
have required financial disclosure of the income and financial status of public
officials were introduced in the 1970 Session of the Legislature and were not
passed.
Finally-and, I think, conclusively-the legislature could not have intended
"payments of money" to include any but gratuitous payments for this reason:
The statute in question expressly provides that it shall be "cumulative to other
provisions of part III of chapter 112." The Standards of Conduct Law (
112.311-112.318, F. S.) does not prohibit outside business activities or employ-
ment on the part of public officials so long as they do not constitute conflicts
of interest or interfere with the full and faithful discharge of public duties by
the officials; and it is not uncommon for members of local governing bodies,
as well as legislators themselves, to have outside business activities or employ-
ment to supplement the income from their official positions.
As noted above, 111.011, F. S., requires the report to include all expendi-
tures from or disposition made of such contributions with the names and
addresses of persons making such contributions or receiving payment or distri-
bution from such contributions and the dates thereof. It cannot reasonably be
concluded that the legislature intended that a public official who owns and
operates a. business establishment should list the name and address of every
single customer who makes a "payment of money" to him for a purchase during
the year, as well as the names and addresses of the hundreds of persons
to whom his personal income was routinely paid out during the year for living
expenses. If such an onerous duty should ever be imposed upon a public of-
ficial by the legislature, it should certainly be expressed in clear and unambigu-
ous terms and not imposed by way of inference.




ANNUAL REPORT OF THE ATTORNEY GENERAL 37


In sum, I have the view that a "payment of money" within the meaning
of 111.011, F. S., is one that is a gratuity of the same nature as a campaign
contribution, and that it does not include compensation from outside employ-
ment or other personal income from business activities or investments and the
like.

071-26-February 12, 1971
COUNTIES
PAYMENT FOR SECRETARIAL SERVICES IN PRELIMINARY AND
GRAND JURY HEARINGS
To: Bruce Collins, Clerk, Circuit Court, Panama City
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Is the county commission obligated to pay for secretarial ser-
vices ordered by the state attorney or public defender in preliminary
hearings?
2. Is the county commission obligated to pay for secretarial ser-
vices ordered by the state attorney or grand jury in grand jury in-
vestigations?
SUMMARY:
A county is not required to pay for secretarial services to the
state attorney or public defender in preliminary hearings nor by the
state attorney or grand jury in their investigations.
AS TO QUESTION 1:
Under former 9 of Art. XVI, State Const., 1885, and present 939.15, F.
S., the county is required to pay the legal expenses and fees of a criminal
prosecution if the defendant is insolvent or is discharged. In AGO 058-313, one
of my predecessors in office ruled unequivocally that the county's obligation
begins only after an indictment has been found or an information has been
filed against an accused person and that it is the duty of the state to pay
the costs of criminal law enforcement "up to the finding and filing of an in-
formation or indictment charging the commission of a crime."
A preliminary hearing is a part of the investigative process prior to the
filing of an indictment or information against a suspected criminal. See Mont-
gomery v. State, Fla.1965, 176 So.2d 331, which stated that a preliminary hear-
ing "serves only to determine whether or not probable cause exists to hold
a person for trial" and that it is not an "essential step" in a criminal proceed-
ing. Accord: Attorney General Opinion 068-18, holding that a defendant is not
entitled to a preliminary hearing after an information or an indictment has
been filed against him. Since a preliminary hearing is not a part of the actual
trial of a person charged with a criminal offense by information or indictment,
it must be concluded that the county is not liable for the legal costs and ex-
penses thereof. Accordingly, your first question is answered in the negative.
AS TO QUESTION 2:
I am not clear as to the nature of the "secretarial services" referred to
in your letter. It appears to be settled, however, that a grand jury proceeding
or investigation is not a criminal prosecution within the intendment of the con-
stitutional and statutory provisions, supra, obligating the county for the pay-
ment of the costs thereof. See State v. Croom, Fla.1904, 37 So. 303, holding





38 ANNUAL REPORT OF THE ATTORNEY GENERAL


that the compensation of grand jurors and witnesses before the grand jury is
payable by the state under Ch. 4121, Laws of Florida, 1893 (now appearing
as 40.29-40.34, F. S.), and not by the county. And cf. Crandon v. Nelson-
Bullock Co., Fla.1933, 147 So. 582, holding that a county has no authority to
employ and pay an auditor to examine the affairs of private banking corpora-
tions in order to assist the county prosecuting attorney in a criminal investiga-
tion of such institutions.
I have not overlooked the opinion of one of my predecessors in office
in AGO 058-50, holding that the court reporter may be compensated by the
county for a transcript of record of a grand jury proceeding ordered by the
circuit judge for the use of an "authorized state official." The circumstances
in which the record of grand jury proceedings may be released are strictly
limited by statute. Section 905.17, F. S., as amended by Ch. 70-339, Laws of
Florida, authorizes the release of such record "only on request of a grand jury
for use by the grand jury or on order of the court pursuant to 905.27."
Under 905.27, F. S., the court may order the disclosure of testimony or
other evidence received by the grand jury for the purpose of (1) ascertaining
whether it is consistent with other testimony given by the witness before the
court, or (2) whether the witness is guilty of perjury, or (3) for "furthering
justice." Thus, in the first two instances, the transcript would be made for use
in a criminal trial and, as such, would be a compensable item of "court costs"
within the intendment of the constitutional and statutory provisions referred to
above. If released to a prosecuting attorney or other state official for the pur-
pose of "furthering justice" but not in connection with the actual trial of a
criminal cause, the expense could not be imposed upon the county unless au-
thorized by a special act applicable in such county.

071-27-February 15, 1971
JUDGES
DISQUALIFICATION-CRIMINAL CASES-WAIVER
To: Harry Lee Coe, III, Judge, Criminal Court of Record, Tampa
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
May a judge preside over and dispose of all matters in a criminal
case that was initiated and processed by the county solicitor, when
said judge was the chief assistant county solicitor, if the defendant
in said case knowingly, intelligently, and voluntarily waives his right
to have another judge preside over his case, and said waiver is made
after and upon thorough advice of his attorney and of the said judge
in open court?
SUMMARY:
A judge's previous connection with a criminal case as counsel for
one of the parties does not necessarily disqualify him as a judge, and
the accused may expressly waive any right to disqualify.
I do not find any statute making the judge's previous connection with a
case as counsel for one of the parties a ground for disqualifying him. In Dick-
inson v. Raichl, Fla.1935, 163 So. 217, it appeared that a judgment was entered
by Circuit Judge O. L. Dayton in a law action in which no suggestion of
disqualification was filed. Later, the defendants in the law action collaterally
assailed the judgment on the ground, among others, that the judgment was
void because, prior to Judge Dayton's elevation to the bench, he had repre-





ANNUAL REPORT OF THE ATTORNEY GENERAL 39


sented the defendants as their attorney in the transaction out of which the con-
troversy giving rise to the law action arose. In said case, the Supreme Court
of Florida took note of the fact that no statute dealt with this type of disquali-
fication and observed that if Judge Dayton was disqualified, his disqualifica-
tion was a common law one rather than a statutory one. The court went on
to say:
Under the common law, the acts of a disqualified judge were sub-
ject to vacation or reversal, were generally held to be voidable rather
than void, and were not subject to collateral attack. It was also re-
quired that they be moved against promptly, otherwise the right
would be lost. 33 C.J. 180, p. 1113; 33 C.J. 201, p. 1022. This
being a common-law disqualification, that rule must govern.
(Emphasis supplied.)
However, it might be thought that a defendant has a constitutional right
not to be tried before a judge who is disqualified because of his previous
connection with the case as counsel. If he has such a constitutional right, it
may be waived. In Yakus v. United States, 321 U.S. 414, 88 L.Ed. 834, 859,
the United States Supreme Court said:
No procedural principle is more familiar to this Court than that a
constitutional right may be forfeited in criminal as well as civil cases,
by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it .... (Emphasis supplied.)
See also Johnson v. Zerbst, 304 U.S. 459, 82 L.Ed. 1461, where the United
States Supreme Court recognized that a defendant could waive his Sixth
Amendment right to the assistance of counsel in a federal court.
In the light of these decisions of the United States Supreme Court, I am
of the opinion that, even if a defendant in a criminal case in your court has
a constitutional right to disqualify you from presiding, he may nevertheless ex-
pressly waive that right. In order to be a binding waiver, there must be com-
pliance with the following standard set forth in Fay v. Noia, 372 U.S. 391,
9 L.Ed.2d 837, 869: ". The classic definition of waiver enunciated in Johnson
v. Zerbst, 304 US 458, 464, 82 L ed 1461, 58 S Ct 1019, 146 ALR 357 'an
intentional relinquishment or abandonment of a known right or privilege' fur-
nishes the controlling standard .. ."


071-28-February 18, 1971
(See also 071-160 and 071-200)
EXECUTIVE DEPARTMENT
GOVERNOR-"CONTINGENT-DISCRETIONARY"
APPROPRIATION-EXPENDITURE OF FUNDS
To: Reubin O'D. Askew, Governor, Tallahassee
Prepared by: Louis C. Deal, Assistant Attorney General
QUESTION:
May the following expenses be legally paid from the $30,000 con-
tingent-discretionary appropriation to the office of the governor set
forth as 1, item 358, Ch. 70-95, Laws of Florida, the General Ap-
propriations Law for the fiscal year July 1, 1970 through June 30,
1971:
1. Congratulatory telegrams;
2. Flowers or telegraphic condolences;
3. Presentment of plaques for outstanding service;






40 ANNUAL REPORT OF THE ATTORNEY GENERAL


4. Entertainment for visiting dignitaries;
5. Refreshments such as coffee and doughnuts or pastries served
to guests in the office of the governor;
6. Membership dues in the Democratic Governors' Conference;
7. Membership dues in the National and Southern Governors'
Conference;
8. Travel expense and per diem for the wife of the governor;
and
9. Subsistence allowances for security agents and aides of the
governor in excess of $17.00 per diem when traveling with the gov-
ernor and "having to stay in hotels charging high rates"?
SUMMARY:
A contingent-discretionary appropriation to the governor may not
be spent except as specially authorized by the legislature.
Article VII, 1, State Const., requires that no tax shall be levied except
in pursuance of law and commands the legislature to provide by law for rais-
ing sufficient revenue to defray the expenses of the state for each fiscal period.
Impliedly, these constitutional provisions limit the imposition of taxes and the
expenditure of the revenues therefrom to public purposes. City of Daytona
Beach v. King, Fla. 1938, 181 So. 1; 84 C.J.S., Taxation, 14, p. 64. These
purposes generally are for the support of government or recognized objects
of government, or for the direct promotion of the welfare of the body politic.
84 C.J.S., Taxation, 15, p. 65. The power of the legislature to appropriate
public funds is correlative with its power to tax, these powers being coexistent
and resting on the same principles. 81 C.J.S., States, 133, p. 1147; Amos v.
Mathews, Fla. 1930, 126 So. 308. Other than moneys that may be lawfully ap-
propriated to and in aid of local governments under Art. VII, 8, State Const.,
the purpose of all appropriations and expenditures of state funds must be for
and pertain to a state purpose only, and such state purposes must be per-
formed by the state in the exercise of its governmental functions. Amos. v.
Mathews, supra; Prescott v. Board of Public Instruction of Hardee County, Fla.
1947, 32 So.2d 731; City of Lynn Haven v. Bay County, Fla. 1950, 47 So.2d
894; Carlton v. Mathews, Fla. 1931, 137 So. 815; 81 C.J.S., States, 133, p. 1147
et seq.
Article VII, 1, State Const., further prohibits all expenditures except those
made in pursuance of appropriations made by law, the legislative power to
appropriate state funds for state purposes being exercised only through duly
enacted statutes. Attorney General Opinion 057-150. The object of these consti-
tutional provisions is to prevent the expenditure of public funds without the
consent of the people as expressed by their representatives in legislative acts,
and they secure for the legislature the exclusive power of determining how,
when, and for what purpose, the public moneys should be applied in con-
ducting government. Lainhart v. Catts, Fla. 1917, 75 So. 47; State v. Green,
Fla. 1928, 116 So. 66; State v. Lee, Fla. 1935, 163 So. 859. Such appropriations
of state moneys can be used only to pay claims against the state duly author-
ized by the legislature, and audited and approved according to law. State v.
Green, supra; Ch. 216, F. S. Such an appropriation consists of the setting apart
of money out of public revenues for a specific use or purpose, and in such
manner that the executive officers of government will have the authority to
withdraw and use such money for such specific purpose or object, and for
no other. State v. Lee, supra.
Before an expenditure may be made by any executive officer of the gov-
ernment from state funds, there must be a specific appropriation authorizing
the expenditure in question. Attorney General Opinion 068-12; Florida Develop-
ment Commission v. Dickinson, Fla. 1 D.C.A. 1969, 229 So.2d 6, cert. den., Fla.





ANNUAL REPORT OF THE ATTORNEY GENERAL 41


1970, 237 So.2d 530; Ch. 216, F. S. The legislative and operating budgets of
the executive agencies and officers must be established and adopted in con-
formity with the applicable budgetary and fiscal laws of the state and may
provide only for expenditures which are authorized by statute. Florida Devel-
opment Commission v. Dickinson, supra. Vouchers for the payment of state
funds submitted or to be submitted to the paying agency of government should
contain sufficient information for such agency, as the preauditor, to determine
from the face of such voucher whether the requested payment is authorized
by law. Attorney General Opinions 068-12, 067-71; Florida Development Com-
mission v. Dickinson, supra. Pursuant to Art. IV, 4, State Const., the comp-
troller is the preauditor for the state government and is constitutionally com-
manded and required to settle and approve all accounts against the state.
The power to appropriate state funds for lawful state purposes, being ex-
clusively legislative, may not be delegated to the executive branch of govern-
ment. 16 C.J.S., Constitutional Law, 133, p. 555; 81 C.J.S., States, 161, p.
1203; also see Conner v. Joe Hatton, Inc., Fla. 1967, 203 So.2d 154, holding
that correlative power to tax may not be delegated to executive officers. Ar-
ticle II, 3, State Const., forbids any member of the executive branch of state
government to exercise powers appertaining to the legislative branch. The ex-
ecutive branch of government manages and spends only those moneys appro-
priated to it by law, and then only for the purposes or objects specified in
the appropriation. If moneys should be appropriated to an office for purposes
or objects not within the statutory authority of the office, or for purposes other
than public or state, or to defray the expenses of duties and functions not
expressly or impliedly authorized by constitutional or statutory law, such appro-
priated money may not lawfully be expended. 81 C.J.S., States, 167, p. 1227;
Florida Development Commission v. Dickinson, supra.
Although the legislature may appropriate a sum to an executive agency
or to a specified contingency or emergency or deficiency fund, and authorize
an executive agency to withhold the release of, reduce, or transfer from one
fund to another, parts thereof, and to allocate or expend such appropriation
for specified purposes in accordance with standards or conditions prescribed
by legislative enactments, it cannot constitutionally empower an executive agen-
cy or officer to exercise an uncontrolled discretion in allocating or expending
public funds. 16 C.J.S., Constitutional Law, 138(18) pp. 615-617; 81 C.J.S.,
States, 161, p. 1204; State v. Lee, Fla. 1946, 27 So.2d 84; Opinion of the Jus-
tices Ala. 1943, 13 So.2d 674; Sparkman v. County Budget Commission, Fla.
1931, 137 So. 809; State v. Green, supra.
The appropriation made to the office of the governor from the general
revenue fund by 1, item 358, Ch. 70-95, Laws of Florida (General Appropria-
tions Law), is a lump-sum appropriation for the designated purpose of: "contin-
gent-discretionary." No standards, qualifications or conditions, and no specific
uses or objects or purposes are prescribed in the item. Insofar as 25, Ch.
70-95, Laws of Florida, may relate to item 358, none of the funds appropriated
by 1, item 358 may be used for a Washington office as requested by your
predecessor in office and other agencies at other times. Section 35, Ch. 70-
95, Laws of Florida, further provides that any appropriation made in 1, item
358 to the office of the governor that may be expended in an amount in excess
of $2,500 shall be expended only upon itemized voucher and the personal certi-
fication of Your Excellency that no funds have been or will be received other
than from appropriations in said Ch. 70-95 for the period of the appropriation
for carrying out the duties of the office, unless such funds are deposited in
the treasury of the State of Florida, and thus subjected to preaudit and post-
audit. Other than these limitations, the use and expenditure of the money ap-
propriated by 1, item 358, Ch. 70-95, Laws of Florida, would ostensibly lie
within the uncontrolled discretion of the executive and might be utilized for
a public or private purpose, or for a state or local purpose, or for a purpose




42 ANNUAL REPORT OF THE ATTORNEY GENERAL



and object authorized or unauthorized by law. As hereinabove noted, the legis-
lature may not constitutionally abdicate its power and responsibility to appro-
priate money for specific and lawful state purposes, nor permit an executive
officer to determine how, when, and for what purpose, the public revenues
shall be applied and expended.
In order to construe this particular appropriation in such manner as to pre-
serve "its constitutionality," as I am obliged to do under our system of govern-
ment and law, I construe the lump-sum "contingent-discretionary" appropriation
made by 1, item 358, Ch. 70-95, Laws of Florida, to the office of the gov-
ernor to be in the nature of, and like and similar to, the "deficiency" and
"emergency" appropriations made to the Department of Administration.by 1,
items 18 and 18a. respectively, Ch. 70-95, and to those "emergency," "defi-
ciency," and "contingency" appropriations described and referred to in 216.231,
F. S. Such lump-sum "contingent-discretionary" appropriation is subject to the
same rules of law and the same constitutional and statutory provisions as gov-
ern "deficiency," "emergency," and "contingency" appropriations contained in
the general appropriations law, and is otherwise controlled and restricted by
our budgetary and fiscal laws. So finding, I am likewise constrained to con-
clude that the funds appropriated in 1, item 358, Ch. 70-95, may be lawfully
used solely to supplement the appropriations made from the general revenue
fund to the general office fund of the governor for those designated activities
and functions prescribed by legislative enactment, whenever the need arises as
a result of an emergency or deficiency, as the case may be. Such supplemental
funds are subject to the limitations and procedures prescribed by the appro-
priations law and the auditing, budgetary and fiscal laws applicable thereto.
In sum, the laws applicable generally to the appropriation, auditing, budgeting,
release and expenditure of state funds for authorized state expenditures and
expenses (as defined in Ch. 216, F. S.) apply to and govern the general office
contingent appropriation to the office of the governor. All expenditures from
this "contingent-discretionary" appropriation should be for specified state pur-
poses in the performance of those duties and functions which the office of
the governor is authorized by law to perform.
Section 216.231, F. S., enacted into law as 31, Ch. 69-106, Laws of Flor-
ida, provides that any appropriation to any state agency, officer or department
of the executive branch of state government classified as "contingency" may
be released only with the approval of the governor and three other members
of the Administration Commission, created as a part of the Department of Ad-
ministration. Section 216.292, F. S., provides that, unless otherwise expressly
provided by law, appropriations shall be. expended only for the purpose for
which appropriated, except that if deemed necessary such moneys may, upon
approval of the Administration Commission, be transferred within the particular
state agency or office affected for the performance of other specifically au-
thorized functions when it is determined to be in the best interest of the state.
Section 216.321, F. S., commands that nothing contained in any legislative
budget or operating budget shall be construed to be an administrative or legislative
construction affirming the existence then of the lawful authority to make an
expenditure or disbursement for any purpose not otherwise authorized by laws
pertaining to the particular agency, office or department or legislative branch
and the general laws relating to the expenditure or disbursement of state funds.
Section 216.192, F. S., provides that the comptroller shall authorize all expendi-
tures to be made from the appropriations on the basis of the annual or quar-
terly release of appropriations made by the Department of Administration to
each state agency or office and in accordance with the operating budget of
such agency or office approved by the Department of Administration, and not
otherwise. This section specifically prohibits the comptroller from approving
any expenditure which is not in accordance with legislative authorization.
Article IV, 1 and 7, State Const., as implemented by Ch. 14, F. S., and





ANNUAL REPORT OF THE ATTORNEY GENERAL 43


other implementing laws, for the purposes of this opinion, when read with Art.
VII, 1, Art. II, 3, and Art. IV, 4, establishes and fixes the authority, the
duties and the functions which the office of the governor is authorized by law
to perform, and for which state purposes and functions state funds may be
expended and disbursed by such office. I can find no express or necessarily
implied authorization for the office of the governor to perform the duties and
functions implicit in the subject matter and expenses enumerated in your in-
quiry, nor any express authority for your office to create or incur a legal obli-
gation against the state for such enumerated expenses, nor to disburse state
moneys for or to pay for such expenditures. Accord: Attorney General Opin-
ions 068-12; 060-193; 058-305; 055-34; 054-93, Apr. 19, 1954, Biennial Report of
the Attorney General, 1953-1954, p. 143; cf. Terrell v. Middleton, Civ. App.
Tex. 1916, 187 S.W. 367, writ of error denied, Tex. 1917, 191 S.W. 1138, re-
hearing denied, Tex. 1917, 193 S.W. 139, holding unlawful the application of
state funds to pay the private expenses of the Governor of the State of Texas.
Under our constitutional scheme of government residual sovereignty is
vested in the legislative branch, 6 Fla. Jur., Constitutional Law, 115, p. 364,
and no officer of state government may exercise any power or perform any
duty or function or expend any state moneys except as consented to by the
people, by and through their elected representatives in the legislative branch,
and then only as expressed in duly enacted legislative statutes or in the consti-
tutional grants and provisions duly adopted by the electorate. The chief execu-
tive officer, unlike the President of the United States of America, has no pre-
rogative powers but possesses only such powers and duties as are vested in
him by constitutional and statutory grant. 81 C.J.S., States, 60, pp. 982-83,
58, pp. 977-78; also see 67 C.J.S., Officers, 103, p. 371. This principle cir-
cumscribes all powers, duties and functions of the office of the chief executive,
as well as all other officers of government, to those expressly or by necessary
implication granted to or imposed upon him by the organic document and the
duly enacted legislative statutes. To perform any function for the state or to
expend any moneys belonging to the state, the officer seeking to perform such
function or to incur such obligation against the moneys of the state must find
and point to a constitutional or statutory provision so authorizing him to do.
Attorney General Opinion 068-12; Florida Development Commission v. Dickin-
son, supra. In connection with the functions and expenditures which are the
subject matter of your inquiry, I am not aware of any such constitutional or
statutory provisions despite diligent search, and I can only presume that none
exist.
Generally, with reference to the validity of the expenditure of state funds,
what is a public purpose is a question for the legislature to decide. 81 C.J.S.,
States, 133, p. 1149. In enacting Ch. 369, F. S., the legislature determined
that the "extension of hospitality or entertainment" by the Commission on Ma-
rine Sciences and Technology, 369.06(13), F. S., would serve a state purpose
toward the accomplishment of its extensive powers and duties specified in
369.06, F. S. The present legislature in adopting Ch. 70-1006, Laws of Florida,
established an inauguration expense fund for the use of the governor-elect in
planning and conducting the inauguration ceremonies, see AGO 070-176, and
appropriated $50,000 to such fund for necessary inauguration expenses. The
state maintains "all structures, furnishings, equipment and grounds of the gov-
ernor's residence," see 272.185, F. S., and appropriates state funds for such
purposes and for the operation thereof, see Ch. 70-95, 1, items 360-363, Laws
of Florida. Illustrative legislation at the county level of government declares
the expenditure of public funds for promotion of the county and for "entertain-
ment of public officials and employees and prominent and distinguished
persons in the interest of promoting good will toward the county [and]
intergovernmental cooperation [with any other governmental agency] with-
out regard to whether [such] expense is incurred within or without the





44 ANNUAL REPORT OF THE ATTORNEY GENERAL



.county" to be "valid county and public purposes." Ch. 69-1475, Laws of
Florida.
I would hope that this opinion might bring to the attention of the legisla-
ture the desirability and need for similar legislation authorizing the governor,
as the highest executive representative of the whole people, to participate in
and perform similar public activities and ceremonial and commemorative func-
tions on behalf of the state, and to expend state funds therefore. No present
or future governor of the state should be expected to personally bear the ex-
penses of such public activities or to become beholden to others who might
donate or contribute funds for his use in defraying the necessary costs thereof.
In the light of the fundamental constitutional and governmental principles
discussed, your questions relative to the above enumerated expenses are an-
swered in the negative.
This opinion may initially appear to be unduly harsh, particularly in view
of its having been written at a time when a young and vigorous chief executive
with a well-merited reputation for integrity and honest dealing assumes this
high post following a resounding mandate from the people of Florida. It is
my belief, however, that Attorney General's Opinions must discount and ignore
such circumstances. Attorney General's Opinions, like court opinions, often ac-
quire a longevity in effect that transcends the term of office of both the pre-
parer and receiver of the opinion. This opinion is prepared far more for a
future governor whose character and integrity are unknown at this writing than
for the present incumbent of the office who requested this opinion. You are
further to be commended for having requested this opinion prior to obligating
any of the funds in the contingent-discretionary appropriation for any of the
items enumerated in your request for the opinion. We are aware of incidents
in the past when prior administrations have not exercised this necessary and
desirable restraint. The opinion has been prepared with no particular governor
in mind and with the hope that our future will encompass a continuing govern-
ment of law rather than one of men.

071-29-February 19, 1971
PUBLIC MEETINGS
GOVERNMENT IN THE SUNSHINE LAW-CITY CIVIL SERVICE
BOARD-DISCIPLINARY MATTERS
To: Robert A. Richmond, Executive Secretary, City Civil Service Board, Miami
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Are the deliberations of the Civil Service Board of the City of
Miami, following a hearing on a disciplinary matter, required to be
conducted in the presence of the public and the press?
SUMMARY:
Deliberations of the Miami Civil Service Board following a hear-
ing on a disciplinary matter must be conducted openly, under the
Government in the Sunshine Law.
The Civil Service Rules and Regulations of the City of Miami provide that
an employee who has been suspended, removed, fined or demoted may appeal
to the civil service board for a hearing as to the reasonableness of the action
in question. The board then conducts a hearing de novo, at which evidence
both for and against the employee may be submitted. The board reports in
writing to the city manager its findings and recommendations; and the city





ANNUAL REPORT OF THE ATTORNEY GENERAL 45


manager then sustains, reverses, or modifies the action of the departmental di-
rector.
There would appear to be little doubt that the Civil Service Board of the
City of Miami is an administrative agency of the city within the purview of
the Sunshine Law, 286.011, F. S. Moreover, the civil service rules and regu-
lations expressly provide that all meetings of the civil service board "shall be
open to the general public" and that representatives of the news media "shall
be permitted to attend and to report to the public through their media all
transactions of the board." Section 6, Rule II, Civil Service Rules and Reg-
ulations.
I have not overlooked the decision of the First District Court of Appeals
cited by you-Canney v. Board of Public Instruction of Alachua County, Fla.
App. 1970, 231 So.2d 34-holding that when a public body has been vested with
quasi-judicial functions, neither the public nor the press has any more right
to enter into the judicial deliberations of such body "than they have to enter
into the conference room of the Supreme Court of Florida when the members
of that Court are deliberating upon a judicial question or into a petit jury room
when those citizens are deliberating upon their verdict." I understand that this
decision is now before the Supreme Court of Florida for review. However,
the Canney decision would not, in any event, be controlling here since it ap-
pears that the Civil Service Board of the City of Miami does not act as a
quasi-judicial body in hearing and determining personnel matters but as an ad-
ministrative agency whose function in this respect is more akin to that of a
special master in chancery-to make findings of fact and recommendations to
the official who must make the final decision in the matter. Accordingly, your
question is answered in the affirmative.


071-30-February 19, 1971
TAXATION
DOCUMENTARY STAMP TAX
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: W. E. Bishop, Jr., Assistant Attorney General
QUESTION:
When a deed conveying an interest in certain lands contains a
schedule therein which reflects the annual payments to be made by
the purchaser thereof on the deferred purchase price, in addition to
a stated down payment, and such schedule specifies separately the
principal amount and the interest amount of each said payment in
accordance with the contractual rate of interest, and the instrument
itself refers to the aggregate of the principal amount total and the
interest amount total as the "total consideration" to be paid for the
interest thus conveyed, is this "total consideration" liable for the docu-
mentary stamp tax under 201.02(1), F. S., or is only the sum total
of the separately stated principal amounts so liable for the tax?
SUMMARY:
In a real estate transaction involving payment of some of the
principal at closing and the remainder over a period of time at stated
interest, only the principal is liable for the state documentary stamp
tax.
The question that you have presented calls for an interpretation of just
what is meant by the use of the word "consideration" in 201.02(1), F. S.,




46 ANNUAL REPORT OF THE ATTORNEY GENERAL


and what constitutes such "consideration." This section is entitled "Tax on
deeds and other instruments relating to lands, etc.," and reads as follows:
On deeds, instruments, or writings, whereby any lands, tene-
ments, or other realty, or any interest therein, shall be granted, as-
signed, transferred, or otherwise conveyed to or vested in, the pur-
chaser, or any other person by his direction, on each one hundred
dollars of the consideration therefore the tax shall be thirty cents.
When the full amount of the consideration for the execution, assign-
ment, transfer, or conveyance is not shown in the face of such deed,
instrument, document, or writing, the tax shall be at the rate of thirty
cents for each one hundred dollars or fractional part thereof of the
consideration therefore.
The Florida Supreme Court has judicially interpreted the word "considera-
tion" as the word is contemplated by 201.02(1), F. S., in De Vore v. Gay,
Fla. 1949, 39 So.2d 796, wherein the court said: "When taxes are to be levied
according to a monetary consideration, the law contemplates that such tax
should be confined to the actual monetary considerations or to considerations
which have a reasonably determinable pecuniary value ... .." See also State ex
rel. Palmer-Florida Corporation v. Green, Fla. 1956, 88 So.2d 493.
From the rationale contained in these two cases, it follows that the word
"consideration" as used and contemplated by 201.02(1), F. S., is to be con-
fined in meaning to the actual monetary consideration which passes from the
purchaser to the vendor for the conveyance, or alternatively, that consideration
which has a reasonably determinable pecuniary value.
In the situation before us, it is readily apparent that what has passed to
the vendor in consideration for the conveyance is (1) the initial down payment,
and (2) a promise by the purchaser to pay the remaining purchase price at
the contractual rate of interest in equal annual payments. It is well settled that
a promise by the purchaser to pay money to the vendor in return for the
agreement by the vendor to convey certain realty to the purchaser is a valuable
consideration for the promise of the vendor. 91 C.J.S. Vendor & Purchaser
46. And, in Dorman v. Publix-Saenger-Sparks Theatres, Fla. 1938, 184 So. 886,
120 ALR 403, the Florida Supreme Court stated:
It is not necessary that a benefit should accrue to the person
making the promise; it is sufficient that something valuable flows
from the person to whom it is made, or that he suffers some prej-
udice or inconvenience, and that the promise is the inducement to
the transaction .. .. (Emphasis supplied.)
The problem becomes therefore just what pecuniary value is to be placed
upon a "consideration" which consists in part of a promise to pay the remain-
ing purchase price (after deduction of the down payment) for a conveyance
in equal annual payments which reflect the contractual interest rate upon the
unpaid balance thereof as specified by the parties. In answer to this problem,
it must first be ascertained just what is the true nature of "interest"? This term
has been technically defined as the compensation allowed by law, or fixed by
private agreement, for the use or detention of money or its equivalent. 30 Am.
Jur. Interest 2. In the case of Parker v. Brinson Construction Company, Fla.
1955, 78 So.2d 873, the Supreme Court defined the term more broadly:
Interest in the more common acceptation of the term is the cost
of hiring money or from the lender's point of view, the return for
loaning it. It is compensation paid by a borrower to a lender for
the use of the money and ordinarily we speak of interest as arising
out of a contractual relation .... (Emphasis supplied.)






ANNUAL REPORT OF THE ATTORNEY GENERAL 47



It is quite evident that under these definitions the concept of "interest"
relates to the function or activity of loaning money to one who thereby bor-
rows the money on the condition that he pay back such loan at the going
rate of interest as so determined by the parties thereto. The "interest" thereby
created by contract is the consideration for the use and retention of the money
so borrowed. Therefore, an individual who purchases an interest in land on
a deferred payment credit basis from his vendor in the transaction stands
thereby in a dual relationship to that vendor, viz., that of both a purchaser
of the interest conveyed and of a borrower of the funds to so consummate
the transaction. It is therefore necessary in the instant case to separate from
the so-called "total consideration" that portion of such figure which is properly
allocated to the borrower relationship that the purchaser so occupies with his
vendor by their financial arrangement. The amount that remains is the properly
taxed principal sum which relates to the purchaser relationship of the parties
only. This sum, when added to the initial down payment, forms and so con-
stitutes the "consideration" for the conveyance by the vendor to the purchaser
of the interest in the land. It is this figure which is liable for the documentary
stamp tax under 201.02(1), F. S.
This determination, that it is only the principal amounts that are properly
taxable under 201.02(1), F. S., is supported by the policy enunciated by the
Supreme Court in the case of Dundee Corporation v. Lee, Fla. 1946, 24 So.2d
234, wherein the court was faced with making the proper determination as
to the taxable value to be placed upon the consideration for a 99-year lease:
.[W]e are next confronted with the real question in the case,
viz., should the tax be computed on the rent promised to be paid
for the life of the lease, or should it be computed on the present
value of that amount or should it be based on the actual value of
the real estate leased.
The court answered its question as follows:
[B]ut with the light now before us in view of their attri-
butes, manner of payment and the fact that the act imposes the "con-
sideration" or "obligation" evidenced thereby as the basis of computa-
tion, we think the present worth of the consideration promised over
the period is the fair basis on which to impose the tax. This holding
squares with the rule by which paper of this class is valued on the
market.
Although the court held that the lease agreement convenant to pay rent
was subject to taxation under 201.08, F. S., as a "written obligation to pay
money," the court in a later decision, De Vore v. Lee, Fla. 1947, 30 So.2d 924,
held that such lease covenants were properly taxable under 201.02(1), F. S.,
as a conveyance of an interest in land. The court did not, however, repudiate
its earlier ruling that the proper measure of the consideration therefore was the
"present worth of the consideration promised over the period" of time therein
involved. When this same De Vore case came up once again before the court
a few years later, De Vore v. Gay, supra, the court held that the lease cove-
nant to pay rent was not even taxable under 201.02(1), F. S., because such
covenant provided for only future payments for future uses-that of occupancy
under the lease. Such future payments were determined to be executoryy con-
siderations" only, and as such, did not constitute "actual monetary considera-
tions" at the time of the execution of the lease agreement because such future
payments were wholly and completely executoryy" until such time as the oc-
cupancy of the property in question was fulfilled for that particular period
of time for which such payments were in recognition. Of particular interest
in the opinion is the fact that by reference to the taxpayer's argument, the
reported opinion included the following statement: "The term 'consideration' is





48 ANNUAL REPORT OF THE ATTORNEY GENERAL


used in this section of the statute in the sense of 'purchase price."' Although
it cannot be said that this statement is a statement by the court itself, nor
a ruling thereon, it is certainly worthy of more than just passing note.
The cases dealing with the determination of a present value for covenants
in a lease to pay future payments for future uses are clearly distinguishable
from the situation in the instant case. In those cases there was nothing of a
present nature passing under the instrument to either party. There was no con-
sideration, nor was there any conveyance as such terms are contemplated by
201.02(1), F. S., at the time of the execution of the instrument under examina-
tion. In the present situation there is not only an actual conveyance at the
time of execution, but there is also an actual consideration which has a "rea-
sonably determinable pecuniary value"-the sum of the down payment and the
allocable principal amounts to the deferred payments. There is no need to cal-
culate a present value for this amount because this figure is already set forth
in the payment schedule found in the instrument of conveyance. Had there
been no breakdown of the annual payments between principal and interest,
then it would have been necessary to determine the present value of the "total
consideration" from present value tables using as the discount rate either the
contractual rate, or in its absence, the statutory rate. See 687.01, F. S.; Pat-
rick v. Kirkland, Fla. 1907, 43 So. 969, 125 Am.St.Rep. 1096, 12 Ann. Cas. 540;
Everglade Cypress Co. v. Tunnicliffe, Fla. 1933, 148 So. 192; Bennett v. Wil-
liams, Fla. 1941, 5 So.2d 51; Dundee Corporation v. Lee, supra.
Although it must be recognized that at the present time there has not been
a judicial determination of the precise question that you have presented, there
is no reason to believe that the courts would not follow the rationale of the
Dundee case that the consideration which is taxable under 201.02(1), F. S.,
is an actual consideration having a present value. Therefore, it is my opinion
that even though the parties to the transaction have termed the total of the
annual payments as the "total consideration" for the conveyance, it is only the
total of the principal amounts that is liable for the documentary stamp tax
under 201.02(1), F. S., and that the amounts set forth as interest are exempt
from such tax.
Your request and all the comments above relate solely to documentary
stamp taxes on conveyances of interests in land imposed pursuant to 201.02(1),
F. S. It must be pointed out that this does not preclude the imposition of
documentary stamp taxes on the indebtedness or obligation, pursuant to 201.08
(1), F. S., as a written obligation to pay money. Attorney General Opinion
061-8; AGO 059-244, revised February 25, 1960. As stated in AGO 070-171,
". .. This imposition has not been considered double taxation, but a tax on two
transactions, which may be evidenced by one instrument."

071-32-March 3, 1971
(See also 071-32A)
PUBLIC MEETINGS
GOVERNMENT IN THE SUNSHINE 286.011, F. S.-APPLICATION
To: Richard E. Gerstein, State Attorney, Miami
Prepared by: Stuart L. Simon, Deputy Attorney General
QUESTIONS:
1. Is the election of the chairman of the district school board
by secret ballot of the members of the board during a public meeting
a violation of 286.011, F. S.?
2. Is the destruction of such ballots by the chairman of the
school board or by any officer or employee of the board an invalid
act?





ANNUAL REPORT OF THE ATTORNEY GENERAL 49


3. Is a telephone conversation between two members of a board
or commission relating to or bearing upon the public's business illegal
per se?
4. Is conversation or discussion between two or more members
of a board or commission at which no one else is present an illegal
act?
5. Is a meeting of the members of a board or commission valid
if the news media and public are not specifically excluded, or does
validity require reasonable notice of the meeting to the news media
and public?
6. Are the standards different in a case of criminal prosecution
for violation of 286.011, F. S., than in a civil suit seeking to enjoin
either the holding of a secret meeting by public officials or the im-
plementation of an enactment adopted at such secret meeting?
7. Is a board member, who votes against specific conduct by
secret procedure, but who then participates in that procedure after
its approval by the board, absolved of criminal responsibility under
286.011, F. S.?
8. May the members of a public body or a single member of
that body bargain or negotiate in secret with representatives of public
employee groups over the terms of a labor contract without violating
286.011, F. S.?
9. May a public body employ a skilled negotiator to bargain
or negotiate on its behalf in secret with representatives of public em-
ployee groups over the terms of a labor contract without violating
286.011, F. S.?
10. What is the legal effect of actions taken by boards and com-
missions in violation of 286.011(1), F. S.?
11. To what public bodies does 286.011, F. S., pertain?
SUMMARY:
Election of a school board chairman by secret ballot is illegal,
destruction of the secret ballots is illegal, and a telephone conversa-
tion between members of a public board is not illegal per se, but
may be subject to scrutiny under the Sunshine or Public Records
Law. Other questions on the Sunshine Law are answered in this
opinion.
We will endeavor to answer these questions in the order set forth above.
AS TO QUESTION 1:
We answer this question in the affirmative. The relevant language of 286.-
011, F. S., is to be found in subsection (1) thereof which states: "All meetings
of any board or commission at which official acts are to be taken are
... open to the public at all times. .. ." (Emphasis supplied.)
The phrase "at all times" indicates that the meeting shall be open to the
public and the news media continuously during the period of the meeting. If
at any time during the meeting the proceedings become covert, secret, or not
wholly exposed to the view and hearing of the public and news media, then
that portion of the meeting becomes violative of the statutory requirement im-
posed by the phrase "at all times." A secret ballot conducted at an otherwise
open meeting constitutes a violation of the sunshine enactment, since the public
and the news media are denied the right to know who voted for whom, and
the meeting cannot therefore be regarded as "open to the public at all times."
AS TO QUESTION 2:
We answer this question in the affirmative. Our opinion is based on the




50 ANNUAL REPORT OF THE ATTORNEY GENERAL


language of 119.041, F. S., which states: "No public official may mutilate,
destroy, sell, loan or otherwise dispose of any public record without the con-
sent of the division of archives, history and records management of the depart-
ment of state."
The written ballots taken to determine the chairmanship of the school
board are public records as defined by 119.011(1), F. S., which states:
"Public records" shall mean all documents, papers, letters, maps,
books, tapes, photographs, films, sound recordings or other material,
regardless of physical form or characteristics, made or received pur-
suant to law or ordinance or in connection with the transaction of
official business by any agency.
The ballots are thus public records and their destruction constitutes a statu-
tory violation, in our opinion. The fact that the act of destruction was per-
formed by an employee of the board (assuming arguendo that the school
board attorney is a mere employee and not a public officer or official) rather
than a member of the school board would not modify this determination since
the board's attorney, even if an employee, may not permit himself to serve
as the instrumentality through which the board attempts to accomplish indi-
rectly what it or its members may not do directly within either the Sunshine
or the Public Records Laws.
At this juncture we would mention that any violation of either the Sunshine
or Public Records Law by any member of a board or commission or any of-
ficer, official or employee in the service of the said board or commission,
would not necessarily give rise to a criminal prosecution. The unintended viola-
tion of the statute involved throughout might well result in an illegal enactment
or act by the board, or one of its officers or employees, but would not con-
stitute an action that would permit the imposition of criminal penalties. An
act would only give rise to a criminal prosecution if there were evidence of
some deliberate or knowing intent to violate the statutory provision. In this
connection we would recommend that this particular answer and the other an-
swers set out in this opinion be read in the light of our answer to question
6 which has applicability to each of the other answers set forth in the opinion.
In our view, criminal prosecutions for violation of either the Sunshine or the
Public Records Law should be undertaken by a public prosecutor only if there
is some clear evidence of actual scienter or deliberate intent to violate an en-
actment in the particular instance before him.
AS TO QUESTION 3:
In our opinion this question must be answered in the negative. Telephone
conversations are frequently held during which beneficial and constructive ideas
are exchanged in lively dialogue between policy-making officials to the great
benefit of the public. We have no wish to inhibit or thwart these lively inter-
changes of ideas among our public officials; however, it is clear that telephone
conversations between school board members on some aspects of the public's
business are improper and violative of the law if conducted covertly or in se-
cret. In this regard we would mention that the statute in question is limited
in its effect to meetings "at which official acts are to be taken." Though this
might seem on first reading to refer only to formal publicized meetings of
a public body at which formal actions to be recorded in official minutes are
contemplated, such an interpretation is not in accord with prevailing judicial
construction. This view was specifically rejected by the Second District Court
of Appeal in Times Publishing Company v. Williams, Fla. 2 D.C.A. 1969, 222
So.2d 470, wherein a unanimous court declared:
Every thought, as well as every affirmative act, of a public
official as it relates to and is within the scope of his official duties,






ANNUAL REPORT OF THE ATTORNEY GENERAL 51



is a matter of public concern; and it is the entire decision-making
process that the legislature intended to affect by the enactment
of the statute before us. This act is a declaration of public policy,
the frustration of which constitutes irreparable injury to the public
interest. Every step in the decision-making process, including the
decision itself, is a necessary preliminary to formal action. It follows
that each such step constitutes an "official act," an indispensable
requisite to "formal action," within the meaning of the act.
We think then that the legislature was obviously talking about
two different things by the use of these phrases, and we can't
agree with appellee that "official acts" are limited to "formal action,"
or that they are synonymous. Clearly the legislature must have intended
to include more than the mere affirmative formal act of voting
on an issue or the formal execution of an official document. These
latter acts are indeed "formal," but they are matters of record
and easily ascertainable (though perhaps ex post facto), notwithstanding
such legislation; and indeed the public has always been aware sooner
or later of how its officials voted on a matter, or of when and
how a document was executed. Thus, there would be no real need
for the act if this was all the framers were talking about. It is
also how and why the officials decided to so act which interests
the public. Thus, in the light of the language in Turk, supra, and
of the obvious purpose of the statute, the legislature could only
have meant to include therein the acts of deliberation, discussion
and deciding occurring prior and leading up to the affirmative "formal
action" which renders official the final decisions of the governing
bodies.
It is our conclusion, therefore, that with one narrow exception
which we will discuss later, the legislature intended the provisions
of Chapter 67-356 to be applicable to every assemblage of a board
or commission governed by the act at which any discussion, delibera-
tion, decision, or formal action is to be had, made or taken relating
to, or within the scope of, the official duties or affairs of such
body ." (Emphasis supplied.)
This same sentiment was expressed by our Supreme Court in Board
of Public Instruction of Broward County v. Doran, Fla. 1969, 224 So.2d 693,
when it wrote:
Under the decision in Turk v. Richard, supra, it would have
been unnecessary to include a provision declaring certain meetings
as "public meetings" if the intent of the Legislature had been to
include only formal assemblages for the transaction of official business.
The obvious intent was to cover any gathering of the members
where the members deal with some matter on which foreseeable
action will be taken by the board.

The right of the public to be present and to be heard during
all phases of enactments by boards and commissions is a source
of strength in our country. During past years tendencies toward
secrecy in public affairs have been the subject of extensive criticism.
Terms such as managed news, secret meetings, closed records, execu-
tive sessions, and study sessions have become synonymous with "hanky
panky" in the minds of public-spirited citizens. One purpose of
the Sunshine Law was to maintain the faith of the public in govern-
mental agencies. Regardless of their good intentions, these specified
boards and commissions, through devious ways, should not be allowed
to deprive the public of this inalienable right to be present and




52 ANNUAL REPORT OF THE ATTORNEY GENERAL


to be heard at all deliberations wherein decisions affecting the public
are being made.
Thus, telephone conversations between public officials on aspects of the
public's business are part of the process which ultimately leads up to final
recorded action in a formal public meeting, and they may not be held
covertly. These conversations come within the ambit of the Sunshine Law
and must be subjected to the scrutiny of the public to the greatest extent
possible. They may, therefore, not be held in secret, or in a place wholly
inaccessible to members of the public or representatives of the news media
for the specified purpose of and with clear intent to avoid the Sunshine
Law's requirements.
In responding to this question we must determine the criterion which
differentiates a telephone conversation open to public scrutiny and one held
in secret. Two tests or criteria are possible. The first of these involves
the physical exclusion of the public and the representatives of the news
media who wish to listen to either participant in the telephone discussion
and who enter the room or office where either participant is conversing
in order to do so. The second test, a more stringent one, involves giving
a reasonable period of notice to the public and the representatives of the
news media who might wish to be present at either of the places where
the participants in the telephone conversation will be, and who are thus
notified that the telephone conversation will occur.
In determining which of these two tests should be applicable, we must
be governed by the rule of reason. In selecting the first criterion rather
than the second in order to determine whether the telephone conversation
is being conducted pursuant to the requirements of the Sunshine Law, we
are mindful of the pragmatic requirements of governmental operation. To
force public officials to give a period of notice to the press and public
before making individual telephone calls or engaging in informal conversation
with other members of the board or commission would slow the free and
healthy conduct of the public's business to a standstill and thwart the interchange
of ideas among public officials. This second test or criterion must therefore
be rejected as unreasonable and unworkable on practical grounds and as
one that would impose an impossible burden on energetic policy-making
officials in the circumstances raised in the question posed.
It will be clear that public officials will or should be spending substantial
portions of their time in offices furnished them in which to conduct public
or official business. Members of the public and news media who wish to
view the conduct of the public's business should feel free to enter these
public offices provided at public expense and witness and listen to the
conduct of their business. Thus, in our view, the telephone conversations
envisaged by your question would become secret and unlawful if members
of the public and press were deliberately excluded from the public offices
furnished for the conduct of the public's business.
We also believe that the public and the representatives of the news
media are entitled to be present at telephone conversations bearing on public
business and occurring in places other than public offices. We realize that
board members will inevitably carry on discussions of public matters, both
telephonically and personally, with other board members in their homes,
on golf courses, in restaurants, and in other places that are not public offices.
It would be absurd to ban such constructive discussions or to hold them
unlawful merely because they were not held in public offices. At the same
time, however, we do not believe that the Sunshine Law can be frustrated
by allowing board members to bar interested members of the press and
public from the places where such conversations bearing on the public's
business are taking place. We realize that in virtually all instances where





ANNUAL REPORT OF THE ATTORNEY GENERAL 53


discussions of public business occur outside of public offices, there will be
no representative of the press or public present. Despite this, we believe
that individual members of the public and press are legally entitled to be
present if they wish to attend any discussion that falls within the ambit
of the Sunshine Law.
We would also mention that when public officials who are subject to
the requirements of the Sunshine Law leave their offices for the sole and
specific purpose of discussing public business in the shade rather than in
the sunshine and with a deliberate intent to avoid the law's requirement
and frustrate the public's desire to observe and hear, they not only violate
the law but they do so knowingly and intentionally. We say this with full
realization of the difficulty that would be involved in proving that a board
member left his offices intentionally for the sole and specific purpose of
discussing some aspect of public business in secret.
In concluding our answer to this question, we want to point out that
nothing we have said in this opinion should be taken to indicate that members
of boards or commissions or bodies with legislative powers are prohibited
from receiving telephone calls from constituents by the provisions of the
Sunshine Law. We believe that each constituent's right to contact and speak
to his representative, whether elective or appointive, is part and parcel of
our democratic system of government and is not limited or enjoined in
any way by the provisions of 286.011, F. S. The Sunshine Law imposes
a clear limitation on the right of public officials to conduct the public's
business in secret. It imposes no such burden or limitation on members
of the public who may wish to speak to their representatives. We therefore
wish to make clear at this point that this opinion should not be construed
or interpreted to require public officials falling within the ambit of the
Sunshine Law to discontinue receiving and responding to telephone calls from
their constituents.
AS TO QUESTION 4:
For reasons stated in the answer to question 3, we must also answer
this question in the negative. Most of the substantive answer given to question
3 will also be applicable here and will not be repeated.
We would add however that, in our opinion, any meeting of commissioners
or board members at which formal actions to be memorialized in minutes
are contemplated, or at which legislation in the form of ordinances or resolu-
tions are envisaged, or at which official reports are received, or at which
a majority or quorum of the body is in attendance, will evoke the second
and more stringent test for determining whether the meeting is being unlawfully
conducted in secret. In such circumstances, we believe that a reasonable
and ample period of notice must be furnished the public and representatives
of the press so that they may attend this formal or quorum-attended meeting
if they wish. In the situation we have described, we believe that both the
period of notice of the meeting and the method of promulgating the notice
to the public must be performed in strict accordance with legislative require-
ments when these requirements exist; where there is no legislative prescription,
then the serving of notice and the promulgation of the notice must be
given in a reasonable manner calculated to timely inform the public.
AS TO QUESTION 5:
This question was answered in the responses to the last two questions
ahd will not therefore be repeated.
AS TO QUESTION 6:
We must answer this question in the affirmative since the former requires
proof of scienter, while the latter may be determined in a declaratory proceeding




54 ANNUAL REPORT OF THE ATTORNEY GENERAL



by one in doubt as to his rights. This is made clear in Board of Public
Instruction of Broward Co. v. Doran, Fla. 1969, 224 So.2d 693, wherein the
Supreme Court stated:
Subsection (3) of Fla. Stat., 286.011, F.S.A., provides that any
person who violates the provisions of the act "by attending a meeting
not held in accordance with the provisions hereof," is guilty of
a misdemeanor. Defendant complains because scienter was not made
a specific element of the offense. We construe the statute to impliedly
require a charge and proof of scienter. We can so construe the
subject statute without being guilty of a "judicial amendment of
the statute." Cohen v. State, 125 So.2d 560 (Fla. 1961).
AS TO QUESTION 7:
We must answer this question in the negative. The statutory language
contained in subsection (3) of the Sunshine Law [286.011, F. S.], states:
Any person who is a member of a board or commission or of any
state agency or authority of any county, municipal corporation or any
political subdivision who violates the provisions of this section by at-
tending a meeting not held in accordance with the provisions hereof
is guilty of a misdemeanor and upon conviction thereof shall be
punished by a fine of not more than $500.00, or by imprisonment
in the county jail for not more than 6 months, or by both such
fine and imprisonment.
The act pronounced criminal by the foregoing is attendance at the meeting
at which a secret or covert act occurs. We, therefore, do not believe that
continuing participation in the secret proceeding, despite an initial vote against
it, is permitted by the Sunshine Law. We hold the view that the statute
requires the board member or commissioner to either leave the meeting
or to refrain from continuing participation in it once the act of violation
occurs. The initial vote against proceeding covertly will perhaps have a bearing
on the guilt or innocence of a board member or commissioner who remains
in the secret meeting as a participant in any criminal proceeding instituted.
AS TO QUESTION 8:
We answer this question in the negative. The recent decision of the
Supreme Court of Florida (Jan. 27, 1971) in City of Miami Beach v. Berns,
245 So.2d 38, states:
The next question to be determined is whether a city council
can hold informal executive sessions at which the public is excluded
for the discussion of condemnation matters, personnel matters, pending
litigation or any other matter relating to city government.

Whether Fla. Stat. 286.011, F.S.A., should authorize secret meet-
ings for privileged matter is the concern of the Florida Legislature
and unless the Legislature amends Fla. Stat. 286.011, F.S.A., it
should be construed as containing no exceptions.
A secret meeting occurs when public officials meet at a time
and place to avoid being seen or heard by the public. When at
such meetings officials mentioned in Fla. Stat. 286.011, F.S.A., transact
or agree to transact public business at a future time in a certain
manner they violate the government in the sunshine law, regardless
of whether the meeting is formal or informal.
Since there are no exceptions to the rule against secrecy set forth in
the Sunshine Law, the attorney general is powerless to create one by implica-





ANNUAL REPORT OF THE ATTORNEY GENERAL 55


tion through an official opinion. We can only conclude that the provisions
of a labor contract in which teachers' salaries, hours of work and other
conditions of employment are fixed, involve a substantial expenditure of the
public moneys, and cannot by any stretch of the imagination be said not
to be related to the public's business. Unless the legislature creates a specific
exception for labor contract negotiations in the Sunshine Law, we must conclude
that the bargaining sessions contemplated by the question fall within the
ambit of this law's requirements.
AS TO QUESTION 9:
We must answer this question in the negative for the reasons set forth
in our answer to question 8 and for the further reason that the board
may not attempt to do indirectly what it is prohibited from doing directly.
To transfer a legislative or school board policy prerogative involving the
establishment of conditions of employment for faculty members to an adminis-
trator or employee would constitute the unlawful delegation of legislative
powers to a nonelective official or perhaps even to an independent contractor.
A legislative body may certainly employ others to assist in the drawing
or phrasing of its proposed enactments, but it may not delegate its responsibility
to enact or pass upon the wisdom of the legislation drawn at its direction
and under its control. The setting of faculty standards or conditions of employ-
ment is a policy matter that the school board, in our opinion, may not
shift or delegate to nonpolicy-making personnel. This is in accordance with
230.23(5), F. S., which appears to require the school board, and no other
body or person, to exercise all powers and perform all duties relating to
the compensation, promotion, suspension and dismissal of instructional and
noninstructional personnel of the county public school system. See Kelly v.
Board of Public Instruction, Fla. 1930, 141 So. 311.
AS TO QUESTION 10:
Subsection (1) of the Sunshine Law [286.011, F. S.], declares that no
formal actions taken by any board or commission in violation of the statute
"shall be considered binding." In our opinion, this does not require each
and every violative action by every board and commission in the state to
be deemed a nullity, wholly void ab initio and as though never enacted.
It means rather that individual actions taken by boards and commissions
in violation of the statutory inhibition are individually voidable and thus
subject to challenge by persons with proper standing to sue in court cases.
To hold otherwise would be to create public chaos.
We are mindful of the situation that arose several years ago in the
many reapportionment cases pending, when state and federal courts across
the nation were besieged with requests to hold all enactments of malapportioned
legislatures unconstitutional, and as though never enacted. We are not aware
of any court ever acceding to such a prayer for relief despite the soundness
of legal arguments advanced in support of this position. Courts recognized,
as do we, that an en masse declaration of unconstitutionality of thousands
of enactments throughout the nation, without any consideration being given
to the substantive content of the enactments, or the procedures involved
in the enactment of any individual statute or ordinance, could serve no
purpose but to throw organized societies of people and their local governments
into panic and confusion.
We therefore express the view that the formal enactments and actions
by the various boards and commissions throughout the state are not null
and void in toto even if violative of the Sunshine Law, but are subject
to challenge on an individual basis in court cases brought by persons with
standing to sue.





56 ANNUAL REPORT OF THE ATTORNEY GENERAL


We would also add that, in our opinion, legislative enactments passed
by a board or commission in violation of the Sunshine Law may be corrected
and thus made legally effective if subsequently reenacted with nunc pro
tunc effect, or reenacted together with a ratification of the initial enactment.
These reenactments should be effected in accordance with the provisions
of 286.011, F. S. Elections held by secret ballot as indicated in question
1 may be made lawful by conducting a new election in strict compliance
with the Sunshine Law, and then having the board or commission ratify
all actions taken since the initial voidable election.
AS TO QUESTION 11:
This question has recently been answered by the Supreme Court in
City of Miami Beach v. Berns (1971), 245 So.2d 38, in this language: "The
Legislature intended to extend application of the 'open meeting' concept so
as to bind every 'board or commission' of the state, or of any county
or political subdivision over which it has dominion or control. ..."
This broad determination was limited by the Supreme Court in Canney
v. Board of Public Instruction (Feb. 24, 1971) [case nos. 39473 and 39474
have been set for rehearing July 5th, 1972], - So.2d -
wherein the court incorporated in its opinion certain of the language of
the First District Court of Appeal in the same cause (231 So.2d 34) as
follows:
Next, petitioner contends that the "Government in the Sunshine
Law," Section 286.011, Florida Statutes, was violated by the School
Board when it recessed the hearing on October 14 to reach a
decision. The transcript of the proceedings discloses that petitioner's
attorney stated at one point: "I think that the School Board is
in a position of being a quasi-judicial administrative agency at this
point. ." The observation was correct. The School Board was
acting in a quasi-judicial capacity, and the conference held by it
was privileged and did not fall within the purview of the cited
statute.
We are not unaware of the dicta set out in our sister court's
opinion in Times Publishing Company v. Williams, in treating the
application of the Government in the Sunshine Law wherein by
footnote that Court observed that the performance of quasi-judicial
functions were not excepted by the Legislature from the application
of said statute. We are aware that there are three branches of
government-legislative, executive and judicial. We are further aware
that the Legislature is not empowered, by statute or otherwise, to
prescribe the conduct of the internal government of the judicial
branch. Such constitutional authority is vested solely and exclusively
by the provisions of Article V [State Const.] in the judicial branch
of the government. The Legislature is possessed of the authority
to vest quasi-judicial functions in a county board of public instruction.
. Neither the public nor the press has any more right to enter
into the judicial deliberations of the members of a county board
of public instruction than they have to enter into the conference
room of the Supreme Court of Florida when the members of that
Court are deliberating upon a judicial question or into a petit
jury room when those citizens are deliberating upon their verdict.
From the foregoing we conclude that the provisions of the Sunshine
Law are not applicable to the judicial branch of government in Florida
nor to legislative bodies performing quasi-judicial functions.
Since the separation of powers doctrine also has application to the executive
branch of government, we do not believe that the Sunshine Law governs





ANNUAL REPORT OF THE ATTORNEY GENERAL 57


those executive divisions of state government established or created organically
by Art. IV of our Constitution. We have specific reference here to the
individual members of the cabinet enumerated in 4, Art. IV, State Const.
However, when these executive officers of our state meet as a cabinet and
as an executive body that performs quasi-legislative functions and tasks, it
becomes subject to the requirements of the Sunshine Law in the same way
that the legislature and the 67 county commissions are so subject. Those
departments or boards authorized by 6 of Art. IV of the Constitution,
which are part of the executive branch of state government but established
by statute, and more particularly those defined at length in Ch. 20, F.
S., (Governmental Reorganization Act), and which perform quasi-legislative
functions in large measure, are subject in our view to the Sunshine Law
provisions since they fall within the category of governmental agencies subjected
thereto by the Supreme Court's language in City of Miami Beach v. Berns,
supra: "The Legislature intended to extend application of the 'open meeting'
concept so as to bind every 'board or commission' of the state, or of
any county or political subdivision over which it has dominion or control."
This position is supported by both majority and minority opinions in
the Canney case, supra. The majority opinion has already been quoted in
substantial part; and the minority opinion likewise takes the view that the
Sunshine Law applies only to the legislative branch of government. The
dissent authored by Justice Adkins states in pertinent part:
I agree, under the doctrine of separation of powers, that the
Legislature is not empowered to prescribe the conduct of the internal
government of the judicial or the executive branch. The question
presented here is whether a county school board, acting in a quasi-
judicial capacity, is a part of the legislative branch of government.
If a county school board is a part of the legislative branch, then
the Government in the Sunshine Law should be applicable, and
any exception or amendment should be considered by the legislative,
not the judicial branch.
Since the majority opinion differed essentially only from the last-quoted sen-
tence, it will be apparent that both the majority and minority opinions in Can-
ney accepted the view that the separation of powers concept made the Sun-
shine Law applicable to the legislative branch of government. The majority
held that quasi-judicial functions of legislative bodies such as school boards
were not within the ambit of the Sunshine Law, and presumably neither would
quasi-executive functions be. In like manner, it would appear that quasi-legis-
lative functions exercised by an executive board would fall within the Sunshine
Law's requirements.
This opinion which modifies certain of the official opinions of my pre-
decessor in office is based to a substantial extent on extremely recent Florida
Supreme Court decisions. We now specifically recede from the following opin-
ions in conflict with this opinion:
(a) GS 70-4 (Government in the Sunshine opinion) of October 12, 1970.
This opinion raised the identical question posed in question 1 herein. It was
answered by my predecessor with a statement that secret ballots were per-
missible in otherwise open meetings without violation of the Sunshine Law.
(b) Attorney General Opinion 070-37 of April 30, 1970. This opinion
which held that conferences between city commissions and their attorneys relat-
ing to pending litigation were privileged and not within the ambit of the Sun-
shine Law appears to have been reversed by the Supreme Court of Florida
holding in City of Miami Beach v. Berns (1971), 245 So.2d 38.
(c) GS 69-8 (Government in the Sunshine opinion) of December 11, 1969,
which held that formal city commission meetings could be held in the town
hall without notice to the public or press. We recede from the declaration that





58 ANNUAL REPORT OF THE ATTORNEY GENERAL


286.011, F. S., has no notice requirements, express or implied.
(d) GS 69-6 (Government in the Sunshine opinion) of November 4, 1969,
is reversed for the same reason stated in GS 69-8.
(e) GS 69-5 (Government in the Sunshine opinion) of November 4, 1969,
is reversed because it held that the deliberations of a quasi-judicial board
should be open to the public. The Supreme Court's recent opinion in Canney
v. Board of Public Instruction of Alachua County, Florida (1971), So.2d
holds to the contrary.


071-32A-July 9, 1971
(Supplement to 071-32)
PUBLIC MEETINGS
GOVERNMENT IN THE SUNSHINE-ADMINISTRATIVE
LEVEL-NEGOTIATIONS
To: W. Crosby Few, Attorney, School Board, Tampa
Prepared by: Herbert T. Schwartz, Deputy Attorney General
QUESTION:
If the Hillsborough County Board of Public Instruction conducts
negotiations with the classroom teachers association on an adminis-
trative level and if the negotiators have no power to bind their prin-
cipals, is the Sunshine Law violated by such negotiation being held
in private?
SUMMARY:
Clarification of AGO 071-32.

I am of the view that the answer to your question is in the negative. I
am not unmindful of AGO 071-32 issued by me on March 3 of this year. I
am also not unmindful of the recent order entered by the Honorable Rhea
Pincus Grossman in the case of Bassett, et al. v. Braddock, et al., in the Eleventh
Judicial Circuit, Dade County. One of the issues of that case dealt with an
issue similar to your request. That case dealt with a professional negotiator
being retained by the Dade County Board of Public Instruction and being an
agent or servant of the said board. The professional negotiator retained by the
Dade County Board of Public Instruction was under specific authority and lim-
ited in the range of his negotiations. Judge Grossman found in her partial final
judgment of March 25, 1971 that "the negotiator is the agent of the board
and is governed by the provisions of 286.011, F. S." No authority need be
cited for the basic premise of law that an agent can bind his principal. The
case arising in Dade County is presently on appeal, and is pending before the
Supreme Court of Florida after having been certified by the Third District
Court of Appeal.
From your letter I presume that the staff level discussions contemplated
are totally exploratory in nature and result in no decisions that are controlling
or binding upon the board of public instruction. It is this factor which gives
the Hillsborough County matter a completely different hue vis-a-vis the Dade
County issue. Likewise, it is this factor which would place the discussions en-
visioned in your request outside of the scope and intendment of 286.011, F.
S. Thus viewed, the staff representatives of the parties to the negotiation in
your situation cannot be viewed as agents of the parties as found by Judge
Grossman in the Bassett case.
It is my view that the distinguishing feature in Hillsborough County is the
lack of binding authority in the administrative staff members who carry on





ANNUAL REPORT OF THE ATTORNEY GENERAL 59


preliminary negotiations with staff members of the Classroom Teachers Asso-
ciation. I assume that these staff level discussions entail primarily the setting
out of positions by the respective parties so that appropriate briefing and
memoranda can be supplied to the principals for their consideration and dis-
cussion in open meetings. This would seem a logical approach so that the prin-
cipals may carry on meaningful and informed discussion when the final ne-
gotiation and settlement process begins, which process would clearly be within
the ambit of the Sunshine Law and thus required to be in public.
I cite to you a portion of Judge Grossman's final judgment which I find
compelling in answering your question:
Since the work product of these negotiations is tentative and
binding on no one, and since the public will be given an opportunity
to express itself on those problems prior to their approval the
[private staff level negotiations] cannot be in violation of the letter
or purpose of the Government in Sunshine Law.
While I recognize that Judge Grossman held an opposite view from AGO 071-
32 in the Dade County case, I recognize that first, that case is on appeal and
has not been definitively or authoritatively adjudicated by an appellate court
and second, that the Dade County factual situation differs significantly from
your own.
This opinion should be interpreted in no way as modifying or receding
from AGO 071-32. I view my above remarks as an expansion and modification
of that earlier opinion based on the significant distinguishing feature of the
Hillsborough County factual situation.

071-33-March 9, 1971
MUNICIPALITIES
ORDINANCE-AUTO ACCESS-FEES
To: Don Nichols, Florida Representative, Jacksonville
Prepared by: John A. Zebedee, Assistant Attorney General
QUESTION:
Can the Jacksonville Beach City Council pass a valid ordinance
(Ordinance No. 6674) restricting access to a public facility to those
vehicle operators who pay a one dollar ramp fee?
SUMMARY:
The City of Jacksonville Beach does not have statutory authority
to levy a one dollar ramp fee on each vehicle seeking access from
city streets to the state-owned public beach.
The powers and duties of this office are limited by law and as such I
am not empowered to rule on the constitutionality of a city ordinance. It has
long been the law of the state that a municipal ordinance which has been
validly enacted, as the one here in question has been, as of March 1, 1971,
carries a presumption of constitutionality. However, in order to be of some
assistance to you, my research reveals that the validity of said ordinance is
highly questionable based upon the following reasoning.
It would first appear that such an ordinance is contrary to the charter of
the City of Jacksonville Beach contained in Ch. 18623, 1937, Laws of Florida.
Said charter was modified at Ch. 29187, 1953, Laws of Florida, 88(b) to read
as follows:




60 ANNUAL REPORT OF THE ATTORNEY GENERAL


Section 88. Additional Powers.-The city shall have power, and
it is hereby authorized:

(b) To provide for the creation and establishment of a special
fund for the maintenance and repair of the seawall and ramps erect-
ed along the Atlantic Ocean, such fund to be derived in part by
the levy of taxes upon all real estate within the City, and also in
part by the imposition and levy of a special annual tax or assessment
upon all property fronting or abutting upon such seawall and ramps,
in such proportions, and to be administered by such persons, trustees
or board and under such terms, conditions and trusts as may be des-
ignated or prescribed by ordinance;
The provisions of the Laws of Florida previously cited are not adversely
affected by Ch. 67-1320, Laws of Florida, which is the legislative act creating
consolidated Jacksonville. It would therefore appear that 88(b) Ch. 29187,
1953, Laws of Florida, provides the exclusive means for producing revenue for
the maintenance and repair of the seawall and ramps erected along the Atlantic
Ocean in the City of Jacksonville Beach.
Section 96 of Ch. 18623, 1937, Laws of Florida, deals with police powers
and therefore does not authorize a revenue producing ordinance as is here in
question. It is to be further noted that the charge does not appear to be in
the nature of a tax based upon the reasoning and cases advanced in AGO
071-23.
Even assuming that such charter barriers did not exist, it is highly question-
able that the City of Jacksonville Beach could place a charge on the use of
its city streets. The Florida Supreme Court in Day v. City of St. Augustine,
Fla. 1932, 139 So. 880, 885, in dictum stated the following:
.On the other hand, the right to travel the public highways
(when not exercised as a means of conducting a private business
thereon) is subject only to the police power and the power of taxa-
tion, an inherent right which, in its very essence, is quite different
from the use of a special facility such as a bridge.
We may therefore grant the appellant's argument that a city
would have no right to erect toll gates along its streets as a means
of raising revenue from citizens, taxpayers, and others who travel
thereon, but such principle, if conceded, would not necessarily apply
to special facilities, the construction and operation of which are in-
herently the subject of franchises, and not such a right in common
as the right of free travel on a city street.
In this case the Legislature might have granted the franchise in
question to a private corporation, but did not do so, although that
has been done in this and many other states in particular instances.
The fact that it elected to grant this franchise with equal or corres-
ponding privileges to a municipal corporation, instead of a private
one, does not detract from the power of the Legislature in the prem-
ises, nor deny to the municipal grantee of the franchise whatever
legal rights may have accrued to it out of the legislative grant as
made.
Inasmuch as no such legislative authority has been granted in the factual setting
here presented, I find it unnecessary to consider such approach at this time.
The only other possible question which might be raised would involve the
legality of the ordinance as charging a fee for the use of the beach facilities
themselves. The beach of the Atlantic Ocean between high and low water-
marks is the property of the state, held in trust for the use of all the people
of this state. White v. Hughes, Fla. 1939, 190 So. 446 and numerous cases cited






ANNUAL REPORT OF THE ATTORNEY GENERAL 61


therein. It would therefore appear that this question is answered in AGO 062-
142 noting that most municipal beaches in Florida are provided by nature
and therefore little or no upkeep is generally required to maintain them. Said
opinion concluded that there would be little, if any, justification for charging
a fee for the use of a public beach in this state.

071-34-March 11, 1971
LAW ENFORCEMENT OFFICERS
COUNTY SOLICITOR'S INVESTIGATORS-POWERS
To: James B. Schmidt, Chief Investigator, County Solicitor's Office, Titusville
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTIONS:
1. Does an investigator of the county solicitor's office have the
authority to serve witness subpoenas in criminal cases, serve search
warrants and make arrests on warrants and capiases?
2. Does such investigator have the authority to carry a firearm?
SUMMARY:
An investigator for the county solicitor may not legally serve
witness subpoenas or search warrants or arrest persons without war-
rant or capias, but he is a law enforcement officer and may carry
a firearm.
AS TO QUESTION 1:
There is no law which authorizes an investigator for a county solicitor to
serve witness subpoenas or search warrants or to arrest persons under warrants
or capiases. The 1970 legislature enacted what is now 27.255, F. S., which
reads as follows:
27.255 Investigators, authority to arrest.-Each investigator em-
ployed by a state attorney shall, within the boundaries of the judicial
circuit served by such state attorney, have full authority to serve any
arrest warrant, search warrant, witness subpoena, capias, or court
order issued by any court or judge within such judicial circuit in a
criminal case or in connection with a criminal investigation when the
same is directed to him. He may carry weapons on or about his per-
son in same manner as other law enforcement officers. (Emphasis
supplied.)
However, this statute has no application to any investigator except one employ-
ed by a state attorney. Therefore, your first question is answered in the neg-
ative.
AS TO QUESTION 2:
Section 790.01, F. S., provides penalties for carrying concealed weapons.
Section 790.05, F. S., provides penalties for a person who carries around with
him or has in his manual possession a pistol or repeating rifle without having
a license from the board of county commissioners.
However, 790.051, F. S., provides certain exemptions from the operation
of said statutes. It states that:
790.051 Exemption from licensing requirements; law enforce-
ment officers.-Law enforcement officers are exempt from the licens-
ing and penal provisions of this chapter when acting at any time





62 ANNUAL REPORT OF THE ATTORNEY GENERAL


within the scope or course of their official duties or when acting at
any time in the line of or performance of duty. (Emphasis supplied.)
An investigator for a county solicitor is a "law enforcement officer" by reason
of the following definition laid down in 790.001(8)(f), F. S.: "All state attor-
neys, United States attorneys, county solicitors, and county prosecutors and
their respective assistants and investigators." (Emphasis supplied.)
Therefore, an investigator for a county solicitor may carry a firearm, con-
cealed or unconcealed, when acting at any time within the scope or course
of his official duty or when acting in the line of or performance of duty.

071-35-March 11, 1971
LAW ENFORCEMENT OFFICERS
CARRYING WEAPONS-CITY PROSECUTING ATTORNEY
To: William M. Porter, Assistant City Attorney, Miami
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
May an assistant city attorney assigned to full-time duty in the
Municipal Court of the City of Miami be permitted to carry a pistol
under the provisions of 790.01, F. S., which deals with carrying con-
cealed weapons?
SUMMARY:
City prosecuting attorneys or their assistants are not defined by
statute as law enforcement officers, and therefore are not authorized
to carry firearms without a county license.
Section 790.01, F. S., contains no exception in favor of city prosecuting
attorneys or their assistants. Section 790.051, F. S., creates certain exemptions
from the operation of 790.01 in favor of "law enforcement officers." Section
790.001(8) defines "law enforcement officer" but none of the definitions covers
city prosecuting attorneys or their assistants. Therefore, the answer to your
question must be in the negative.
I note that 790.01(4), F. S., states that nothing in the section shall relate
to persons licensed as set forth in 790.05 and 790.06, F. S. If you should
obtain a license from the board of county commissioners under the last-men-
tioned statutes, then you would not be subject to prosecution under 790.05
for carrying a pistol around with you or having it in your manual possession
and you would not be subject to the penalties provided by 790.01 for carrying
a concealed firearm.


071-36-March 11, 1971
MUNICIPALITIES
INVESTMENT OF FUNDS-SAVINGS ACCOUNTS
To: William G. Miller, Jr., City Attorney, Wilton Manors
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
1. With regard to the investment of public funds in savings ac-
counts, are municipalities governed by 665.321, F. S.?






ANNUAL REPORT OF THE ATTORNEY GENERAL 63



2. If municipalities are governed by 665.321, F. S., does the
term "savings accounts" embody certificate of deposit?
3. If the amount of public funds to be invested in savings ac-
counts exceeds $20,000, is it necessary for these accounts to be in-
sured by the federal government or an instrumentality thereof as was
required by repealed 665.43, F. S.?
SUMMARY:
Municipalities are authorized to invest public funds in savings ac-
counts of savings associations, and this may include certificates of de-
posit, but there are no limitations as to the amount or conditions of
such investments.
Questions 1 and 2 should in my opinion be answered in the affirmative,
and question 3 in the negative.
To the extent that the earlier opinion (AGO 069-45) of this office was
based on the provisions of 665.43, F. S., 1967, it is necessarily altered by
the repeal of that section and the enactment of 665.321, F. S., 1969, as fol-
lows:
665.321 Savings accounts as legal investments.-
(1) LEGAL INVESTMENTS municipalities and other pub-
lic corporations and bodies, and public officials hereby are specifi-
cally authorized and empowered to invest funds held by them with-
out any order of any court, in savings accounts of savings associations
which are under state supervision and in accounts of federal associa-
tions organized under the laws of the United States and under federal
supervision, and such investments shall be deemed and held to be
legal investments for such funds.
By subsection (3) this statute is made ". .. supplemental to any and all other
laws relating to and declaring what shall be legal investments for the persons,
fiduciaries, corporations, organizations and officials referred to ." I conclude
therefore that its terms are supplemental to the authorization for investments
contained in 167.74(1), F. S.
The definition of "savings accounts" covered by 665.321, F. S., is that
set forth in 665.021(19), F. S. as follows:
(19) "Savings account" shall mean that part of the savings lia-
bility of the association which is credited to the account of the holder
thereof. A savings account also may be referred to as a savings de-
posit.
Insofar as I am apprised of the nature of the certificates to which you refer,
they appear to be within the statutory definition of savings accounts under this
law. With reference to question 3, I find no express provision in Ch. 665 or
Ch. 167, F. S., as currently amended, which would impose the limitation ap-
pearing in former 665.43, F. S., 1967, as to insured accounts.
I conclude that 665.321, F. S., authorizes investment of surplus municipal
funds in savings accounts of savings associations which are under state super-
vision, and in accounts of federal associations organized under the laws of the
United States and under federal supervision without further express limitation
as to the amount or conditions of such investment.




64 ANNUAL REPORT OF THE ATTORNEY GENERAL


071-37-March 11, 1971
COUNTY OFFICERS
SALARY-EFFECTIVE DATE OF INCREASE OR DECREASE
1970 CENSUS-145.15, F. S.
To: Ed Blackburn, Jr., State Representative, Temple Terrace
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Under 145.15, F. S., what is the effective date of an increase
or decrease in the salary of a county fee or budget officer when
his county moves into a different population bracket under the 1970
federal census?
SUMMARY:
Any change in the salary of a county fee or budget officer
as a result of change by the 1970 federal census in population status
becomes effective July 1, 1971, by terms of 145.15, F. S.
As noted by you, in AGO 069-136 my predecessor in office ruled that,
as to fee officers, the increase in compensation provided by Ch. 69-346, Laws
of Florida (Ch. 145, F. S.), should take effect as of Jan. 1, 1970. The opinion
relied upon previous opinions of this office (AGOs 058-57 and 061-159) to the
effect that when a law fixes the maximum annual compensation of an officer
without dividing it into monthly increments, "then it may be inferred that the
legislative intent was to increase the salary of the fee officer involved for the
entire year even though the act did not become effective until the middle of
the year." Attorney General Opinion 058-57, supra. The 1958 opinion noted also
that since fee officers are on a calendar-year basis and make their final annual
accounting on the last day of the year, the statute would, in effect, operate
prospectively as to such officers; moreover, as to such officers, "it would com-
plicate accounting procedures to make an accounting based on more than one
statutory income figure."
But 145.15, F. S., speaks in clear and unambiguous terms as to the effec-
tive date of a salary increase or decrease due to a population change. It pro-
vides: "Any change in salary caused by application of the 1970 census
shall become effective on July 1, 1971, pursuant to 11.031(3), and the salaries
specified herein shall not be retrospective."
I have not overlooked the fact that the portion of the act construed in
AGO 069-136 provided that the sections fixing the compensation of county
officers "shall take effect July 1, 1969, and the salaries specified herein shall
not be retrospective." My predecessor in office apparently had the view, as
to fee officers, that this provision was insufficient to overcome the presumption
of legislative intent adopted in the prior decisions of this office referred to
above. However, it was indicated in AGO 069-136 that an increase in salary
due to a population increase might not be subject to that rule. As stated there-
in, in illustrating a salary increase for a fee officer: "Compensation will there-
after remain constant until the end of the present term unless a greater salary
is authorized as a result of a population increase which will then become effec-
tive July 1, 1971, pursuant to 11.031(3), F. S."
I have the view, therefore, that the provisions of 145.15, F. S., quoted
above, respecting the effective date of salary changes due to a change in the
population of the county, must be interpreted as requiring these changes to
be made prospectively from July 1, 1971, without regard to whether the officer
in question is operating on a calendar-year basis as a fee officer, or on a fiscal-
year basis as a budget officer.





ANNUAL REPORT OF THE ATTORNEY GENERAL 65


071-38-March 11, 1971
HOMESTEAD EXEMPTION
TENANTS-IN-COMMON-EXEMPTION ALLOWABLE
To: Wayne M. Carlisle, County Attorney, Gainesville
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
Based on the assumption that there are five tenants-in-common,
one of whom maintains a permanent residence on the property and
otherwise qualifies for homestead exemption, what would the home-
stead tax exemption be under the following circumstances:
1. If the property has a value of $25,000,
a. Would the homestead exemption be $5,000-that is, one fifth
of the value of the real estate assessable to that one fifth owner-
or
b. Would it be one fifth of $5,000, the latter being the maxi-
mum allowance for homestead under the constitution?
2. If the property has a value of $5,000, would the exemption
allowed to the hypothetical one fifth tenant-in-common be $1,000?
3. If the property has a value of $4,000, would the exemption
allowed to the hypothetical one fifth tenant-in-common be one fifth
of $4,000?
SUMMARY:
Real property assessed to five tenants-in-common may be eligible
for the maximum of $5,000 homestead exemption where one of the
tenants maintains a permanent home there, regardless of how the al-
lowable exemption may be divided among the tenants-in-common.
The questions presented should in my opinion be answered in the affir-
mative, except for part b. of question 1. which should be answered in the
negative, for the reasons stated in recent AGO 070-54.
When the assessable value of the interest of a one fifth tenant-in-common
exceeds $5,000, such tenant would not be restricted to one fifth of the maxi-
mum homestead exemption of $5,000, because under Art. VII, 6(b), State
Const., the exemption is accorded to each homestead residential unit, limited
to the specified amount or to any lesser "value of the real estate assessable
to the owner" claiming such exemption.


071-39-March 12, 1971
PUBLIC OFFICERS
REPORT OF CONTRIBUTIONS-111.011, F. S.
To: James M. McEwen, City Attorney, Temple Terrace
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Should the report of contributions required by 111.011, F. S.,
be filed for the last half of 1970?
2. If no contributions have been received, is it necessary to file
such a report?
SUMMARY:





66 ANNUAL REPORT OF THE ATTORNEY GENERAL


Each elected public officer, including municipal, must file
prior to Feb. 15 of each year a report of political contributions ex-
ceeding $25 and for each half of the calendar year he holds office,
but he is not required to file reports when no contributions have been
received.
AS TO QUESTION 1:
Section 111.011, F. S., 1970 Supp. (enacted by Ch. 70-230, Laws of Flor-
ida), requires each elected public officer-national, state, county and munic-
ipal-to file prior to Feb. 15 of each year a report of each contribution
in excess of $25 received by him during the preceding calendar year, together
with the names and addresses of the contributors and of the persons to whom
such contributions were disbursed during the year.
I have the view that the report should be filed for the six-month period
beginning July 1 and ending Dec. 31, 1970. There is nothing in the act to
indicate that it should not be effective until Jan. 1, 1971. To the contrary, it
is expressly provided that the act "shall take effect July 1, 1970." And subsec-
tion (2) of the act, requiring a report to be filed "for each half of the calendar
year during which an elected public officer holds office regardless of whether
he is holding office at the time the statement is required to be filed," evi-
dences a legislative intent that contributions must be reported for the entire
period during which an official holds office, even though his term may have
expired during the first half of the calendar year (as is the case with many
elected city officials) or during the last half thereof (as is the case with many
elected county and state officials). Accordingly, your first question is answered
in the affirmative.
AS TO QUESTION 2:
The statute does not, in [specific] terms, require a report to be made even
though no contributions were received. In a somewhat similar situation (the
reporting by candidates of campaign contributions as required by 99.161(8)(a),
F. S.), I have suggested that the wise course would be for candidates to file
the form indicating that no such expenditures were incurred or contributions
made to remove any inference that the law is being violated; and I see no
reason why elected public officers could not do the same insofar as the reports
required by 111.011, F. S., are concerned. However, I find no legal re-
quirement that this be done. Your second question is answered in the negative.

071-40-March 15, 1971
CONSTABLES
CRIMINAL WARRANTS-USE OF RUBBER STAMP SIGNATURES-
FALSE ARREST LIABILITY
To: Ivan Nachman, Constable, District 1, Miami
Prepared by: Wallace E. Allbritton, Assistant Attorney General
QUESTIONS:
1. Are criminal warrants lawfully issued when the name of the
justice of the peace issuing said warrants has been rubber stamped
thereon with a facsimile rubber stamp signature?
2. Does the clerk of the justice of the peace court have author-
ity to determine whether facts recited in a sworn complaint constitute
probable cause sufficient to justify issuance of an arrest warrant?
3. Are constables liable in a civil action for false arrest because





ANNUAL REPORT OF THE ATTORNEY GENERAL 67


of having served a criminal warrant containing a facsimile signature
of the justice of the peace.
SUMMARY:
It is better practice, although not required, for a justice of the
peace personally to sign a warrant for arrest of an individual, al-
though he may authorize a rubber stamp signature when done in his
presence and when the justice has determined the facts.
AS TO QUESTION 1:
Question 1 is answered in the affirmative. The case of State v. Hickman,
Fla. 2 D.C.A., 1966, 189 So.2d 254, is a complete answer to this question. In
Hickman, the Second District Court of Appeal squarely held that a justice of
the peace could authorize his chief clerk to affix his signature on warrants by
using a rubber stamp facsimile when done in his presence, and when the jus-
tice of the peace himself made the determination as to whether the facts recit-
ed in the sworn complaint constituted probable cause sufficient to justify the
issuance of an arrest warrant.
I must say, however, that the practice of rubber stamping the signature
of the issuing magistrate on arrest warrants leaves much to be desired. The
Hickman case notwithstanding, it seems to me that a warrant for the arrest
of an individual is of sufficient importance to merit the personal signature of
the issuing magistrate. If pleadings filed in court must bear the individual per-
sonal signature of the attorney, then I see no reason why a warrant of arrest
should not bear the personal signature of the magistrate. This in my opinion
would be the better practice.
AS TO QUESTION 2:
Question 2 is answered in the negative. The only exception to this con-
clusion would be if, and only if, such clerk was empowered by statute to do
so. The general rule is found in 5 Am. Jur. 2d 10, p. 703:
While the power to issue warrants is most frequently executed
[sic] by justices of the peace and police magistrates, it can be con-
ferred by statute on other officials. Although this power implies the
power and duty to hear and determine probable cause, it is not such
a judicial power that it cannot, for example, be conferred by statute
on clerks of court.
The decision in Shadwick v. City of Tampa, Fla. 2 D.C.A., 1970, 237
So.2d 231, is in harmony with the above-quoted rule. There, the Second Dis-
trict Court of Appeal held: that the decision whether to issue a warrant
is, at most, quasi-judicial and not within the 'judicial power' reserved by the
constitution to the judicial branch." However, I know of no statute authorizing
the clerk of a justice of the peace court to issue warrants, i.e., to make a
determination of probable cause or authorizing or empowering a justice of the
peace to delegate this authority to the clerk of his court. I am attaching a
copy of AGO 068-61 rendered by my predecessor in office with whom I agree.
AS TO QUESTION 3:
This question is answered in the negative. 80 C.J.S., Sheriffs and Consta-
bles, 122, p. 330, states the governing rule:
It is a well-established general rule that the process, judgment,
or order of a court having apparent jurisdiction, if valid on its face,
affords complete protection to a sheriff or constable from liability
for any proper or necessary act done in its execution.
*




68 ANNUAL REPORT OF THE ATTORNEY GENERAL



The general rules with respect to the protection of the officer,
and the exceptions to, and qualifications of, such rules, have been
applied to warrants of arrests search warrants . Id.
at 333.
See also O'Brien v. Food Fair Stores, North Dade, Inc., Fla. 3 D.C.A., 1963,
155 So.2d 838. It must be understood that the above answer is based on the
assumption that the warrants were fully executed and facially valid when
placed in the hands of the constable for service.


071-41-March 22, 1971
PEACE OFFICERS
POLICE OFFICERS-USE OF FORCE FELONY ARREST
To: Bernard L. Garmire, Chief of Police, Miami
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTIONS:
1. Does a police officer have the authority to use deadly force
to apprehend a fleeing unarmed felon, as a last resort, to prevent
his escape?
a. When the crime involved was against person or persons.
b. When the crime involved was against property.
2. Does a police officer have authority to use deadly force to
apprehend an armed, fleeing felon, as a last resort, to prevent his
escape even though the felony was merely a crime against property?
3. Is the police officer under a legal duty and is it legally man-
datory that, as a last resort, the police officer employ deadly force
to prevent the escape of a fleeing felon?
a. For crimes against property.
b. For crimes against persons.
4. Can a police chief narrow the scope of the lawful authority
of a police officer to use deadly force given under state law?
a. Police officer can use deadly force only in defense of life.
b. Police officer can use deadly force to apprehend fleeing fel-
ons only when the crime is against persons, setting out examples:
robbery, rape and so forth; and restrict the police officer from using
deadly force when the felony is only a crime against property.
5. If the chief of police does restrict the authority of the police
officer, as set out in question 4, and the officer violates the chief's
order and the chief disciplines the officer for the same, will the dis-
ciplinary action by the police department be upheld in the courts?
SUMMARY:
A police officer has the right to use deadly force, even to the
extent of taking the life of the resisting or escaping felon, as a last
resort, when the officer has reason to believe the person pursued has
committed or is committing a felony, although courts insist that no
more force than is reasonably necessary may be used, especially as
to unarmed felons.
First, briefly reviewing the law relating to the right of a peace officer,
which term includes a municipal police officer, to use force in arresting for
a felony:
Certain provisions of 901.15, F. S. (1970 Supp.), authorize a peace offi-
cer to arrest without a warrant when the arrested person has committed a fel-




ANNUAL REPORT OF THE ATTORNEY GENERAL 69


ony in the presence of the officer or when the officer reasonably believes that
a felony has been or is being committed and reasonably believes that the per-
son to be arrested has committed or is committing it.
Dixon v. State, Fla. 1931, 132 So. 684, involved a situation in which offi-
cers were pursuing an automobile in an effort to arrest the driver for larceny
of the automobile, a felony, and while so doing shot and wounded an occupant
of said automobile. In that case, the Supreme Court of Florida said:
Conceding, for the purposes of this discussion only, that defen-
dants had authority to make the arrest of the occupants of the pur-
sued car without a warrant, such authority included the lawful power
to use such force as they then had reasonable cause to believe, and
did believe, was necessary, to make the arrest; but it included the
right to use no more, and the use of any greater force was beyond
the scope of their authority, unauthorized, and without justification.
Here too, the measure of necessary force is generally considered to
be that which an ordinary prudent and intelligent person, with the
knowledge and in the situation of the arresting officer, would have
deemed necessary. See C.J. 424, 59; 1 Bishop's New Criminal Proce-
dure, 159; State v. Boggs, 87 W.Va. 738, 106 S.E. 47, 18 A.L.R. 1360,
and notes 1368. (Emphasis supplied.)
The amount of force which an officer may lawfully use in mak-
ing an arrest is so much as is necessary to accomplish his object;
and, where he is charged with exceeding that limit, the jury must
judge of the necessity, and not the officer. If the amount used is
more than the occasion requires, he is criminally liable for the excess.
Patterson v. State, 91 Ala. 58, 8 So. 756.
City of Miami v. Nelson, Fla. 3 D.C.A. 1966, 186 So.2d 535, was a case
in which police officers shot and wounded Nelson while attempting to appre-
hend him for the felony of attempted breaking and entering and in which the
city and the' officers were sued for damages caused by the wound thus inflict-
ed on Nelson. In that case, the District Court of Appeal for the Third District
of Florida said:
Having reasonable grounds to believe J. C. Nelson had committed
a felony, the officers were entitled to use force which was reasonably
necessary to capture him, even to the extent of killing or wounding
him. See: 6 C.J.S. Arrest 13, p. 613; Commonwealth v. Bollinger,
198 Ky. 646, 249 S.W. 786. (Emphasis supplied.)

This statement by the district court of appeal was referred to with approval
by the Supreme Court of Florida in Gordon v. Alexander, Fla. 1967, 198 So.2d
325, 326-327. In the said case of Gordon v. Alexander, a police officer shot
and wounded Alexander, whom he was attempting to arrest for breaking and
entering, a felony. Alexander brought a suit for damages against the officer
and the city. The Supreme Court held that under the circumstances shown
Alexander was not entitled to recover any damages.
We also quote from 6 C.J.S. 613, Arrest, 13b, as follows:

In making an arrest for a felony a peace officer or private person
may use such force as is necessary to effect an arrest or to overcome
resistance to the arrest, even to the extent of taking the life
of the resisting or escaping felon; and this is true, even though the
life of the person making the arrest has not been endangered. .
(Emphasis supplied.)

Section 901.17, F. S. (1970 Supp.), provides that:




70 ANNUAL REPORT OF THE ATTORNEY GENERAL



A peace officer making an arrest without a warrant shall inform
the person to be arrested of his authority and the cause of arrest
except when the person flees or forcibly resists before the officer has
an opportunity to inform him or when giving the information will
imperil the arrest.
Now, we will proceed to answer your questions.
AS TO QUESTION 1:
A police officer has the authority to use deadly force to apprehend a flee-
ing unarmed person, as a last resort, when the officer reasonably believes that
the person to be apprehended has committed or is committing a felony, pro-
vided that 901.17, F. S., is fully complied with, and provided further that
no more force is used than is reasonably necessary to apprehend such person.
This is so regardless of whether the felony involved is against a person or
persons or is against property.
AS TO QUESTION 2:
What has been said above in answer to question 1 with respect to an un-
armed felon also applies to an armed felon.
AS TO QUESTION 3:
In 80 C.J.S. 211-212, Sheriffs and Constables, 42a, it is said:
The duties of a sheriff are in a large measure the same
as are imposed on police officers; he necessarily exercises police
powers and must enforce the laws enacted for the protection of the
lives, persons, property, health, and morals of the people. Accord-
ingly, a sheriff must enforce the criminal law. He is under a legal
duty to investigate crimes, to suppress them, and, in a proper case,
to arrest and prosecute persons who commit them . (Emphasis
supplied.)
Therefore, it appears that a sheriff has the legal duty to arrest persons in
proper cases. Such cases include those in which the sheriff reasonably believes
that a person has committed or is committing a felony. When it is the sheriff's
legal duty to arrest for a felony, he necessarily has the legal duty to use such
force as is necessary to make the arrest, even if it be deadly force.
Like a sheriff, a municipal police officer is a peace officer. He has the
same duty to arrest for felony within his municipality that the sheriff has
throughout the county. Consequently, a municipal police officer has the legal
duty to use deadly force when it is necessary to do so in order to carry out
his duty to make a lawful arrest for felony. This is true without regard to
whether the felony has been committed against a person or persons or against
property.
AS TO QUESTION 4:
Since I am of the opinion that it is the legal duty of a police officer to
use deadly force under the circumstances stated above, I do not think that
a chief of police can properly narrow the scope of the officer's authority to
do so by directing that he use deadly force only in defense of life or for
the purpose of apprehending a fleeing felon whose crime is against persons
rather than against property.
AS TO QUESTION 5:
If the chief of police undertakes to restrict the authority of a police officer
to carry out his legal duty, contrary to the views expressed in answer to ques-
tion 4, and if the officer violates the chief's order and the chief disciplines






ANNUAL REPORT OF THE ATTORNEY GENERAL 71


him for so doing, I do not believe that such disciplinary action should or
would be upheld in the courts.

071-43-March 24, 1971
PUBLIC OFFICERS
DUAL OFFICE HOLDING-RESIGN-TO-RUN LAW
To: Randolph Hodges, Executive Director, Department of Natural Resources,
Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Is a member appointed to a state park advisory council pur-
suant to 592.10, F. S., considered to be a public official, and thus
barred from simultaneously holding another public office as set forth
in Art. II, 5 of the State Constitution?
2. Is a member of a state, park advisory council considered to
be holding an appointive office, as defined in 99.012(2), F. S., and
thus subject to the restrictions on individuals qualifying for public
office as set forth in 99.012, F. S.?
SUMMARY:
A member of a state park advisory council is not a public officer
in the sense that would disqualify him from also holding an elective
or appointive public office, or require him to resign to run for a
public office.
AS TO QUESTION 1:
In Advisory Opinion to the Governor, Fla. 1941, 1 So.2d 636, the Supreme
Court held that a member of the State Planning Board was a state "officer"
within the dual-office prohibition, even though the members of the board were
authorized to act only in an advisory capacity. In so holding, the court noted
that the members of the board were appointed by the governor, served a fixed
term of office, performed duties imposed upon them by statute, and were
authorized to "expend public funds appropriated for that purpose in the dis-
charge of [their] duties, exercising [their] own discretion in that regard." The
court concluded that "powers and attributes of sovereignty are delegated to
or reposed in the State Planning Board" by the statute.
Here, however, the members of the advisory council in question cannot,
by any stretch of the imagination, be said to have been vested with sovereign
powers and duties. Section 592.10, F. S., provides for their appointment by
the Division of Recreation and Parks to serve without compensation at the plea-
sure of the division in a purely advisory capacity. They have no authority to
expend public funds nor to exercise in any manner whatsoever the "sovereign
power" of the state; and, in my opinion, they are not public "officials" within
the dual-office prohibition, Art. II, 5, State Const.
AS TO QUESTION 2:
I have the view that membership in a purely advisory body such as that
here in question is not within the purview of the resign-to-run law, 99.012,
F. S. As noted above, there would be no constitutional inhibition against hold-
ing a public office, so that the official in question would not be required to
resign his membership on the council if he were appointed to fill a vacancy
in a public office. In Holley v. Adams, Fla. 1970, 238 So.2d 401, in upholding
the validity of 99.012, supra, the Florida Supreme Court said that:





72 ANNUAL REPORT OF THE ATTORNEY GENERAL


The acceptance of an incompatible office by one already holding
office operates as a resignation of the first. In the absence of Ch.
70-80 [Section 99.012, supra], Holley would have been required to re-
sign as circuit judge in the event he were elected and assumed the
duties of a Justice of the Supreme Court. See State ex rel. Fair v.
Adams, supra [139 So.2d 879]. Ch. 70-80 simply extends the rule of
resignation or abandonment of office to those who become candi-
dates for another office when they already hold one office, the term
of which runs concurrent to the term of office for which he seeks
to qualify.
I have not overlooked the decision of the Fourth District Court of Appeal
in Orange County v. Gillespie, Fla. 4 D.C.A. 1970, 239 So.2d 132, in which
it was held that a member of the East Central Regional Planning Council was
required to resign before running for a state office, even though the duties
of the regional planning council were advisory only. The court noted that the
duties of the regional planning council were the same on a regional level as
those of the State Planning Board on the state level and concluded that the
decision in Advisory Opinion to the Governor, supra, 1 So.2d 636, holding
that members of the State Planning Board were state officers within the dual-
office prohibition, was dispositivee" of the question of whether members of
the regional planning council were appointive "officers" within the intend-
ment of the resign-to-run law, 99.012, supra. Thus, it appears that the decision
in that case was based on the fact that the members of the regional planning
council were found to be "officers" exercising sovereign powers and duties who
would, perforce, be prohibited from holding another public office under the
inhibition of Art. II, 5, State Const.
Since, as noted above, the members of the advisory body here in question
are not public "officers" within the dual-office prohibition of the constitution
and would not be prohibited from holding a public office if appointed thereto,
I have the view that they are not required to resign as a member of the
advisory body as a prerequisite to running for a public office.

071-44-March 24, 1971
LEGISLATURE
REAPPORTIONMENT SESSIONS FOR CONGRESSIONAL AND STATE
LEGISLATURE-TIME OF HOLDING
To: Wilbur Boyd, State Senator, Palmetto
Prepared by: Stuart L. Simon, Deputy Attorney General
QUESTION:
When may congressional and state legislative reapportionment ses-
sions be held by the Florida Legislature following the certification
on December 30, 1970, of that portion of the 1970 census relating
to Florida?
SUMMARY:
State legislative action for congressional reapportionment may be
formally taken during the 1972 session, but the legislature may work
on and consider any plan of reapportionment in the meantime, al-
though if it does not act before qualifying time for the 1972 elections,
Florida's three additional congressmen may have to run at large.
The pertinent organic language is to be found in Art. III, 16(a) of the
State Constitution in these words:






ANNUAL REPORT OF THE ATTORNEY GENERAL 73


(a) SENATORIAL AND REPRESENTATIVE DISTRICTS. The
legislature at its regular session in the second year following each
decennial census, by joint resolution, shall apportion the state in ac-
cordance with the constitution of the state and of the United States
into not less than thirty nor more than forty consecutively numbered
senatorial districts of either contiguous, overlapping or identical terri-
tory, and into not less then eighty nor more than one hundred twenty
consecutively numbered representative districts of either contiguous,
overlapping or identical territory. Should that session adjourn without
adopting such joint resolution, the governor by proclamation shall
reconvene the legislature within thirty days in special apportionment
session which shall not exceed thirty consecutive days, during which
no other business shall be transacted, and it shall be the mandatory
duty of the legislature to adopt a joint resolution of apportionment.
In our opinion, although the joint resolution relating to state legislative
apportionment must be formally adopted by the legislature during the 1972
regular session, there is nothing to prohibit the legislature, or either house
thereof, from working on, considering, debating, or informally approving any
plan of state legislative apportionment between the present time and the date
on which the joint resolution is formally adopted during the 1972 regular
session.
Furthermore, there is no language in the State Constitution or in chapter
8 of our statutes setting forth the date on which there must be a reapportion-
ment of Florida for federal congressional purposes. We therefore conclude that
a statute providing for the apportionment of Florida into 15 equally populated
congressional districts can be enacted at almost any time by the legislature,
pursuant to federal statute. However, it is our opinion that it should not be
enacted and put into effect any later than the beginning of the qualifying
period in which candidates are required to qualify for these congressional seats
in the primary elections of 1972. Were the apportionment to occur subsequent
to such date, Florida might well be required to elect the three additional
congressmen to which it is entitled on an "at large" basis. This is because of
2a, Title 2, The Congress, in U.S.C., which states:
2a. Reapportionment of Representatives; time and manner; existing
decennial census figures as basis; statement by President; duty of
clerk.
(a) On the first day, or within one week thereafter, of the first
regular session of the Eighty-second Congress and of each fifth Con-
gress thereafter, the President shall transmit to the Congress a state-
ment showing the whole number of persons in each State, excluding
Indians not taxed, as ascertained under the seventeenth and each sub-
sequent decennial census of the population, and the number of Repre-
sentatives to which each State would be entitled under an apportion-
ment of the then existing number of Representatives by the method
known as the method of equal proportions, no State to receive less
than one Member.
(b) Each State shall be entitled, in the Eighty-third Congress
and in each Congress thereafter until the taking effect of a reappor-
tionment under this section or subsequent statute, to the number of
Representatives shown in the statement required by subsection (a) of
this section, no State to receive less than one Member. It shall be
the duty of the Clerk of the House of Representatives, within fifteen
calendar days after the receipt of such statement, to send to the
executive of each State a certificate of the number of Representatives
to which such State is entitled under this section. In case of a vacan-
cy in the office of Clerk, or of his absence or inability to discharge





74 ANNUAL REPORT OF THE ATTORNEY GENERAL


this duty, then such duty shall devolve upon the Sergeant at Arms
of the House of Representatives; and in case of vacancies in the
offices of both the Clerk and the Sergeant at Arms, or the absence
or inability of both to act, such duty shall devolve upon the Door-
keeper of the House of Representatives.
(c) Until a State is redistricted in the manner provided by the
law thereof after any apportionment, the Representatives to which
such State is entitled under such apportionment shall be elected in
the following manner: (1) If there is no change in the number of
Representatives, they shall be elected from the districts then pre-
scribed by the law of such State, and if any of them are elected
from the State at large they shall continue to be so elected; (2) if
there is an increase in the number of Representatives, such additional
Representative or Representatives shall be elected from the State at
large and the other Representatives from the districts then prescribed
by the law of such State; (3) if there is a decrease in the number
of Representatives but the number of districts in such State is equal
to such decreased number of Representatives, they shall be elected
from the districts then prescribed by the law of such State; (4) if
there is a decrease in the number of Representatives but the number
of districts in such State is less than such number of Representatives,
the number of Representatives by which such number of districts is
exceeded shall be elected from the State at large and the other
Representatives from the districts then prescribed by the law of such
State; or (5) if there is a decrease in the number of Representatives
and the number of districts in such State exceeds such decreased
number of Representatives, they shall be elected from the State at
large.
In order to make our opinion complete, we would also call to your atten-
tion 2c in Title 2 U.S.C., which was enacted as Public Law 90-196, on Dec.
14, 1967, as follows:
2c. Number of Congressional Districts; number of Representatives
from each District.
In each State entitled in the Ninety-first Congress or in any sub-
sequent Congress thereafter to more than one Representative under
an apportionment made pursuant to section 2a(b) of this title, there
shall be established by law a number of districts equal to the number
of Representatives to which such State is so entitled, and Represen-
tatives shall be elected only from districts so established, no district
to elect more than one Representative (except that a State which is
entitled to more than one Representative and which has in all previ-
ous elections elected its Representatives at Large may elect its Repre-
sentatives at Large to the Ninety-first Congress).


071-45-March 25, 1971
ELECTIONS
MUNICIPAL CANDIDATES' COMPLIANCE WITH 99.161, F. S.
To: William C. Strode, City Attorney, Sarasota
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Are candidates for municipal office required to comply with all
the requirements of 99.161, F. S.?






ANNUAL REPORT OF TIE ATTORNEY GENERAL 75


SUMMARY:
Candidates for municipal office are required to comply with all
the requirements of state election laws relating to reporting campaign
contributions and expenditures.
Section 99.161, F. S., applies in terms in many of its subsections to "po-
litical offices." According to Webster, a political office is one that pertains to
government or the conduct of government. The office of city councilman is
no less a "political" office than that of county commissioner-it simply relates
to a different governmental entity. As originally enacted, 99.161 expressly ex-
cluded candidates for municipal office from the purview of the act. See Ch.
26819, 1951, Laws of Florida. The exemption clause has now been deleted by
Ch. 70-65, Laws of Florida; and, in my opinion, it necessarily follows that the
legislature intended that candidates for municipal office must comply with
all the requirements of 99.161, F. S.
It is true that 99.161(11), F. S. (the former exemption clause), as amended
by Ch. 70-65, supra, now provides only that "Each candidate for municipal
office or his campaign treasurer shall file the information required by this sec-
tion with the officer before whom said candidate qualified." However, it
would seem that this section was adopted for the purpose of avoiding the re-
quirements of subsection (8)(c) of 99.161 that a duplicate copy of the report
of campaign contributions and expenses be filed with the clerk of the circuit
court; and it is not, in my opinion, indicative of a legislative intent to subject
candidates for municipal office only to the requirements of subsection (8),
supra, respecting the filing of the reports of campaign contributions and ex-
penses. This interpretation is in accord with that of the Division of Elections
of the Department of State-the administrative body charged with the responsi-
bility for enforcing the act at the state level-which is, of course, entitled to
great weight.

071-46-March 25, 1971
ELECTIONS
FILING FEES-INDEPENDENT CANDIDATES-DISPOSITION
To: Richard Stone, Secretary of State, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
To whom should the filing fees paid by a candidate who runs
for office as an "independent" be remitted?
SUMMARY:
Filing fees from candidates for public office who run as "inde-
pendent" should be paid to the state general fund.
The filing fees required by 99.092, F. S., to be paid to the Department
of State are remitted by that department to the respective state executive com-
mittees of political parties and to the general revenue fund of the state. (99.-
103, F. S.) It goes without saying that, in the absence of statutory authority,
the department could not require a lesser amount as the filing fee of an inde-
pendent candidate; nor could an amount proportionate to the amount remitted
to the state executive committee in the case of political party candidates be
turned back to the independent candidate in the absence of such authority.
Thus, the entire amount of the filing fee of independent candidates should be
turned over to the only other recipient thereof designated in the statute-the
general revenue fund.




76 ANNUAL REPORT OF THE ATTORNEY GENERAL



While the following discussion might be academic, in view of the lack of
statutory authority noted above, it might be noted that there is some expense
in connection with the placing of the names of independent candidates on the
ballot. Moreover, the expense is not the whole reason for requiring a candidate
for public office to pay a filing fee: The interest of the state in having only
serious, good faith candidates place their names on the ballot is an additional
reason for such fees. See Bodner v. Gray, Fla.1961, 129 So.2d 419. Accord:
Fowler v. Adams, D.C.1970, 315 F.Supp. 592, 594, in which the federal court
noted that Florida's filing-fee requirement "is not an additional qualification to
hold office but is simply a regulatory measure designed to insure fair and
orderly elections."

071-47-March 25, 1971
TAXATION
OCCUPATIONAL LICENSE TAX-APPLICATION TO NURSES
AND PHARMACISTS
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: John N. Hogenmuller, Assistant Attorney General
QUESTIONS:
1. Are the provisions of 205.461, F. S., which require those en-
gaged in the practice of a profession to obtain an occupational license
applicable to registered nurses and pharmacists?
2. If either nurses or pharmacists are subject to occupational li-
cense taxes under 205.461, F. S., would those whose practice is con-
fined solely to work as an employee of a federal, state, county or
municipal government also be liable?
SUMMARY:
Nurses and pharmacists are not required to obtain occupational
licenses to practice their profession.
The question of whether nurses are required to obtain an occupational
license under Ch. 205, F. S., was considered by the Florida Supreme Court
in the case of Lambert v. Mullan, Fla. 1955, 83 So.2d 601. It was pointed out
in the Lambert case that nurses were formerly subject to occupational license
taxation under Ch. 14491, 1929, Laws of Florida, which reads: "Each trained
nurse, holding a certificate as such shall pay a license tax of $10.00." Also
existent at the time nurses were specifically subject to occupational license taxa-
tion was a predecessor of the current 205.461, F. S., dealing with the licensing
of professional people.
The 1937 Session of the Legislature enacted Ch. 18011, 1937, Laws of Flor-
ida, which constituted a general revision of the occupational license tax laws.
Section 38 of said act expressly repealed Ch. 14491, 1929, Laws of Florida,
dealing with occupational licenses for nurses. After considering the legislative
history set forth above, the Supreme Court said:
The similarity of said Section 205.52, F. S., F.S.A. with its prede-
cessor Section 15(i) of Chapter 14491, supra, is readily apparent be-
cause each levied similar occupational tax against the practitioners of
any profession. Accordingly our decision construing the predecessor
act in the case of Lee v. Gaddy, 133 Fla. 749, 183 So. 4, 5, is ap-
plicable here. The question decided in that case was whether a phar-
macist should be construed to be engaged in the practice of a pro-
fession so as to render him liable for the occupational license tax imposed





ANNUAL REPORT OF THE ATTORNEY GENERAL 77


by said Section 15(i) of Chapter 14491, supra, against persons prac-
ticing a profession. Lambert v. Mullan, supra, at 603.
The court went on to quote with approval from the Lee case:
While holding that pharmacy is a profession, we think that
the legislature did not intend to impose a license tax upon those
so engaged, nor upon school teachers, journalists, Ministers of the
Gospel, musicians, ball-players or other professional entertainers,
against whom no license tax has ever been heretofore levied in this
State. Lambert v. Mullan, supra, at 604.
Having cited with approval the Lee v. Gaddy case holding pharmacists
not liable for occupational license taxes, the Supreme Court then considered
the action of the 1937 Legislature in repealing the licensing provision for nurses
and concluded:
When such 1937 session of the legislature set about to revise the
occupational tax laws it is presumed to have been fully aware of the
preexisting legislative determination made by the former 1929 session
that trained, or professional, nurses were not, and should not, be con-
strued to be, in the category of "professional" persons for occupa-
tional tax purposes. Such exclusion appears to have been recognized
as logical and well settled up to that time. We fail to discern any
intention of the 1937 Legislature to change or recede from that fully
warranted exclusion of registered nurses from the limited scope of
such professional persons as were required to pay the occupational
license imposed by the act in question. Under the circumstances
shown we do not believe the legislature intended said act to encom-
pass or include petitioner, or other registered nurses practicing in this
state, in the classifications of persons to be taxed thereunder .
(Emphasis supplied.) Lambert v. Mullan, supra, at 604.
Thus, the Supreme Court in addition to holding that nurses are not liable
for occupational license taxes reaffirmed their earlier decision in Lee v. Gaddy
which excluded pharmacists from the occupational license tax provisions. It is
my opinion that subsequent legislative enactments do not call for a different
result than that reached in the earlier cases.
In 1967, the occupational license tax dealing with professions was amended
and renumbered as 205.461(1), F. S. This section now provides in part:
Every person engaged in the practice of any profession, who of-
fers his service either directly or indirectly to the public for a con-
sideration, whether or not such endeavor be regulated by law, shall
pay a license tax of fifteen dollars for the privilege of practicing,
which license shall not relieve the person paying same from the pay-
ment of any license tax imposed on any business operated by him.
(Emphasis supplied.)
The addition of the language, "who offers his service either directly or indi-
rectly to the public for a consideration," as well as the substitution of the word
"endeavor" for the word "profession" is not sufficient to hold nurses and phar-
macists liable for occupational license taxes in light of the existing Florida Su-
preme Court opinions.
In view of the response to question 1, it is unnecessary to answer question
2.





78 ANNUAL REPORT OF THE ATTORNEY GENERAL



071-48-March 29, 1971
TAXATION
EFFECT OF ARBITRATION AWARD-194.033, F. S.-TAX
COLLECTOR-TAX ASSESSOR
To: John W. McWhirter, Jr., Assistant County Attorney, Tampa
Prepared by: W. E. Bishop, Jr., Assistant Attorney General
QUESTION:
Must a tax collector refrain from advertising and selling tax certif-
cates on property upon which a taxpayer has successfully obtained
an arbitration award pursuant to 194.033, F. S., reducing the assess-
ment upon said property, and the taxpayer has paid the taxes as re-
calculated by the reduced assessment, where the tax assessor has
failed and refused to correct the assessment roll and tax warrant
thereon to reflect the taxes due pursuant to the arbitration award?
SUMMARY:
A tax collector must refrain from advertising and selling tax certif-
icates on property where the owner has succeeded by arbitration in
having the assessment reduced but the assessor refuses to correct the
roll.
Section 194.015 and 194.032, F. S., as amended by Ch. 70-243, Laws of
Florida, effective June 30, 1970, and applicable to the 1970 tax rolls, provide
for a board of tax adjustment in each county to ". adjust the tax rolls,
hear complaints against individual assessments, hear complaints against denials
of homestead exemption by the tax assessor, and hear disputed or appealed
applications for exemptions from ad valorem taxation."
Section 194.033, F. S. (1970 Supp.), as amended by Ch. 70-243, Laws of
Florida, effective June 30, 1970, and applicable to the 1970 tax rolls, provides
that any taxpayer who is dissatisfied with the action of the board of tax ad-
justment may demand an arbitration. The taxpayer and the board of tax ad-
justment are each to name an arbitrator and the two such appointed arbitrators
are to appoint a third.
Section 194.033, F. S. (1970 Supp.), further provides that a decision by
the arbitrators rendered pursuant to said section, ". shall be final unless
overturned by a court of competent jurisdiction." Your request indicated that
the arbitration award has not been overturned by a court of competent juris-
diction.
Arbitration pursuant to 194.033, F. S. (1970 Supp.), is a statutory remedy
designed to be used in lieu of filing suit in the various circuit courts of this
state in order for taxpayers to challenge assessments upon their property. In
Arnolds Restaurant, Inc. v. Larson, Fla. 3 D.C.A. 1963, 149 So.2d 380, at 381,
the Court stated:
We recognize that arbitration is an important aspect of a modern,
commercial society-fulfilling an important need in settling disputes
without having to resort to the courts. Therefore, whenever possible,
an arbitration award should be considered a final determination. .
An award of the arbitrators rendered pursuant to 194.033, F. S. (1970
Supp.), is binding upon the board of tax adjustment as the board is a party
in the arbitration proceeding by the appointment of its arbitrator. It is there-
fore a binding disposition of the assessment on the property submitted, and
is binding upon the tax assessor and tax collector just as any other decision
by the board of tax adjustment rendered pursuant to 194.032, F. S.






ANNUAL REPORT OF THE ATTORNEY GENERAL 79


It is well settled that the tax assessor is without discretion in performing
the ministerial duty of extending the taxes on the tax roll. State ex rel. Neafie
v. Board of Com'rs. of Everglades D. Dist., Fla. 1939, 190 So. 712; Clements
v. Starbird, Fla. 1943, 12 So.2d 578; Peters v. Hansen, Fla. 2 D.C.A. 1963, 157
So.2d 103. While there are no cases concerning the tax assessor's lack of discre-
tionary authority in obeying an arbitration award pursuant to 194.033, F. S.
(1970 Supp.), it is well settled that the assessor is required to make corrections
as directed by a board of equalization (whose duties are now performed by
a board of tax adjustment). Sanders v. Crapps, Fla.1950, 45 So.2d 484; Hoff-
man v. Land, Fla. 1951, 55 So.2d 806; Dick v. State, Fla. 2 D.C.A. 1963, 153
So.2d 844.
I can, therefore, only conclude that you must refrain from advertising
and selling tax certificates upon property when a taxpayer has successfully ob-
tained an arbitration award reducing the assessed valuation upon his property,
and has paid the amount of taxes as recalculated, notwithstanding the failure
of the tax assessor to correct the assessment roll or modify the tax warrant
issued thereon.
In order for the tax collector to balance his roll, it would appear that
he should note the apparent deficiency upon his errors and insolvencies list
as provided in 197.041, F. S.

071-49-March 29, 1971
STATE AGENCIES
AUTHORITY TO EXECUTE LONG-TERM LEASE FOR CONSTRUCTION
OF PUBLIC BUILDINGS
To: Ralph Davis, Executive Director, Department of Highway Safety and
Motor Vehicles, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May the Department of Highway Safety and Motor Vehicles or
the State of Florida accept, as lessee, long-term leases on county or
municipally owned property, and expend state funds for the con-
struction of buildings to be used by the department for highway
patrol stations, examination and issuance of driver licenses and motor
vehicle titles and tags?
SUMMARY:
The Department of Highway Safety and Motor Vehicles may ac-
cept as lessee long term leases on city or county property and expend
state funds to construct buildings thereon.
As to the proposed lease of county property, 125.38, F. S., provides in
substance that a state agency may purchase or lease from a county any real
or personal property owned by the county and desired by such state agency
"for public or community interest and welfare." It is further provided that the
purchase or lease may be made "at private sale to the applicant for such price,
whether nominal or otherwise, as such board may fix, regardless of the actual
value of such property .. ."
The Department of Highway Safety and Motor Vehicles is unquestionably
a state agency within the purview of the above statute, see 20.24 and 320.-
011, F. S., and the purpose for which the land is to be used is undoubtedly
a public purpose. Agreements for the construction by a public body of a public
project on land leased from a private corporation have been upheld by the





80 ANNUAL REPORT OF THE ATTORNEY GENERAL


Supreme Court as against the contention that such agreements violated the con-
stitutional provision prohibiting the lending of the credit of the state or county
to a corporation or individual, Art. VII, 10, State Const. See State v. City
of Tampa, Fla. 1962, 146 So.2d 100 (a municipal convention center); Koubek
v. Caulfield, Fla. 1968, 213 So.2d 417 (parking facility); and cf. Florida Little
Maj. L. Ass'n v. Gulfport Lion's Little L., Fla. 2 D.C.A. 1961, 127 So.2d 707;
Raney v. City of Lakeland, Fla. 1956, 88 So.2d 148; and Hannah v. Sunrise
Recreation, Fla. 1957, 94 So.2d 597. As noted in AGO 058-9, the state and
its agencies and political subdivisions are not "corporations or associations with-
in the contemplation" of such a constitutional provision.
I have the opinion, therefore, that the proposed lease of county property
and the proposed improvements are for a public purpose and within the au-
thority of the department to undertake.
As to the proposed lease of municipal property: It is assumed that the
city has charter or other special statutory authority to sell or lease property
for a public purpose at a nominal consideration without competitive bidding.
Such statutes have been upheld by the Supreme Court. See Bailey v. City of
Tampa, Fla. 1926, 111 So. 119. This being so, the proposed lease would appear
to be valid under the principles of law discussed above. It might be noted
that leasehold interests of this type for a period of not less than forty years
or the life expectancy of the building, whichever is longer, have received legis-
lative approval for school construction, see 235.055, F. S.; and you might
want to consider this type of provision respecting the term of the lease in
question.
It is assumed that funds have been or will be duly and properly appro-
priated and budgeted for these specific projects, and that the proposed ex-
penditure and construction has been or will be approved by the governor and
the cabinet as the "head" of the department and, in due course, by the Depart-
ment of General Services. (See 20.22, F. S.). A copy of AGO 071-28, relating
to the general question of the expenditure of state funds, is enclosed for your
information.


071-50-March 29, 1971
PEACE OFFICERS
CARRYING WEAPONS-WHEN AUTHORIZED
To: W. D. Joiner, Chief of Police, Gainesville
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
Must a police officer be on "active" duty in order to be entitled
to carry a service revolver?
SUMMARY:
If a police officer is required by rule of the department to be
in possession of a firearm at all times and be subject to duty call
at any time, he may lawfully carry his firearm at any time.
Section 790.051, F. S., reads as follows:
790.051 Exemption from licensing requirements; law enforce-
ment officers.-Law enforcement officers are exempt from the licens-
ing and penal provisions of this chapter when acting at any time
within the scope or course of their official duties or when acting at
any time in the line of or performance of duty. (Emphasis supplied.)






ANNUAL REPORT OF THE ATTORNEY GENERAL 81


The answer to your question depends upon whether a police officer can
be acting in the line of duty even though not on active duty, when he carries
a service revolver.
In State v. Lentz, Ohio 1936, 5 N.E.2d 167, the Supreme Court of Ohio
affirmed a judgment awarding a pension to the dependents of a policeman
who was killed by his own service revolver while he was cleaning it at his
home. Police officers were required to be in possession of their service re-
volvers, whether on active duty or not, and were required to keep them clean
and in good condition. Under the applicable rules and regulations, the police-
man's dependents were entitled to receive a pension only if he died from the
effect of wounds received while in the performance of his duty. The Ohio
Supreme Court held that the policeman was in the performance of his duty
when he received the fatal wounds and said:
The term "duty" is employed in the above rule in its generic
sense. It embraces all manner of duty imposed upon a police officer,
independent of the question of time, place or manner of perfor-
mance, no exception or limitation in that respect having been made
therein. It includes all required police activities, whether performed
on the policeman's beat, at the police station, or elsewhere, whether
while on active tour of duty or not, and whether carefully or negli-
gently performed. (Emphasis supplied.)

A police officer who does an act which, by standing department rule
or order he is under obligation to do, is engaged in the performance
of his duty....
Also, the court in United States v. Denver & R.G.R. Co., 197 Fed. 629 said:
It is doubtful if any definition of the words "on duty" can be
clearer than the words themselves. Manifestly, however, they mean
to be either actually engaged in work or to be charged with present
responsibility for such should occasion for it arise. .(Emphasis
supplied.)
In the light of the foregoing pronouncements, I am of the opinion that
if a valid rule or regulation were adopted requiring the police officers in your
city to be in possession of their service revolvers at all times and making them
subject to call to active duty at any time during the day or night, police of-
ficers would be acting in the line of duty and would be acting lawfully when-
ever they carried their service revolvers (whether concealed or not) when not
on "active" duty.


071-51-March 29, 1971
STATE AGENCIES
DEPARTMENT OF GENERAL SERVICES OWNERSHIP, CUSTODY AND
CONTROL OF COMMUNICATIONS EQUIPMENT AND FACILITIES
To: Chester F. Blakemore, Executive Director, Department of General
Services, Tallahassee
Prepared by: Arthur C. Canaday, Assistant Attorney General
QUESTION:
What is the proper delineation of responsibilities between the
Board of Regents and the Department of General Services under
Ch. 70-327, Laws of Florida?





82 ANNUAL REPORT OF THE ATTORNEY GENERAL


SUMMARY:
The Department of General Services is authorized by law to take
ownership, custody and control of existing educational television
equipment and facilities of the university system.
Chapter 70-327, Laws of Florida, amended 287.25(16), F. S., as follows:
The division of communications of the department of general
services shall have the following powers, duties, and functions:

(16) To take ownership, custody and control of existing commu-
nications equipment and facilities, including all right, title, interest,
and equity therein, to carry out the purposes of this part. However,
the provisions of this subsection shall in no way affect the rights,
title, interest, or equity in any such equipment or facilities owned by,
or leased to, the state or any state agency by any telephone company.
Section 287.26 defines the terms "communications" or "communications sys-
tem" as follows:
Any reference in this part to "communications" or "communica-
tions system" means any transmission, emission, and reception of
signs, signals, writings, images, and sounds of intelligence of any na-
ture by wire, radio, optical, or other electromagnetic systems and
shall include all facilities and equipment owned, leased, or used by
all agencies and political subdivisions of state government.
The above definition clearly includes the "transmission" of "images" by the
"optical electromagnetic systems" which we call television. The law does
not draw distinctions between different types of television.
It is my conclusion, therefore, that the Department of General Services
has the authority to take ownership, custody and control of existing educational
television equipment and facilities of the university system under Ch. 287, part
III, F, S., as amended by Ch. 70-327, Laws of Florida.
It should be stressed, however, that this physical ownership, custody and
control of the equipment in no way authorizes the Department of General Ser-
vices to promulgate educational policies for this state, any more than construc-
tion and alteration of the prison facilities under 944.10, F. S., authorizes the
department to affect correctional policies of the Department of Health and Re-
habilitative Services.
It is clear in all these areas that the user agency must cooperate with the
Department of General Services in insuring that the physical properties (build-
ings or equipment) are of such design, specification, and location to be of the
most beneficial use in carrying out the policies and purposes of the user agen-
cy. This is especially important in the field of public education. The Depart-
ment of General Services is not equipped nor authorized by statute to set edu-
cational policies. To so construe Ch. 287, part III, would be to cast serious
doubts upon its constitutionality, not to speak of raising irreconcilable conflict
with other clear statutory law. (See, e.g., Art. IX, 2, State Const., 1968; 229.-
805, F. S.) In accordance with the established canons of statutory construction
it is the opinion of this office that Ch. 287 should not be so construed. See,
as to presumption of validity, 6 Fla. Jur., Const. Law, 78.
The department, under Ch. 287, does have a proper role in the ownership
and custody of the physical equipment so that the department may, among
other purposes, "coordinate the purchase, lease and use of all communications
services for state government." See 287.25, F. S. This centralized purchasing
and coordination by the department is obviously a legitimate function which
leads to the most economical procurement and efficient use of very high-priced






ANNUAL REPORT OF THE ATTORNEY GENERAL 83


and sophisticated equipment. The statutes are replete with examples of this in-
tent with regard to different types of equipment. (See, e.g., the Florida Gov-
ernmental Reorganization Act of 1969, Ch. 20, F. S., and specifically 20.22(3)
and (5), F. S.; see also Ch. 23, part II, F. S., and Ch. 287, F. S.) Whether
the equipment is aircraft, electronic data-processing equipment, boats or com-
munications equipment, the obvious intent is the same: to vest the procurement
of these very expensive items and the development of an overall plan for their
most efficient use in the department. Equally obvious is the need for the user
agency in all these cases to be the master in formulating its own policies under
the responsibilities charged to it by constitution and statute.
I recognize that such a pleasant-sounding resolution to the problem is
much more easily stated than accomplished. Rules for the procurement and
efficient use of equipment will obviously, if not carefully drawn, infringe upon
legitimate policy determinations of the user agency. This is of course especially
true in the field of education where some very sensitive issues, such as aca-
demic freedom, are of justifiable concern. Some more detailed legislation, par-
ticularly in the field of communications equipment, may be needed.
However, the attorney general's office, after carefully analyzing the specific
statute presented to us for opinion, does not conclude that it would be im-
possible to carry out the plain wording of the act without violating constitu-
tional and statutory grants of power. As reviewed above, the stated purposes
of the Communications Systems Act comport with a general (and legitimate)
intent found in numerous other enactments relating to responsibilities of the
Department of General Services. This office would be most willing to render
legal assistance at the request of either this department or any user agency
as to any specific rules or a particular application of this act. It is my firm
opinion, however, that the phrase "ownership, custody and control" found in
Ch. 287, part III, F. S., refers to educational television equipment as well as
other communications equipment and that this wording refers to physical cus-
tody and physical control, not control over intangible rights or educational
policy.
I feel the question of federal validity of the state law was adequately
treated in the opinion of my predecessor issued Dec. 22, 1970. I do not con-
strue that opinion as holding that assumption of "ownership, custody and con-
trol" of Board of Regents' television equipment by the Department of General
Services violates federal law. Further, this office is of the opinion that Ch.
287, as construed above, does not make it impossible for the Department of
General Services and the Board of Regents, in joint cooperation, to comply
with administrative requirements of the Federal Communications Act.
It is hoped that the above comments are helpful to you in delineating re-
sponsibilities between your department and the Board of Regents under Ch.
287, part III, F. S. In view of your specific question, this opinion did not
treat the effect, if any, of the provisions of Ch. 287 upon governmental units
other than state agencies.

071-52-March 29, 1971
TAXATION
MUNICIPALITY-TAX LEVIES FOR YEAR OF INCORPORATION
To: City Council, Cape Coral
Prepared by: Winifred L. Wentworth, Assistant Attorney General
STATEMENT OF FACT:
Your recent letters on behalf of the City of Cape Coral (created by refer-
endum on Aug. 18, 1970, pursuant to Ch. 70-623, Laws of Florida) recite the





84 ANNUAL REPORT OF THE ATTORNEY GENERAL


assumption of office by the city council on Dec. 3, 1970, after the expiration
of the time for certification of millage.
QUESTION:
May the county tax assessor make a levy for the city at this time
for the year 1970, against taxable real property within the corporate
boundaries, upon certification of the budget of the city for the fiscal
year beginning Jan. 1, 1970?
SUMMARY:
The county tax assessor may not make a tax levy for the city
against taxable real property for the year 1970, since the time for
certifying millage had passed before the council of the newly formed
city had taken office.
The question of property tax levies by a municipality for the year in which
it is incorporated has been considered in connection with creation of a city
incorporating areas covered by preexisting municipalities which were simulta-
neously abolished. Attorney General Opinion 055-108. The conclusion was that
tax liens in that situation were fixed on the preceding Jan. 1 in favor of munic-
ipalities then existing. The inverse proposition is illustrated by the decision in
Thompson v. City of Key West, Fla. 1955, 82 So.2d 749, 752, that lands ex-
cluded from a city during the tax year may be properly taxed on the tax roll
for that year in the absence of a showing of legislative intent to remit taxes
for that year. These same considerations of apparent retroactivity, together with
absence of specific authority for such a levy in the charter or laws, and the
overriding principle that municipal taxing power exists only to the extent ex-
pressly conferred (23 Fla. Jur. 168, 172; Certain Lots v. Town of Monticello,
Fla. 1947, 31 So.2d 905, 908), appear to me to negate the propriety of a levy
in the circumstances now in question.
Among the city's charter provisions described as "necessary to effect the
transition of government under the charter" is that stated in Art. 10, 10.05
of Ch. 70-623:
First year expenses.-the city council, in order to provide moneys
for the expenses and support of the city during its first year of ex-
istence, shall have the power and authority to borrow money to an
amount not exceeding five hundred thousand dollars ($500,000) upon
notes or other obligations of the city at an interest rate not to exceed
that permitted by law to municipalities by the state and payable over
a period of not more than twenty (20) years.
This provision is, of course, subject to the limitations imposed by Art. VII.
12, State Const., 1968. State v. City of St. Augustine, Fla. 1970, 235 So.2d 1.
Taxing power is vested in the city only pursuant to general laws under
the terms of its charter:
3.01 The city shall have all powers ....

(d) To raise funds by taxation and to make such levy upon the
taxable property in the City of Cape Coral as will provide funds nec-
essary for the operation of the city and for such other purposes as
may be provided in general law, pursuant to the general laws of
Florida.
In addition, even assuming such a levy could be expressly authorized, the
period of time prescribed for certification of millages is long past. Section 167.-
433(3), F. S., 1969. The time for such certification has been considered manda-






ANNUAL REPORT OF THE ATTORNEY GENERAL 85


tory. Attorney General Opinion 056-288 and AGO 050-411 Aug. 23, 1950, Bi-
ennial Report of the Attorney General, 1949-1950, p. 244. Opinions involving
general statutory schedules for assessments would in my opinion imply the im-
propriety of a levy at this point. C. D. Utility Corp. v. Maxwell, Fla. 4 D.C.A.
1966, 189 So.2d 643; Homer v. Conn. Gen. Life Ins. Co., Fla. 3 D.C.A. 1968,
211 So.2d 250, cert. disch. 220 So.2d 361. The several provisions of the subject
charter relating to budget procedures also indicate the impossibility of any sub-
stantial compliance under the circumstances presented.
I conclude therefore that the county tax assessor may not at this time
make an ad valorem property tax levy for the year 1970 in behalf of a munici-
pal government organized in Dec. 1970. This conclusion is, of course, without
prejudice to alternate revenue measures which may be available under charter
provisions or general law.


071-53-April 1, 1971
COUNTIES
HOME RULE POWERS-BUILDING AND ZONING CODE-ORDINANCE
To: Alfred 0. Shuler, Attorney, Apalachicola
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May a county adopt a zoning and building code by home rule
ordinance?
SUMMARY:
Counties may adopt building and zoning codes under their home
rule powers of the State Constitution and recent legislation.
Under the constitutional and statutory "home rule" provisions, Art. VIII,
1, State Const., 1968, and 125.65, F. S., the counties of this state now have
all powers of local self-government not inconsistent with general or special law
(as to noncharter counties) or with general law (as to charter counties). The
purpose of these provisions was to redistribute the sovereign power of the state
between the state and the county, with the state reserving the right to legis-
late in fields of general statewide concern and delegating to the local govern-
ments the power to legislate in matters of local concern.
When considered in the light of this basic principle of "home rule," it
seems clear that the general laws authorizing the counties to adopt a building
code (Ch. 63-290, Laws of Florida, 125.56, F. S.) or a zoning and building
code (Ch. 67-310, Laws of Florida, 133.01-133.18, F. S.) do not stand in the
way of the exercise by a county of its home rule powers in the field. Each
statute provides clearly and unequivocally that it is not intended to replace
local legislation in the particular area covered by the statute. See 125.56(6),
F. S., 1969, providing that the act is not to be construed "as affecting any
special or general act of local application heretofore or hereafter adopted or
passed." (Emphasis supplied.) And 133.16, F. S., 1969, declares a similar legis-
lative intent: that the act was not intended to repeal or affect "in any manner
or to any extent whatsoever the provisions of any existing special or local law
or general law of local application, or any existing county ordinance."
It should be noted, also, that Art. VIII 6(d), State Const., 1968, expressly
authorizes a county to repeal or amend, by county ordinance, any local act
existing on the effective date of the 1968 State Constitution that relates only
to the unincorporated area of the county. A special act authorizing the county
to regulate building and zoning in the unincorporated area of the county would





86 ANNUAL REPORT OF THE ATTORNEY GENERAL


unquestionably be subject to amendment or repeal by county ordinance under
this constitutional provision. (It is noted, parenthetically, that AGO 070-55 was
concerned, with a special act authorizing regulation in this field that was appli-
cable also to the municipalities in the county and thus was held to be not
within the purview of Art. VIII, 6(d), supra.)
The statutes in question clearly show that the legislature intended merely
to provide necessary statutory authority for regulatory action by the counties
in the field of zoning and building regulation, and did not intend to supersede
or preclude local action in this field. The legislature has, in effect, said that
zoning and building regulation is not a matter of statewide concern but, on
the contrary, is one that is susceptible to regulation at the local level to meet
the requirements of the particular locality. In these circumstances, to adhere
to the strict letter of the statute would subvert the true purpose and intent
of home rule-that is, to delegate to the counties the sovereign power of the
state to legislate in matters of local concern. Unless and until it is judicially deter-
mined to the contrary, I have the view that the constitutional and statutory
home rule provisions, supra, should not be so interpreted in construing statutes
such as those here in question.

071-54-April 1, 1971
COUNTIES
HOME RULE POWERS-FRANCHISES FOR WATER, SEWER
AND GARBAGE-UTILITY TAX-BOND 790.06, F. S.
To: Ralph B. Wilson, County Attorney, Fort Pierce
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
May a noncharter county, under its "home rule" power:
1. Grant an exclusive or nonexclusive franchise for water, sewer
or garbage collection service?
2. Levy a utility tax on private companies or municipalities pro-
viding utility services in the unincorporated area of the county?
3. Require a bond in an amount other than that prescribed by
790.06, F. S., in issuing a permit to carry a pistol?
SUMMARY:
A noncharter county may grant a franchise for utility services,
in the absence of statutory prohibition, unless it has relinquished its
authority, but a county may not levy a utility tax.
AS TO QUESTION 1:
As noted in AGO 070-55, the authority of a noncharter county to adopt
"home rule" ordinances may not be exercised in a manner that is inconsistent
with a general or special law. Article VIII, l(f), State Const., 1968; 125.-
65, F. S. (1970 Supp.). Thus, in the absence of a general or special law that
expressly, or by necessary implication, prohibits a county from granting a fran-
chise for utilities service, it would seem that the county could do so.
It should be noted, parenthetically, that a county may, by resolution, adopt
the provisions of Ch. 367, F. S. (1970 Supp.), vesting in the Florida Public
Service Commission the jurisdiction to regulate and supervise public utilities,
including the right to issue a certificate of public convenience and necessity
to such private corporation. In this event, the county will, in effect, have re-
linquished to the commission its authority to grant franchises for such services.





ANNUAL REPORT OF THE ATTORNEY GENERAL 87


AS TO QUESTION 2:
Article VII, 1(a) of the State Const., 1968, provides that "no tax shall
be levied except in pursuance of law. .. ." Section 9 of this same Article
provides that counties shall be authorized to levy an ad valorem tax and may
be authorized by general law to levy other taxes for their purposes with certain
exceptions. I know of no general law that authorizes the counties of this state
to levy a county utility tax.
AS TO QUESTION 3:
Section 790.06, F. S., specifies conditions under which a license to carry
a pistol and other firearms may be granted by the county. As noted in AGO
070-55, a "home rule" ordinance may not be inconsistent with a general or
special law.


071-55-April 5, 1971
TAXATION
HOMESTEAD EXEMPTION-U. S. ARMED FORCES
PERSONNEL-APPLICATION
To: Clark Maxwell, Tax Assessor, Titusville
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
1. Is a person serving in the armed forces of the United States
entitled to homestead exemption when he purchases a home in Feb-
ruary and by virtue of military orders is transferred outside the state
in October, thereupon renting out his home to someone else when
he has never had homestead exemption actually granted in Florida
before?
2. Is a person under the same set of circumstances set forth in
question 1, except that he does not rent out his home to someone
else and it therefore remains vacant for the period in question, en-
titled to homestead exemption?
SUMMARY:
A serviceman is entitled to homestead exemption even though
he may be transferred elsewhere during his ownership, and rental of
such property previously impressed with homestead status does not
constitute abandonment for tax purposes.
The above questions must in my opinion be answered in the affirmative,
in light of the governing provisions of Ch. 196, F. S., 1969, subject to qualifi-
cations stated below. Section 196.031, F. S., entitled "Exemption of home-
steads" reads, in pertinent part, as follows:
(1) Every person who has the legal title or beneficial title in equity to
real property in this state and who resides thereon and in good faith
makes the same his or her permanent home shall be entitled
to an exemption from all taxation, except .... (Emphasis supplied.)
In Poppell v. Padrick, Fla. 1960, 2 D.C.A., 117 So.2d 435, the court stated
that:
Once the property has acquired the status of a homestead, this
status would continue until an abandonment has occurred which be-




88 ANNUAL REPORT OF THE ATTORNEY GENERAL


ing dependent upon the intent of the claimant is a question of fact
to be determined in each particular case.
The specific language of 196.031, F. S., and the rationale embodied in
the quoted statement from the Poppell case make it clear that in the usual
situation a claimant need not have previously received homestead exemption
in order to qualify for the exemption in any given year. On the contrary, to
require otherwise would necessarily preclude anyone from ever being entitled
to homestead exemption, since there must always be an original application
filed at some time. In other words, the property becomes impressed with the
particular status of homestead property when the requisite statutory conditions
are met, and such status is not conditional upon a finding that the claimant
has previously received homestead exemption from taxation.
With the above considerations in mind, 196.061, F. S., pertaining to the
rental of a homestead as constituting an abandonment should be considered.
That section reads as follows:

196.061 Rental of homestead to constitute abandonment.-The
rental of an entire dwelling previously claimed to be a homestead
for tax purposes shall constitute the abandonment of said dwelling
as a homestead, and said abandonment shall continue until such
dwelling is physically occupied by the owner thereof provided
further, the provisions of this section shall not apply to a member
of the armed forces of the United States whose service in such forces
is the result of a mandatory obligation imposed by the federal se-
lective service act or who volunteers for service as a member of the
armed forces of the United States .... (Emphasis supplied.)
The issue to be determined in construing 196.061, F. S., is the meaning
of the language "previously claimed to be a homestead for tax purposes." Sec-
tion 196.061 has been the subject of two previous opinions, AGO's 068-1 and
068-33. Both of these opinions dealt with particular facts which are distinguish-
able from the situations now presented. Attorney General Opinion 068-1 limited
its inquiry to the following question: "Is it necessary in order to be entitled
to the benefits of Ch. 67-459, Laws of Florida, that the servicemen who are
either drafted or volunteer for service had previously qualified for homestead
exemption as civilians?" (Emphasis supplied.) The question was quite properly
answered in the negative. Attorney General Opinion 068-33 pertained to the
following inquiry: "Does 192.141, F. S., as amended by Ch. 67-459, Laws of
Florida, pertain to a parcel of property purchased by, but never occupied by,
a service person?" (Emphasis supplied.) This question was also, quite properly,
answered in the negative. However, this opinion also dealt with the following
question: "Is it necessary for the applicant to have previously been a resident
of Florida and previously received homestead exemption?" (Emphasis sup-
plied.) This question was answered in the affirmative, the opinion stating:
"Since 192.141, F. S., clearly contemplates that there had previously been a
homestead in existence, question 2 is answered in the affirmative." The opinion
also stated the following:
It was intended to place all servicemen who answered the call
of their country either voluntarily or involuntarily on an equal footing.
For both of these categories of servicemen the rental of property pre-
viously impressed with the homestead status does not constitute an
abandonment. (Emphasis supplied.)
If 196.061, F. S., is to be so construed as to limit its effect and operation
only to those servicemen who have previously applied for and received home-
stead exemption in the past, then it would appear that this said section might






ANNUAL REPORT OF THE ATTORNEY GENERAL 89


present a serious question as to equal protection of the laws to those service-
men who have not so received homestead exemption and yet whose home or
residence has become "impressed" with a homestead status under 196.031(1),
F. S., and Art. VII, 6, State Const., 1968. In addition, it would accord con-
trolling importance to a fact which has not previously even entered into the
consideration of whether a homestead status has been achieved. The specific
language of 196.061 does not require such a construction. It requires only that
such dwelling be "previously claimed to be a homestead for tax purposes" and
nothing more. It is a reasonable interpretation of such wording that it requires
only that the dwelling be "previously impressed" with a homestead status in
accordance with the statutory and constitutional requirements for such status.
Therefore, to the extent that AGO's 068-1 and 068-33 require or intimate that
before a serviceman can qualify for the exception to 196.061, F. S., he must
have previously applied for and received homestead exemption they are hereby
modified and revised in accordance with the opinion stated herein. Therefore,
question 1 is answered in the affirmative upon the assumption that all other
provisions and requirements of the statutes pertaining to homestead have been
complied with.
In L'Engle v. Forbes, Fla. 1955, 81 So.2d 214, the Florida Supreme Court
stated that the temporary absence of an owner will not deprive a homestead
claimant of his right, unless it appears that there was a design of permanent
abandonment and that such rule applies to the homestead tax exemption priv-
ilege. The court stated that the test to be applied was whether or not the
owner "rightfully and in good faith" considers the dwelling in question to be
the only place which is his or her "permanent home, to the exclusion of all
other places where they may, from time to time, temporarily reside." See
also 196.051, F. S., 1969. Attorney General Opinion 046-376, Aug. 21, 1946,
Biennial Report of the Attorney General, 1945-1946, p. 286 stated that the term
"permanent home" was not to be construed so as to require continuous physical
residence on the homestead property by the claimant, and that occupancy for
any specified part of a year is not required for a homestead claim. In other
words, the primary and dominant factor in each homestead exemption claim
is the intent of the claimant to make the dwelling in question his "permanent
home." Temporary absence, without the intent to permanently abandon the
dwelling as the one and only "permanent home" of the claimant, does not pre-
clude one from claiming and receiving homestead exemption. Once the home-
stead status has accrued and the property has become "impressed" with such
status, that status would continue until an abandonment has occurred, which
is dependent upon the legal intent of the claimant. Poppell v. Padrick, supra.
And, as has already been stated in the course of this opinion, such status does
not depend upon the determination that a homestead exemption has previously
been granted to the claimant upon the property in question. Therefore, upon
the assumption that there has been no permanent abandonment of the property
in question as the "permanent home" of the claimant, question 2 is answered
in the affirmative.

071-56-April 5, 1971
TAXATION
AD VALOREM-RELIGIOUS ORGANIZATION EXEMPTION-
BIBLE CAMP-FILING FOR
To: William J. Haley, County Attorney, Lake City
Prepared by: John N. Hogenmuller, Assistant Attorney General





90 ANNUAL REPORT OF THE ATTORNEY GENERAL



QUESTIONS:
1. Must a bible camp owned by a religious organization, which
does not have a church or house of worship located on the premises,
file for an exemption pursuant to 196.011, F. S., prior to Apr. 1
of each year?
2. If filing is necessary, may a county grant an exemption under
the facts set forth above if the church has not filed for an exemption
by Apr. 1?
3. Once the exemption has been granted, may the tax assessor
automatically grant the religious organization an exemption, or must
the church or religious center which has to file for the exemption
continue to file each year thereafter?
SUMMARY:
A bible camp located on property which does not have a church
or house of worship thereon must file for religious tax exemption
each year, unless the use becomes clearly one of religious purpose.
Section 196.011, F. S., 1969, states:
Annual application required for exemption.-Every person or or-
ganization who has the legal title to real or personal property which
is entitled by law to exemption from taxation as a result of its owner-
ship and use, except property owned and used exclusively for govern-
mental purposes or religious purposes, shall before April 1 of each
year file an application for exemption with the county tax assessor
listing and describing the property for which exemption is claimed
and certifying its ownership and use. The department of revenue shall
prescribe the forms upon which the application is made. (Emphasis
supplied.)
This section provides for an automatic exemption when property is owned
and used exclusively for a governmental or religious purpose, although what
constitutes such a "purpose" is not always clear. Attorney General Opinion 063-
138 provides an analysis of some of the problems concerned with the foregoing
section. After considering several court decisions as well as the pertinent consti-
tutional and statutory sections, Attorney General Ervin concluded:
Where the religious, scientific, municipal, educational, literary or
charitable purposes carried on are clearly, openly and beyond reason-
able doubt carried on on real property in this state, for example, a
church house, a city hall, fire house, etc., a tax return would not
seem to be required unless requested by the Tax Assessor as nec-
essary for the proper description of the property or its use, or both.
Unless a cursory examination of a parcel of property reveals its tax
exempt status, its owner should return the same for taxation clearly
demonstrating its right to tax exemption. A municipality's city hall,
fire station, public library, and other properties whose right to tax
exemption is clearly evident from a cursory examination would need
no tax return to demonstrate their municipal use, and maybe their
description. However, other properties, not clearly entitled to exemp-
tion from a cursory examination, should be returned for taxation.
(Emphasis supplied.)
From the facts presented in your letter, it appears that the property in
question is not clearly used for a "religious purpose" within the purview of
196.191(4), F. S., 1969, which provides:






ANNUAL REPORT OF THE ATTORNEY GENERAL 91


The following property shall be exempt from taxation:

(4) All houses of public worship and lots on which they are sit-
uated, and all pews or steps and furniture therein, every parsonage
and all burying grounds not owned or held by individuals or corpora-
tions for speculative purposes, tombs and right of burial; but any
building being a house of worship which shall be rented or hired
for any other purpose except for schools or places of worship, shall
be taxed the same as any other property.
Your letter specified that there is no house of worship or church on the
premises of the bible camp. Thus, it would seem that the bible camp is not
clearly entitled to an exemption, and it would be best for them to file for
an exemption in order that the tax assessor may consider the factual situation
in its entirety; however, even if the tax assessor concludes that the facts do
not justify the exemption of the property under 196.191(4), F. S., as being
used for religious purposes, it is conceivable that the property might qualify
under 196.191(3), F. S. (1970 Supp.), pertaining to charitable and educational
institutions. See AGO 061-104. In any event, the bible camp in question does
not appear to be clearly exempt and therefore should file for an exemption
in accordance with 196.011, F. S.
The second question can only be answered after resolution of your partic-
ular factual situation.
Assuming that the bible camp in question can qualify for an exempt status
pursuant to 196.191, F. S., your second question inquires whether filing before
April 1, in accordance with 196.011, F. S., is mandatory. The cases of Gamma
Phi Chapter of Sigma Chi Building Fund Corporation v. Dade County, Fla.
1967, 199 So.2d 717 and Jasper v. St. Petersburg Episcopal Community, Inc.,
Fla. 2 D.C.A. 1969, 222 So.2d 479, cert. denied 225 So.2d 921 (1969) offer
guidelines for this question.
In the Jasper case, supra, at 481, the court said:
The provision in F. S. 192.062, F.S.A. that the tax exemption
application shall be filed before April 1 of each year is not manda-
tory in the sense that the party otherwise entitled to such exemption
forfeits the right to claim it, thus barring the right to receive it. .
(Emphasis supplied.)
The court, in Jasper, then went on to find that the particular facts did not
justify finding the taxpayers guilty of laches and allowed their exemption.
In accord with the Sigma Chi and Jasper cases, whether or not laches
is present, thus precluding a party from exemption, must be determined on
the facts of each individual situation. Thus, it is incumbent upon your taxing
authorities to decide whether the bible camp involved herein was guilty of
laches if a prior determination of their exempt status is reached.
In light of the answer to your first question, the bible camp must file
for exemption every year unless the use becomes clearly a "religious purpose"
within the purview of 196.011 and 196.191, F. S.
As discussed fully in the answer to your first inquiry, the use of the bible
camp considered herein is not clearly entitled to an exemption upon the facts
presented. Thus, in accord with AGO 063-138, the camp should file for an
exemption every year unless the use of the property changes to an extent
which clearly brings it within the purview of 196.191(4), F. S.






92 ANNUAL REPORT OF THE ATTORNEY GENERAL


071-57-April 5, 1971
COURTS
JUSTICE OF THE PEACE-COST OF PROCESS-COLLECTION-
939.16, F. S.
To: David F. Patterson, Justice of the Peace, Clearwater
Prepared by: Reeves Bowen, Assistant Attorney General
STATEMENT OF FACT:
Section 939.16, F. S., reads as follows:
"939.16 Prepayment may be required in courts of county judges, etc.-
In all cases justices of the peace and county judges in this state shall require
payment in advance or security for costs of process, service of the same, and
of examination, unless the party applying for a warrant shall make an affidavit
of insolvency and of substantial injury to person or property by him suffered,
in which case process shall issue without payment of costs."
QUESTION:
When a justice of the peace, his constable, and sheriff are
all on a salary basis and derive none of their compensation from fees
in criminal cases, does 939.16, F. S., require a justice of the peace
to take a deposit or security for costs in the criminal cases to which
said statute applies?
SUMMARY:
When a justice of the peace, his constable, and sheriff of a
county are all on a salary basis, they need not take a deposit or
security for costs in criminal cases.
I am informed that the justice of the peace and his constable are on a
salary basis and receive no fees for services in criminal cases. By virtue of
the provisions of 30.48-30.53, F. S., the sheriff of your county is also on
a salary basis. Section 30.51, F. S., is subject to the construction that the county
is not liable to pay fees to a sheriff in criminal cases, but, even if such fees
were paid by the county to the sheriff, they would have to be paid back
into the county treasury under 30.51(5), F. S.
The purpose of 939.16, F. S., is to place on the complaining witnesses,
rather than on the county, the burden of paying costs in cases to which the
statute applies. Since it appears that the justice of the peace, his constable,
and sheriff would not lower the balance in the county treasury by collecting
fees for services in criminal cases to which the statute applies, there would
be no point in exacting a deposit or security for costs in such cases.

071-58-March 31, 1971
PUBLIC OFFICIALS
GOVERNMENT IN THE SUNSHINE-SCHOOL BOARD VIOLATIONS-
VALIDITY OF CONTRACT
To: Chester W. Stolzenburg, State Senator, Fort Lauderdale
Prepared by: Barry Scott Richard, Assistant Attorney General
QUESTIONS:
1. Is the selection of a superintendent of schools by a county




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