Annual report of the Attorney General, State of Florida

ANNUAL REPORT
of the

ATTORNEY GENERAL

STATE OF FLORIDA

January 1 through December 31, 1973

ROBERT L. SHEVIN
Attorney General

Tallahassee, Florida
1974

CONSTITUTIONAL DUTIES OF THE ATTORNEY GENERAL

The revised Constitution of Florida of 1968 sets out the duties of the Attorney
7r 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 operation of
laws of the last previous Session, including decisions of the courts affecting these
laws.

COST DATA
This public document was promulgated at a base cost of $11.57 per book for
1,200 copies for the purpose of providing a permanent compilation and
index of official Attorney General's Opinions.

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

December 31, 1973

LETTER OF TRANSMITTAL

Honorable Reubin O'D. Askew
Governor of Florida
The CAP I TOL

Dear Governor:

I have the honor of submitting to you herewith
the annual report of the Attorney General for the
year 1973. This report is submitted to you by vir-
tue of the constitutional 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.

Most respectfully

ROBERT L. SHEVIN
Attorney General
RLS/p

111

TABLE OF CONTENTS

Page

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

C ost D ata ................................................................................................................ ii

L better of T ransm ittal ............................................................................................. iii

T ab le of C contents ................................................................................... ......... ......... iv

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

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

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

OPINIONS

O p in io n s 1973 .............................................................................................................. 1

REPORTS AND STATISTICS

Cases Handled in Attorney General's Office ....................................................... 823

Moneys Collected by the Department of Legal Affairs ......................................... 824

INDEX AND CITATOR

G general Index ..................................................................................................... 827

Citator to Florida Statutes, Constitution and Session Laws .................................. 899

C itator to O m itted O pinions ................................................................................... 922

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. M E E K .................................................................................................. 1868-1870
SHERMAN CONANT ....................................... 1870-1870
J. P. C. DREW ........................................ 1870-1872
H B ISB E E JR ........................................................................................... 1872-1872
J. P. C. EMMONS ........................................ 1872-1873
WILLIAM A. COCKE ....................................... 1873-1877
GEORGE P. RANEY ........................................ 1877-1885
C. M. COOPER ........................................ 1885-1889
W ILLIAM B. LAM AR .............................................................................. 1889-1903
JAMES B. WHITFIELD ..................................... 1903-1904
W. H. ELLIS ........................................ 1904-1909
PARKTRAMMELL ........................................ 1,909-1913
THOMAS F. WEST ........................................ 1913-1917
VAN C. SWEARINGEN ...................................... 1917-1921
RIVERS BUFORD ........................................ 1921-1925
J. B. JOHNSON ........................................ 1925-1927
FRED H DAVIS .................................................................................... 1927-1931
CARY D. LANDIS ........................................ 1931-1938
GEORGE COUPER GIBBS ..................................... 1938-1941
J. TO M W AT SO N ..................................................................................... 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

ADMINISTRATIVE ADMINISTRATIVE
ASSIISTART ASSISTANT
Ann Wainwright Dick Beagley

DEPUTY
ATTORNEY GENERAL

James T. lack I L.L. Wainwright.,Jr. Lou Deal Judge Reeves Iow Dn Dan Dearng

PERS0NEL L CABINET RESEARCH AND ASSIGNMENT AND CRIMINAL LAW ENFORCZE"ET OGEERAL ADMINISTRATIVE Awl TRUWT
PERSONAL N... T MATTERS UGET DRAFTING DOCKETING APPEALS EDUCATION CIVIL LAW LAN
LIAISON AFFAIRS Ji Etheridge Rebecca Hawkins EIther Wilfong George Georgieff Raymond Marky LITIGATION Halley Lewis

G T HDr T I ENVIRONMENTAL PUBLIC UTILITIES TAX IAN
LEISLATIV LEGISLATIVE LI LAN LAW Winfrd north
LIAISON RECOMMENDATIONS Jaes rindell Scott Mabors

DIVISION OF PUBLIC AFFAIRS DIVISION OF
CONSUMER PROTECTIOn OFFICER INVESTIGATIONS
AND FAIR TRADE James T. Barrett Tony Smllgen

OFF I C E S -

CAPITOL OFFICE CENTRAL FLORIDA OFFICE WEST FLORIDA OFFICE SOUTH FLORIDA OFFICE
TALAHASSEE WEST PALM BEACH TAPA MIAMI
Nelron allry s yav M. Harrison III J. Robert Ottn

DEPARTMENT OF LEGAL AFFAIRS
The Capitol, Tallahassee 32304 (904)488-5861

ROBERT L. SHEVIN
Attorney General
BAYA HARRISON
Deputy Attorney General

ASSISTANT ATTORNEYS GENERAL
Wallace E. Allbritton J. D. Boone Kuersteiner
Bjarne B. Andersen Guy Labalme
Nelson E. Bailey Paul W. Lambert
Richard Bennett Robert Landry
C. Marie Bernard Peter F. LaPorte
Richard C. Booth Halley B. Lewis
Reeves Bowen, Chief Andrew W. Lindsey
Criminal Division Raymond L. Marky
James R. Brindell S. Strom Maxwell
Arthur C. Canaday Joseph C. Mellichamp III
William R. Cave Stephen Mitchell
Charles Corces, Jr. Scott R. Nabors
Michael M. Corin Sam R. Neel
H. Tucker Cotten Dr. J. Robert Olian
E. Wilson Crump II W. Robert Olive, Jr.
Louis C. Deal Jerry E. Oxner
Stephen F. Dean P. A. Pacyna
Daniel S. Dearing, Michael M. Parrish
Chief Trial Counsel Richard Pippinger
Richard Pippinger
Basil Diamond .
Basil Diamond Richard W. Prospect
Joseph R. DeLucca Harold Purnell
Jan A. Dunn
Jan A. Dunn William Rogers
Patricia C. Dunn
Patricia C. Dunn Joel D. Rosenblatt
Howell L. FergusonStephen Rosin
Stephen Rosin
Andrew I. Friedrich Donald K. Rudser
Donald K. Rudser
Arthur C. Fulmer .
Arthur C. FulDenise D. Schwartzman
George R. Georgieff Frederick Scott
Arnold R. Ginsberg Glenn N. Smith
William R. Hanley .
William R. Hanley Carolyn Snurkowski
Baya M. Harrison III J. Kk
J. Kendrick Tucker
Rebecca Bowles Hawkins James M. W ace
James M. Wallace
William W. Herring Victor Walsh
Linda C. Hertz
Linda C. Hertz Winifred L. Wentworth
Kenneth F. Hoffman J s D.
James D. Whisenand
John P. Ingle William P. White, Jr.
Fred Johnson
Fd JohnsonEnoch J. Whitney
A. S. Johnston David L. Woodward
Frank B. KesslerRoert Woolfork
Robert Woolfork

vii

OF F

iRo bet SL. Sevin
i/z e Capitol
al lahassee

viii

ANNUAL REPORT

of the

ATTORNEY GENERAL

State of Florida

January 1 through December 31, 1973

073-1-January 15, 1973
COUNTY OFFICERS
TAX COLLECTION BY COUNTY COMPTROLLER PERFORMING DUTIES
FORMERLY EXERCISED BY CIRCUIT COURT CLERK
To: J. Ed Straughn, Executive Director, Department of Revenue, Tallahassee
Prepared by: William R. Cave, Assistant Attorney General
QUESTION:
May the Broward County Comptroller lawfully collect the taxes
imposed under 199.032(2), F. S., which are required by 199.052(7)(a),
F. S., to be collected by the clerk of the circuit court, inasmuch as Ch.
72-407, Laws of Florida, vests in the office of the comptroller the duties
of county recorder previously performed by the clerk of the circuit
court?
SUMMARY:
On the effective date of Ch. 72-407, Laws of Florida, the
Comptroller of Broward County will be acting in the place of, and
performing the ex officio duties formerly performed by, the clerk of the
circuit court and may, in the performance of his duties, legally collect the
taxes and transmit same, along with a list of instruments upon which the
taxes were paid, to the Department of Revenue pursuant to
199.052(7)(a) and (e), F. S.
Your question is answered in the affirmative.
Article V, 16, State Const., provides in pertinent part the following:
Notwithstanding any other provision of the constitution, the
duties of the clerk of the circuit court may be divided by special or general
law between two officers, one serving as clerk of court and one serving as
ex officio clerk of the board of county commissioners, auditor, recorder,
and custodian of all county funds. .
Pursuant to the above-cited provision of the State Constitution, the legislature
enacted Ch. 72-407, Laws of Florida, which divides the duties of the Clerk of the
Circuit Court of Broward County, and provides in part as follows:

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073-2 ANNUAL REPORT OF THE ATTORNEY GENERAL

In Broward County there shall be a county comptroller who shall
also be ex officio clerk of the board of county commissioners, county
recorder, auditor, and custodian of county funds and shall perform the
duties thereof as prescribed by law and there shall be a clerk of the circuit
court who shall also be clerk of the county court and shall perform the
duties of clerk of said courts as prescribed by law. (Emphasis
supplied.)
Effective at 11:59 p.m., E.S.T., January 1, 1973, for the purposes of
199.052(7)(a), F. S., the Comptroller of Broward County will be acting in the place
of, and performing the ex officio duties formerly performed by, the Clerk of the
Circuit Court of Broward County, as the ex officio clerk of the board of county
commissioners, auditor, recorder, and custodian of all county funds, pursuant to
Art. VIII,l(d), State Const. Therefore, the Comptroller of Broward County may
legally collect the tax imposed pursuant to 199.032(2), F. S., and transmit to the
Department of Revenue the taxes collected and the list of instruments upon which
such taxes were paid in compliance with 199.052(7)(e), F. S.

073-2-January 15, 1973
PROBATE AND GUARDIANSHIP
FILING FEES
To: William S. Rowley, Escambia County Judge, Pensacola
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Are fees paid prior to October 1, 1972, in an estate proceeding, by
persons other than the personal representative, to be credited against the
required fee of either $60 or $75 pursuant to 28.2401, F. S.?
SUMMARY:
Filing fees paid prior to October 1, 1972, by persons other than the
personal representative of an estate should be credited against the
amount due from the personal representative as the uniform filing fee
under 28.2401, F. S. 1973.
Your question is answered in the affirmative.
As noted in AGO 072-327, the statutory filing fee required by 36.17, F. S. 1971
[now 28.2401, F. S.], pays for filing and recording all pleadings and other
documents filed in the estate, whether by the personal representative or any other
person. It was held in that opinion also that once a filing fee has been paid and
deposited, it becomes a part of the public funds and may be disbursed only in
accordance with law. It necessarily follows that the fees paid by creditors for filing
their claims become a part of the funds of the office to the credit of the estate and
should be counted in computing the amount to be credited against the uniform
filing fee to be paid by the personal representative of the estate.

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-3

073-3-January 15, 1973
ANTINEPOTISM LAW
EMPLOYMENT OF RELATED PREDECESSOR IN OFFICE
To: Lucille Small, Hendry County Tax Assessor, LaBelle
Prepared by: Halley B. Lewis, Assistant Attorney General
QUESTION:
Is a newly elected tax assessor permitted legally to employ his
mother upon assuming the duties of the office following his election, in
the absence of a showing of an emergency, even though prior to his
assuming the duties of the office he, the son, was employed by his
mother who was then the duly elected and acting tax assessor who did
not seek reelection?
SUMMARY:
Employment of an assistant for his office by a newly elected and
duly acting county tax assessor is prohibited by 116.111, F. S., except on
a temporary emergency basis as prescribed by the antinepotism law
when there exists the relationship of a son and mother between the
proposed employer and the proposed employee.
The answer to the question is in the negative, in the absence of a showing of an
emergency resulting from natural disaster or similar unforeseen events as provided
for by 116.111 (4), F. S., and then only on a temporary basis. As already suggested,
except for an emergency on a temporary basis as prescribed by the antinepotism
law, 116.111, prohibits employment by one county public official of another
when the relation of son and mother exists between the two.
It is well to note that the restraint upon such employment is effective to the
extent that no compensation can lawfully be paid to one employed in violation of
said law.

073-4-January 16, 1973
BAILMENTS
EXEMPTIONS FROM LIABILITY; VALIDITY
To: Walter W. Sackett, Representative, 100th District, Tallahassee
Prepared by: Richard Bennett, Assistant Attorney General
QUESTION:
Does the posting of "not responsible" signs in parking lots,
restaurants, etc., relieve the owners thereof of liability for loss of, or
damage to, bailed property?
SUMMARY:
Stipulations by way of posted notices or otherwise that attempt to
exempt a bailee from liability for loss due to his or his servant's
negligence might be held void as against public policy; and in any event,
to avoid liability the bailee must prove that the bailor had knowledge of
and consented to such stipulation.
I shall assume, for the purposes of this opinion, that your question pertains to

3

073-5 ANNUAL REPORT OF THE ATTORNEY GENERAL

the situation where personalty is surrendered to the care, custody, and control of
another in exchange for adequate consideration or mutual benefit.
In the above-mentioned types of cases, a bailment is ordinarily created in
which the bailee is held to the exercise of ordinary care in relation to the subject
matter of the bailment and is responsible only for ordinary negligence. Peacock
Motor Company v. Eubanks, 145 So.2d 498 (Fla. 1962). The right of parties to freely
define their rights and obligations under the bailment is subject to the limitation
that they are not permitted to contract in contravention of public policy. There is a
strong tendency to hold stipulations void that exempt the bailee from liability for
loss or damage result; ing from bailee's negligence in contracts entered into by bailee
in the course of general dealings with the public, the reason for this being the
growing recognition of the inequality, in many instances, of the bargaining
position of the parties to the contract. See 8 Am.Jur.2d Bailments 128, pp. 1022 and
1023. This is especially true as to so-called "professional" bailees-that is, those
who make it their principal business to act as bailees and who deal with the
public on a uniform and not an individual basis, such as parcel checkrooms and
parking lot proprietors, Id., 131, p. 1026.
Even where the right of an ordinary bailee, such as a restaurant proprietor, to
disclaim liability is recognized, it has been held that his liability for loss of a
patron's overcoat is not affected by notices disclaiming any liability for loss of a
patron's property, in the absence of proof that the patron had knowledge of such
notice and consented to its terms. Vogelsand v. Fredkyn, 133 Ill. App. 356. Accord:
40 Am.Jur.2d Hotels, Motels, etc. 180, p. 1043. Similarly, a notice posted by the
bailee which purports to limit the liability of an operator of a parking lot for loss of,
or damage to, a bailed motor vehicle has generally been held to be ineffective where
the attention of the vehicle owner was not called to such notice and the owner did
not agree, expressly or impliedly, that it should constitute a part of the contract of
bailment. See 38 Am.Jur.2d Garages, etc. 33, p. 341.
Depending upon the nature of the contract entered into by the respective
parties, its validity, and the attendant facts and circumstances surrounding each
individual case, I am inclined to answer your question in the negative.

073-5-January 16, 1973
PAROLE AND PROBATION
REARREST OF PAROLEE OR PROBATIONER; TIME OF
INCARCERATION PENDING HEARING
To: Armond R. Cross, Chairman, Florida Parole and Probation Commission,
Tallahassee
Prepared by: A. S. Johnston, Assistant Attorney General
QUESTION:
For what length of time may a parolee or probationer be
incarcerated under 948.06, F. S., on a rearrest before a hearing has to be
ordered?
SUMMARY:
A person detained under Rule 3.709, CrPR, or 947.22, 947.23,
or 948.06, F. S., must receive a hearing either by the Parole and
Probation Commission or by the court, as the case may be in each
respective statute, within a reasonable time in view of all facts and
circumstances of each particular case, depending upon the sur-
rounding circumstances. Persons detained pursuant to 949.10,
949.11, and 949.12, F. S., must receive a hearing within ten days from
the date of their incarceration or else be released from custody
pending a hearing to be held within a reasonable time.

4

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-5

Prior to responding to your exact question, it is necessary that this opinion be
qualified by consideration of Rule 3.790, Criminal Procedure Rules of Florida.
Rule 3.790 (formerly Rule 1.790), and specifically subsection (c) thereof, relates to
the revocation of probation. This rule requires that when a probationer is brought
before a court charged with a violation of his probation, if the charge is admitted to
be true, the court may forthwith revoke or modify such probation. If the violation of
probation is not admitted, the probationer may either be committed or released by
the court with or without bail to await a further hearing on the violation. This
hearing must be conducted as soon as practicable and probationer has the right to
be fully heard in person, by counsel, or both. The Rules of Criminal Procedure,
adopted by the Supreme Court by court rule, supersede all conflicting rules and
statutes. All statutes not superseded by the rules or that are not in conflict with the
rules remain in effect as rules promulgated by the Supreme Court [196 So.2d 124
(Fla. 1967)], 33 F.S.A. XV. It therefore must follow that a conflicting statute
relating to the revocation of probation must be considered in the light of the
court rule.
Your exact question on the statutory requirements relating to the time within
which a hearing must be held, as opposed to the rule, relates to both parolees and
probationers, and to properly make this opinion clear, certain distinctions must be
made here.
The Supreme Court in Brill v. State, 32 So.2d 607,609 (Fla. 1947), has clearly
stated the necessity for holding a hearing when it said that "[t]he courts all hold that
whether the action involved a suspended sentence, pardon or parole, due process
requires that a hearing be accorded the one charged ." Keeping in mind
that the court in this case has further held that such hearings can be informal and do
not take the course of a regular trial nor does the evidence have the same objective as
that evidence taken at a regular trial, but that the purpose of the hearing is to satisfy
the conscience of the court as to whether the conditions of the suspended sentence
have been violated, with a secondary purpose being to give the person accused of
the violation a chance to explain away the accusation, such hearing requirement
does not contemplate a strict or formal trial.
Section 948.06, F. S., relates only to probationers while 947.22 and 947.23,
relate to parolees only. Sections 949.10 and 949.11, relate to subsequent arrest on
felony charges of both parolees or probationers.
Since your question relates to both parolees and probationers, this opinion will
consider arrest for both violations of parole or probation and incarceration pending
a hearing on such violation under the respective statutes above.
Section 947.22, F. S., authorizes the issuance of a parole violation warrant by
any member of the Parole and Probation Commission, commanding that the
parolee be brought before such member at which time he may examine the parolee
and either commit him to jail pending a hearing before the commission or admit
him to bail, conditioned on his appearance before the commission for such hearing.
If the parolee is arrested without warrant by any parole or probation supervisor,
such parolee must be brought forthwith before the commission, or some member
thereof, and the same proceedings held thereon as when a parole violation warrant
is issued.
Section 947.23, F. S., requires that parolees arrested pursuant to 947.22,
supra, appear before the commission in person "[a]s soon as practicable after the
arrest ." If such parolee is not admitted to bail but committed to jail
"pending a hearing before the commission" (947.22, F. S.), no time is fixed by
947.22 within which any such hearing must be held, and said 947.23 does not
prescribe any fixed time within which such hearing shall be held, the terms thereof
in effect requiring only that such hearing be conducted "as soon as practicable."
Section 948.06, F. S., as does Rule 3.790, relates to revocation of probation, and
like the rule prescribes procedures to be followed by parole and probation

&" 5

073-5 ANNUAL REPORT OF THE ATTORNEY GENERAL

supervisors and the court for the revocation, modification, or continuance of a
person's probation when a violation of the probation has occurred or is alleged to
have occurred. This statute requires that when a probationer is brought before the
court, the probationer shall be advised of the charges of violation and if said charges
are admitted by the probationer to be true, the court may forthwith revoke, modify,
or continue such probation. If the violation of probation is not admitted by the
probationer, the court may dismiss the charge of probation violation. If the
violation charge is not admitted or the probationer is not dismissed by the court, the
court, as soon as may be practicable, shall give the probationer an opportunity to be
fully heard on his behalf in person or by counsel.
The term, "as soon as practicable," has been defined by the courts of this state
in civil matters to mean "within a reasonable time in view of all facts and
circumstances of each particular case, and what is reasonable time depends upon
the surrounding circumstances." Morton v. Indemnity Ins. Co. of N. America, 137
So.2d 618 (2 D.C.A. Fla., 1962). In the absence of any legislative definition or
qualification of the term as used in 947.23 or any judicial definition thereof to the
contrary, I find no valid reason not to apply the same meaning to the parole
violation hearing conducted by the commission. I therefore conclude that a parolee
arrested for violation of the terms of his parole who is committed to jail pending a
hearing before the commission may be so incarcerated for a reasonable time, as
above defined, before the parole violation hearing is held by the commission.
However, the determination of whether such parolee is legally incarcerated, or is
detained beyond a reasonable period of time, is one that must be adjudicated by the
court in appropriate legal proceedings brought by the accused parolee for such
purpose.
Sections 949.10,949.11, and 949.12, F. S., relate to persons both on parole or on
probation when such parole or probation is the result of a prior felony arrest.
Section 949.10 provides that the subsequent arrest for a felony of a person on felony
parole or probation shall be prima facie evidence of the violation of the terms and
conditions of his parole or probation agreement or order, and the parole or
probation agreement or order is immediately temporarily revoked and said
probationer or parolee must remain in custody until a hearing by the Parole and
Probation Commission or the court is held. This, in effect, requires such a person to
be held in custody without bail until such hearing. Unlike Rule 3.790 CrPR or
947.22,947.23, and 948.06, F. S., 949.11 requires a hearing to be held within ten
days from the date of the arrest for the subsequent felony, or the release of such
parolee or probationer from custody. A failure to hold such a hearing under this
section within the ten days, as specified, requires the immediate release of such
person from incarceration and, in effect, would end the temporary revocation of the
parole or probation.
Therefore, there are three statutes and a rule of court which must be considered
when responding to your question. Rule 3.790 CrPR which relates to probationers,
947.22 and 947.23, F. S., which relate to parolees, and 948.06, F. S., which
relates to probationers, all require a hearing to be held as soon as practicable.
Section 949.11, F. S., requires a hearing to be held within ten days from the date of
the arrest of a felony probationer or parolee upon a subsequent felony charge. As
cited above, "as soon as practicable" requires that a hearing be held within a
reasonable time in view of all facts and circumstances of each particular case, said
reasonableness depending upon the surrounding circumstances.
It is therefore my opinion that since no time is fixed or specified by the
enumerated rule or statutes, except the ten-day requirement found in Ch. 949, F. S.,
within which to hold a parole or probation violation hearing, the parolee or
probationer may be detained or incarcerated for such a period of detention as may
be for a "reasonable time." A determination as to what is reasonable lies within the
discretion and judgment of the Parole and Probation Commission whose official
actions and determinations must be presumed to be exercised in good faith and

6

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-6

presumptively legal, valid, and binding on the detained parolee or probationer
unless and until held to the contrary by the courts. The question of the
reasonableness of the length of incarceration and the legality of such incarceration
is a mixed question of fact and law which the attorney general cannot resolve, and a
judicial question that must be determined by the court in appropriate judicial
proceedings-such as habeas corpus-brought by such detained parolee.

073-6-January 16, 1973
LABOR ORGANIZATIONS
CITIZENSHIP REQUIREMENT FOR BUSINESS AGENT

CRIMES
TRESPASS BY LABOR ORGANIZATION REPRESENTATIVE
IN LABOR CAMP
To: Kenneth Myers, Senator, 45th District, Miami
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Are the provisions of 447.04(1)(a), F. S., requiring a business
agent to be a citizen of the United States, constitutional?
2. Are the criminal trespass laws applicable in the case of a
representative of the farm workers union visiting camp sites in which
migrant farm workers reside if the farm workers have no objection to the
visit but the property owner does?
SUMMARY:
The provision of 447.04(1)(a), F. S., requiring a business agent of a
labor union to be a United States citizen, would probably be upheld by
the courts. Florida's criminal trespass statute, 821.01, F. S., would
probably not be applied to divest migrant farm laborers of their
constitutional rights; however, it is still applicable in a proper case to a
labor camp constituting "enclosed land and premises" within the
purview of the statute.
AS TO QUESTION 1:
Section 447.04(1), supra, requires a "business agent" of a labor union in this
state to have been a citizen of the United States for at least five years, of good moral
character, and not to have been convicted of a felony without having his civil rights
restored. In Hill v. State, 19 So.2d 857 (Fla. 1944), these provisions of the act were
sustained as against the contention that they "restrain the exercise of appellants'
civil rights guaranteed by the First Amendment to the Federal Constitution." (The
appellants were a labor union and its business agent.) The court pointed out that
similar regulations are imposed on attorneys, physicians, barbers, insurance
agents, real estate brokers, nurses, beauty parlor operators, civil engineers,
architects, liquor dealers, and many others engaged in gainful occupations, and that
they have been upheld "in the interest of the public health, morals, safety, welfare,
and prosperity of the people." That the court was referring to the citizenship
requirement cannot be doubted in view of the following language:
Section 4 requires nothing more than a showing of the Americanism,
good moral character, and freedom from felony of their business
agents. We have long since gotten away from the idea that human

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073-6 ANNUAL REPORT OF THE ATTORNEY GENERAL

relations which affect the public welfare can be transacted in a moral
vacuum. Good moral character and sound Americanism is the very basis
on which democratic institutions rest. In this state of the law, it
would seem idle to say that one's civil rights were unduly hobbled to
require him to show his good moral character, that he had been exposed to
the American way of life for ten years, that he had not committed a fel-
ony .
This ruling is in accord with that of a Texas court in American Federation of Labor
v. Mann, 188 S.W.2d 276, 288 (Tex. App. 1945), upholding similar provisions of a
Texas statute. The court commented that
Such restrictions and limitations upon the rights of aliens are in essence
discrimination as between citizens and non-citizens, but they are
grounded upon sound principles of public policy, designed for the
protection and preservation of our fundamental institutions, and have
long been recognized as a valid exercise of the police power of the state in
matters affecting the public interest. ..
It follows also the general rule in 3 Am. Jur.2d Aliens and Citizens 37, p. 887:
[I]f a calling is one that a state, in the exercise of its police power,
may prohibit absolutely or conditionally by the exaction of a license, as in
cases where the calling or occupation is one which, although lawful, is
subject to abuse and likely to become injurious to the community, the fact
of alienage may justify a denial of the privilege.
The provisions of the Florida statute here in question were also attacked in the
Hill case on the ground that they "invade the field covered by the National Labor
Relations Act, 29 U.S.C.A., Section 151 et seq." and this ground of attack was
sustained by the United States Supreme Court in Hill v. State, 325 U.S. 538 (1945),
as to business agents who serve in the capacity of collective bargaining agents of the
labor union. However, as noted in State v. Smith, 123 So.2d 700 (Fla. 1960), the
high court's decision was limited to collective bargaining representatives and was
not intended to strike down these provisions as to business agents of labor unions
who perform functions which have no relation to collective bargaining. It was
noted also that the National Labor Relations Act was modified following the Hill
decision "so as to indicate a clear intention on the part of Congress not to preempt
the field of labor relations in the area involved the licensing and
qualification of officers or paid representatives of labor unions."Accord: DeVeau v.
Braisted, 363 U.S. 144 (1960), in which the court upheld a state statute prohibiting a
convicted felon from representing a union.
In any event, the narrow question presented by you as to the constitutionality
of a citizenship requirement respecting such occupations as business agent of a
labor union must be answered in the affirmative, under the decisions and text
authority referred to above. (No question was presented and no opinion is
expressed as to the validity of the five-year requirement respecting citizenship.
However, it might be noted that the former ten-year requirement was referred to in
the Hill case, supra, and was not expressly disapproved.)
Your first question is answered in the affirmative.
AS TO QUESTION 2:
Prior to 1969, 821.01, F. S., provided that
Whoever willfully enters into the enclosed land and premises of
another, or into any private residence, house, building [or labor camp] of
another [which is occupied by the owner or his employees, being
forbidden so to enter] shall be punished by imprisonment not
exceeding six months, or by a fine not exceeding one hundred dollars.

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ANNUAL REPORT OF TIlE ATTORNEY GENERAL 073-6

This statute was amended by Ch. 69-284, Laws of Florida, by deleting the
bracketed words and adding the words "having been forbidden so to enter by the
lawful occupant. ." The amendment authorizing the "lawful occupant" of
the premises to forbid a person from entering thereon is, apparently, a recognition
of case law holding that, unless a particular lease contains some conditions or
limitations as to the lessee's rights of use, occupancy, or possession of the leased
premises, the lessee would have the right to exclude others from the leased
premises. See Rogers v. Martin, 99 So. 551 (Fla. 1924), holding that a lease conveys
to the lessee a leasehold estate in the leased premises during the life of the lease
which for all practical purposes is equivalent to absolute ownership. Accord:
Attorney General Opinion 039-174, April 28, 1939, Biennial Report of the Attorney
General, 1939-1940, p. 565, citing Baker v. Clifford-Mathew Inv. Co., 128 So. 827
(Fla. 1930).
And the deletion of the words "labor camp" from the statute is, presumably, a
recognition of the fact that labor camps are no longer little more than slave labor
camps as they were in 1879 when this statute was first adopted by Ch. 3139, 1879,
Laws of Florida. Today, the rights of migrants living in labor camps to the kinds of
communications, associations, and friendships guaranteed to all citizens, as
secured by the Constitution, have been judicially recognized in decisions of state
and federal courts. See: Folgueras v. Hassle, 331 F. Supp. 615 (D.C. Mich. 1971),
holding that representatives of a federal assistance program to provide medical
supplies and services, nutritional foodstuffs, and related services to counteract
conditions of starvation or malnutrition among the poor could not be denied access
to a farm labor camp by the owner; People v. Rewald, 65 Misc.2d 453,318 N.Y.S.2d
40 (1971), holding that a newspaperman could not be denied access to a migrant
labor camp of the type characterized as a "company town" in Marsh v. Alabama,
326 U.S. 501 (1946); and New Jersey v. Shack, 277 A.2d 369 (N.J. 1971), involving
field workers seeking to advise migrant farm workers of the aid available to them
from federal, state, or local services or from recognized charitable groups. But cf.
Petersen et al. v. Talisman Sugar Corporation et al., Case No. 72-198-Civ-CR, U.S.
District Court for the Southern District of Florida, Order filed March 10, 1972
(presently pending on appeal). In that case the trial judge dismissed a complaint
filed by a representative of the United Farm Workers, AFL-CIO, and two others, to
enjoin the owner of a labor camp from denying them ingress into the camp for the
purpose of determining whether Jamaican laborers were performing jobs which
were formerly being performed by members of the union who were on strike
against the corporation. The court declined to rule on the question of the
applicability of 821.01, supra, in this situation but stated, in dictum, that
were the Court to rule upon this question, as requested, the
plaintiffs have made no showing that the legislature intended to alter the
law of property with regard to labor camps nor that trespass is not still a
crime where it concerns enclosed lands in the form of labor camps.
The court distinguished the Folgueras case, supra, stating that the plaintiffs there
were "members of a federal program, the Economic Opportunity Act program
established for the purpose of aiding farm workers. Justice and equity alone
demands a different decision in this case."
It should perhaps be noted, also, that a criminal action for trespass filed against
these same plaintiffs in a state court was dismissed by the trial judge on the ground
that "to prevent their entry might lead to a condition where employees are subjected
to a form of involuntary servitude, wherein the masters decide who may
communicate with the servants." See State v. Petersen et al., Case No. 72M-8209,
filed in the Small Claims-Magistrate Court, Criminal Division, in andforPalm Beach
County. (The order of dismissal was not appealed.)
The conclusion that may be drawn from these decisions is that the Florida
criminal trespass statute, 821.01, supra, will not be applied by the courts to divest

9

073-7 ANNUAL REPORT OF THE ATTORNEY GENERAL

migrant farm workers of their constitutional rights; however, the criminal trespass
statute is still applicable to protect the owner of labor camp premises to the same
extent as any other owner of enclosed land and premises that are occupied by a
tenant. If the labor camp is in the nature of "enclosed land and premises," rather
than a "company town," and the labor representatives are not "invitees" of the
tenant, then they may perhaps be excluded by the owner.

073-7-January 22, 1973
CRIMINAL PROCEDURE
PROSECUTION OF TRAFFIC OFFENSE TRANSFERRED
TO COUNTY COURT
To: Philip S. Shailer, State Attorney, Fort Lauderdale
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
May a case be tried in the county court upon a uniform traffic ticket
without any necessity for the prosecuting attorney to file an information
in that court when a person has been prosecuted for a traffic violation in a
municipal court upon a uniform traffic ticket and the case has been
transferred to the county court for jury trial pursuant to 932.61?
SUMMARY:
When a person has been prosecuted for a traffic violation in a
municipal court upon a uniform traffic ticket and the case has been
transferred to the county court pursuant to 932.61, F. S., the case may be
tried in the county court upon such uniform traffic ticket without any
necessity for the filing of an information therein. If the state attorney
elects to do this, it would be well for him to file a statement to that effect.
I think that said question is properly answered in the affirmative.
Section 932.61, F. S., provides for the transfer of certain cases from municipal
courts to state courts for jury trials, upon petitions filed in the municipal courts by
the defendants. Said statute provides that when such a transfer is ordered by a
municipal court, the clerk of that court shall transmit the original papers in the case
to the clerk of the transferee court and shall transmit copies thereof to the
prosecuting attorney of the transferee court.
In 932.63 and 932.65, F. S., the legislature prescribed the practice and
procedure to be followed after the making of such a transfer. These sections read as
follows:
932.63 Filing of charges; petitioner not incarcerated.-If the
petitioner is not incarcerated, the prosecuting attorney shall, within thirty
days of receipt of the petition, after due and diligent consideration and
investigation of defendant's cause, file charges on behalf of the state
against the defendant in the court providing criminal jury trial
jurisdiction, or shall decline to file charges against the defendant, and the
cause shall be dismissed upon the filing of a no true bill by the
prosecuting attorney with the clerk. Upon failure of the prosecuting
attorney to take action within thirty days, the cause shall be dismissed by
the clerk of the court in which the cause is pending. (Emphasis supplied.)
932.65 Filing formal charges; petitioner incarcerated.-When a
person is incarcerated for a violation of a county or municipal ordinance

10

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-7

and fails, or is otherwise unable, to be released on bond and requests a
trial by jury, the person shall be transferred within five days to the jail
facilities of the criminal court providing trial by jury. The prosecuting
authority shall file formal charges within three days of the transfer of the
person who fails, or is unable to post bond. Upon the failure or inability of
the prosecuting authority to file charges, the person incarcerated shall be
released and the provisions of 932.62 shall apply. It shall be the
responsibility of the jailer releasing the prisoner to have him execute and
sign an agreement to appear before the court to which his case has been
transferred in accordance with 932.62. (Emphasis supplied.)
These statutes require that if the prosecuting attorney of the transferee court
intends to prosecute the case in that court, he must file formal charges therein, as by
information. Thus, they prescribe the practice and procedure to be followed in
handling transferred cases in the transferee courts, which practice and procedure
are in direct conflict with controlling rules promulgated by the Supreme Court of
Florida insofar as traffic violations are concerned.
Pursuant to the mandate of Art. V, 3, State Const. 1885, as amended in 1956,
the Supreme Court adopted criminal procedure rules. One of said rules, Rule 3.140,
contains the following proviso:
[P]rovided that a court in which prosecutions for misdemeanors
are not required by the Constitution to be upon information, the
prosecution of a misdemeanor charge for the violation of a statute
concerning vehicular traffic may be upon a traffic ticket when authorized
by statute. (Emphasis supplied.)
The Constitution does not require prosecutions for misdemeanors to be upon
information, and 316.018, F. S., provides for the prosecution of a traffic violation
upon a uniform traffic ticket and sets forth a form of such ticket which may be used.
The result is that said Rule 3.140 CrPR unqualifiedly authorizes a prosecution in a
county court for a traffic offense to be upon a uniform traffic ticket. This means,
inter alia, that if a traffic violation is prosecuted in a municipal court upon a
uniform traffic ticket and the case is transferred to the county court pursuant to
932.61, F. S., then the prosecution in the county court may be upon such uniform
traffic ticket.
Revised Art. V, 20(b), State Const., which became effective on January 1,
1973, continued said quoted provision of Rule 3.140 CrPR in effect "until
superseded in the manner authorized by the constitution." Section 2(a) of said
revised Art. V brings forward the command of superseded Art. V, 3, that the
Supreme Court adopt rules for the practice and procedure in all courts. So, said
provision of Rule 3.140 is now in effect and the Supreme Court still has full and
complete power to adopt or change rules as to practice and procedure.
As of December 6, 1972, the Supreme Court revised the Criminal Procedure
Rules and the revised rules are now scheduled to go into effect on February 1, 1973.
Revised Rule 3.140 omits any mention of prosecuting traffic offenses upon uniform
traffic tickets. However, none of the Criminal Procedure Rules are applicable to
traffic offenses except insofar as they are made applicable by the Florida Rules of
Practice and Procedure for Traffic Courts. This is evidenced by the fact that revised
Rule 3.010 provides that:
3.010 SCOPE
These rules shall govern the procedure in all criminal proceedings in
State courts including proceedings involving direct and indirect criminal
contempt, including proceedings under Rule 3.850 hereof, and including
vehicular and pedestrian traffic offenses insofar as these Rules are made
applicable by the Florida Rules of Practice and Procedure for Traffic
Courts. (Emphasis supplied.)

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073-8 ANNUAL REPORT OF THE ATTORNEY GENERAL

And Traffic Court Rule 6.07, adopted by the Supreme Court, provides that:
6.07 COMPLAINT-SUMMONS-FORM-USE
All prosecutions for traffic violations by law enforcement officers
shall be by uniform traffic complaint as provided for in Florida Statutes
316.018 or other applicable statutes, or by affidavit, information or
indictment as provided for in the Florida Criminal Rules of Procedure.
(Emphasis supplied.)
It thus appears that Supreme Court rules now authorize, and are scheduled to
continue to authorize, the prosecution of traffic offenses in county courts upon
uniform traffic tickets without regard to whether such prosecutions are initially
commenced in the county courts or are transferred thereto from municipal courts
pursuant to 932.61.
Since 932.63 and 932.65, F. S., contemplate that if the prosecuting attorney
of the county court (now the state attorney) intends to prosecute therein a traffic
case transferred from a municipal court, he must file a formal charge (as by
information) in the county court, and since the rules authorize such a prosecution in
the county court to be upon the uniform traffic ticket upon which the municipal
court prosecution was founded, the rules and statutes are in hopeless conflict as to
practice and procedure. Inasmuch as the rules were adopted in accordance with a
constitutional command, they prevail over the statutes to the extent of the conflict.
[See State v. Robinson, 132 So.2d 156 (Fla. 1961); and Jaworski v. City of
Opa-Locka, 149 So.2d 33 (Fla., 1963).]
However, if the state attorney decides to prosecute the transferred case in the
county court upon the uniform traffic ticket upon which the prosecution in the
municipal court was instituted, it would be appropriate, and probably helpful, for
him to file in the county court, within the time prescribed by the pertinent statute
(932.63 or 932.65) for filing formal charges, a written statement that he will
proceed with the prosecution in the county court upon the uniform traffic ticket
transmitted to that court by the transferring municipal court.

073-8-January 22, 1973
SUNSHINE LAW
DISCUSSION OF AUDITOR GENERAL'S REPORT
To: William F. Edwards, Attorney, Citrus County Mosquito Control District,
Inverness
Prepared by: Henry George White, Assistant Attorney General
QUESTION:
When a mosquito control district receives a preaudit report and list
of adverse findings from the Auditor General, must the discussion in
reference to that preaudit report and list of adverse findings be
conducted in an open meeting and the records of such meeting be made
public?
SUMMARY:
The Citrus County Mosquito Control District is a "political
subdivision" within the meaning of 1.01 (9) and 286.011, F. S., and any
meetings which are held by its governing body to discuss or formulate an
explanation or rebuttal to the findings of the auditor general's report,
including the corrective action to be taken with respect to the adverse

12

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-8

findings, must take place openly and publicly, and the minutes of such
meeting must be recorded and be open to public inspection.
Your question is answered in the affirmative for the reasons stated below.
A brief examination of the laws relating to preaudit reports and open meetings
is necessary in order to find the answer to your question.
Section 11.45(6)(d), F. S. (1972 Supp.), provides in pertinent part as follows:
(d) At the conclusion of the audit, the auditor general or his
designated representative shall discuss the audit with the official whose
office is subject to audit and submit to him a list of his adverse findings
which may be included in the audit report. .. The official shall
submit to the auditor general or his designated representative, within
twenty days after receipt of said list of findings, his written statement of
explanation or rebuttal concerning all of the findings, including therein
corrective action to be taken to preclude a recurrence of all adverse
findings.

Prior to the amendment of 11.45(6)(d), the filing of a reply to a preaudit report was
optional. However, a comparison of the provisions of 11.45(6)(d) as they existed
before and after the amendments thereto by Ch. 72-6, Laws of Florida, reveals a
legislative intent to make mandatory the submission of an explanation or rebuttal
concerning all of the findings of the auditor general, including corrective action to
be taken to preclude the recurrence of all adverse findings. Thus, in the case of the
Citrus County Mosquito Control District, this mandatory duty falls on its
governing body pursuant to Ch. 388, F. S.
Section 286.011, F. S., provides in relevant part as follows:
(1) All meetings of any board or commission of any state agency or
authority, or of any agency or authority of any county, municipal
corporation or any political subdivision at which official acts
are to be taken are declared to be public meetings open to the public at all
times, and no resolution, rule, regulation or formal action shall be
considered binding except as taken or made at such meeting.
(2) The minutes of a meeting of any such board or commission
shall be promptly recorded and such records shall be open to
public inspection. ..
Initially, it should be noted that the Citrus County Mosquito Control District is
a "political subdivision" within the meaning of 1.01(9), F. S. Such political
subdivisions are expressly included within the coverage of the Sunshine Law.
Furthermore, the exercise of special taxing powers of the type granted to mosquito
control districts by 388.221, F. S., is, as was observed in AGO 071-171, a matter of
vital concern to the public, requiring that the meetings of the governing bodies of
such districts be open to the public. Finally, our Supreme Court has noted that the
legislature intended to extend the application of the Sunshine Law to every
" 'board or commission' of the state, or of any county or political subdivision over
which it has dominion or control." City of Miami Beach v. Berns, 245 So.2d 38 (Fla.
1971) at 40. Accord: Attorney General Opinion 071-389.
Having thus established that the Sunshine Law applies to the proceedings of
the Citrus County Mosquito Control District, it is appropriate to examine that
statute's directives. One of the fundamental principles of statutory interpretation
teaches that when words of common usage are used in a statute they should be
construed in their plain and ordinary sense. Pedersen v. Green, 105 So.2d 1 (Fla.
1958). The meaning of the Sunshine Law is as plain as the words used to express it:
"[A]ll meetings .. at which official acts are to be taken are declared to be public
meetings open to the public at all times ." Inasmuch as the submission of
an explanation or rebuttal concerning all of the findings of the auditor general in a

13

073-9 ANNUAL REPORT OF THE ATTORNEY GENERAL

preaudit report, including therein corrective action to be taken to preclude a
recurrence of all adverse findings, is a mandatory duty on the part of the audited
official which requires official action [11.45(6)(d), F. S. (1972 Supp.)], it is my
opinion that any meeting held for the purpose of discussing or preparing such an
explanation or rebuttal must be open to the public, and the minutes of such meeting
should be recorded and made available to the public (286.011, F. S.).

073-9-January 22, 1973
TAXATION
AGRICULTURAL LANDS ASSESSMENT;
CITY OF GAINESVILLE
To: J. Pierce Smith, Alachua County Tax Assessor, Gainesville
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
Is the provision of Ch. 67-1415, Laws of Florida, which specifically
exempts the City of Gainesville from "agricultural assessment law"
provided for in 193.11(3), F. S. 1967, applicable in the assessment of
real property within the boundaries of the City of Gainesville?
SUMMARY:
Real property located within the City of Gainesville which qualifies
for agricultural classification under Art. VII, 4(a), State Const., and
193.461, F. S., may be classified as such for tax assessment purposes.
The exemption from the provisions of 193.11(3), F. S. 1967, provided
for the City of Gainesville by Ch. 67-1415, Laws of Florida, is no longer
of force or effect.
As you noted in your letter, this question has been answered previously in the
negative by the letter dated June 28, 1968, from my predecessor to the state
comptroller, stating as follows:
[T]he provisions of Chapter 67-1415, Laws of Florida, Acts of
1967, which specifically exempt the City of Gainesville from
"agricultural assessment law" provided for in Section 193.11(3), Florida
Statutes [1967], have no application to the assessment of lands for county
ad valorem tax purposes within the boundaries of the City of Gainesville,
Florida. Neither does it have any application to municipal taxes. ..
Your specific question is whether the conclusion in the above-quoted letter has
been altered by subsequent relevant statutory and constitutional changes. In my
opinion, such changes have not altered that conclusion, and the assessment and
classification provisions relating to "agricultural classification" or "agricultural
zoning" provided by general law are applicable to the assessment of property
within the City of Gainesville. Section 167.435, F. S., specifically provides that the
assessment of property for municipal taxes "shall be governed by the general laws
relating to county taxes." Section 167.435 was enacted by Ch. 69-54, Laws of
Florida, which further provided for the repeal of all conflicting general laws and
"charter provisions, special acts and population acts" relating to municipal tax
assessments for municipalities which had not theretofore consolidated their tax
assessing and collecting functions with the county. Section 167.439, F. S.
In addition, 193.11(3), F. S. 1967, enacted by Ch. 57-195, Laws of Florida,
was suspended by Ch. 67-593, Laws of Florida, for so long as 193.201, F. S. 1967
[now 193.461, F. S.], should remain in force. Section 193.461, as amended by Ch.

14

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-10

72-181, Laws of Florida, provides specific standards for the classification and
assessment of agricultural lands by the county tax assessor. Section 193.11(3) was
renumbered by Ch. 69-55, Laws of Florida, as 193.071, F. S., and finally repealed
by Ch. 70-243, Laws of Florida. Aside from the repeal effected by Ch. 69-54,
hereinabove discussed, the direct repeal of 193.11(3), supra, apparently renders
ineffective the provisions of Ch. 67-1415, supra, about which you inquire.

073-10-January 22, 1973
PUBLIC LANDS
INVENTORY FILED WITH STATE LAND PLANNING AGENCY
To: L. K. Ireland, Jr., Secretary, Department of Administration, Tallahassee
Prepared by: John P. Ingle III, Assistant Attorney General
QUESTIONS:
1. What types of information would satisfy the requirement of
380.05(1)(a), F. S., that "an inventory of lands owned by the state shall
be filed with the state land planning agency," and how may it be
determined that this requirement has been met?
2. Will the requirement, also set forth in said 380.05(1)(a), that
"[t]he state land planning agency shall request all political subdivisions
and other public agencies of the state and the federal government to
submit an inventory of lands owned within the State of Florida" be met
when such request is made, or only after the receipt of this information
from the public agencies indicated?
SUMMARY:
The inventory of lands owned by the state, required to be filed with
the state land planning agency by 380.05(1)(a), F. S., is the same as the
current inventory of all state-owned lands maintained by the Board of
Trustees of the Internal Improvement Trust Fund under 253.03(7), F.
S. The requirement for such filing is met when the trustees file a
certified true copy of such current inventory of state-owned lands with
the state land planning agency, together with the trustees' certificate
with respect to the present ownership by the state of the lands described
in such inventory under the official seal of the trustees. The requirement
of 380.05(1)(a) that the state land planning agency request the federal
government and all political subdivisions and other public agencies of
the state to submit an inventory of lands owned within the state is met
when the state land planning agency has made such a request, and the
planning agency need not await responses or the receipt of such
inventories from all the agencies queried as a condition to the
implementation of 380.05(1)(a).
The Board of Trustees of the Internal Improvement Trust Fund has been
charged since 1967 with the duty to "maintain a current inventory of all state owned
lands." Section 253.03(7), F. S. Since the Board of Trustees of the Internal
Improvement Trust Fund (hereinafter referred to as the trustees) is the only state
agency charged with maintaining such an inventory, it is reasonable to infer that the
"inventory of lands owned by the state" required by 380.05(1)(a), F. S., refers to
and is the same as the "current inventory of all state owned lands" maintained by
the trustees, 253.03(7), and the trustees should file a true copy of such current
inventory with the state land planning agency. This being so, it seems further
reasonable to conclude that the term "lands owned by the state" should be taken to

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073-11 ANNUAL REPORT OF TIlE ATTORNEY GENERAL

refer to those lands specifically designated in 253.01, 253.02, and 253.03, F. S.
Since neither 380.05(1)(a) nor Ch. 253, F. S., provides a definition of the term
"inventory" nor specifies the manner in which the inventory is to be kept, I am of
the opinion that the word should be given its common everyday meaning.
Webster's Seventh New Collegiate Dictionary defines inventory as "an itemized
list of current assets-a catalog of the property of an individual or estate or a list of
goods on hand-a survey of natural resources." Thus, the inventory need not
include all the records, surveys, plats, maps, field notes, patents, deeds, and other
legal documents evidencing and describing the state-owned lands. A summarized
listing of the lands by some reasonable classifications and descriptions should
suffice for the purposes of both 253.03(7) and 380.05(1).
I do not think that the state land planning agency need undertake an
independent determination or evaluation of the authenticity or correctness of the
inventory filed by the trustees either as to form or content. A certified true copy of
an inventory maintained pursuant to its statutory authority and duty by the trustees
under their official seal is prima facie evidence of the facts therein certified, is
admissible in all courts of the state and is entitled to be admitted to record and
recorded in the official records of deeds in the several counties of the state as a
certificate of said trustees with respect to the present ownership of lands of the
state. Section 92.16, F. S. Accordingly, the requirements of 380.05(1)(a), F. S.,
would be met when the executive director of the trustees files with the state
planning agency a certified true copy of the current inventory of all state-owned
lands maintained by the trustees, containing a certificate of said trustees with
respect to the present ownership by the state of the lands listed in such inventory
under their official seal.
As to your second question, the quoted language of 380.05(1)(a), F. S., speaks
only of the state land planning agency initiating the inquiry; and it does not make
the procurement of such information or inventory a condition precedent to the
designation of any area of critical state concern by the administration commission.
It does not speak of a requirement that the state land planning agency await
responses to its request as a condition to the implementation of 380.05(1)(a). The
state land planning agency certainly has no powers to coerce such information from
the federal government, and the statute does not in terms vest such coercive powers
in the land planning agency with respect to "political subdivisions and other public
agencies of the state." The answer to your second question, then, is that the
requirement of 380.05(1)(a) is met when the state land planning agency makes its
formal request to the listed agencies for an inventory of lands owned within the
State of Florida. However, the state planning agency should diligently follow up or
pursue such request of the said governmental agencies and take all reasonable steps
to procure the cooperation of said public agencies.

073-11-January 24, 1973
FINES AND FORFEITURES
FINES AND FORFEITURES IMPOSED IN COUNTY COURT
FOR TRAFFIC OFFENSES COMMITTED WITHIN
MUNICIPALITIES-DISTRIBUTION
To: Ray Garner, Clerk, Court of Record, Titusville
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Are fines and forfeitures received after January 1, 1973, for
convictions of violations of the Uniform Traffic Law committed within a
municipality and tried in a county court required to be remitted monthly

16

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-11

to the municipality, even though the citations for such offenses were
made by a state or county law enforcement officer?
SUMMARY:
After January 1, 1973, a municipality is entitled to the fines and
forfeitures received for convictions of traffic offenses committed within
the municipality and tried in the county court, without regard to whether
the citations for the offenses were issued by state, county, or municipal
law enforcement officers.
Section 316.0261, F. S. (effective January 1, 1973) of the State Uniform Traffic
Control Law provides as follows:
Except as otherwise provided herein, all fines and forfeitures
received by any county court from violations of any of the provisions of
this chapter, or from violations of any ordinances adopting matter
covered by this chapter, committed within a municipality shall be paid
monthly to that municipality. It is the intent of the legislature that such
fines and forfeitures shall be paid monthly to that municipality in
addition to any other fines and forfeitures received by a county court that
are required to be paid to that municipality as otherwise provided by
law. .
Section 20(c)(4) of revised Art. V, State Const. (incorporated in the statutes
by Ch. 72-404, Laws of Florida, as 34.01, F. S.), vests in the county courts
S. original jurisdiction in all misdemeanor cases not cognizable
by the circuit courts, of all violations of municipal and county
ordinances, and of all actions at law in which the matter in controversy
does not exceed the sum of $2,500, exclusive of interest and costs,
except those within the exclusive jurisdiction of the circuit courts.
(Emphasis supplied.)
Also relevant here is 20(c)(8) of revised Art. V, State Const., effective January
1, 1973 [incorporated almost verbatim into our statute law by Ch. 72-404, Laws of
Florida, as 34.191, F. S.] providing as follows:
(1) All fines and forfeitures arising from offenses tried in the
county court shall be collected and accounted for by clerk of the court and
deposited in a special trust account. All fines and forfeitures received
from violations of ordinances or misdemeanors committed within a
county or municipal ordinances committed within a municipality within
the territorial jurisdiction of the county court, shall be paid monthly to the
county or municipality respectively [except as provided in 23.103].
(The bracketed provision was added by the legislature.)
There is nothing in the quoted provisions to indicate that the framers of revised
Art. V, State Const. and the legislature intended to limit the municipality's right to
share in the fines and forfeitures collected from traffic offenses committed within
the municipality and tried in the county court to those in which the citations are
issued by municipal officers. And the only limitation on the law enforcement
power of the several law enforcement officers-state, county, and
municipal-authorized to enforce the traffic law is territorial. Under 316.016, F.
S., the Florida Highway Patrol, the sheriff's office, and the police department of a
municipality are vested with the authority to enforce the law. Each of these law
enforcement agencies is authorized to enforce "all the traffic laws of this state on all
the streets and highways thereof" within the state, county, and municipality,
respectively. (Emphasis supplied.)
It has been said that the courts should be extremely cautious in adding words to

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073-12 ANNUAL REPORT OF THE ATTORNEY GENERAL

a statute as enacted by the legislature. Armstrong v. City of Edgewater, 157 So.2d
422 (Fla. 1963). Where there is doubt as to the legislative intent or where
speculation is necessary, doubts should be resolved against the power of courts to
supply missing words. In re Jeffcott's Estate, 186 So.2d 80 (2 D.C.A. Fla., 1966).
And construing a constitutional provision, the object is to effectuate the intent and
purpose of the people in adopting it. See Amos v. Mathews, 126 So. 308 (Fla. 1930).
It cannot be doubted that the framers of revised Art. V, State Const. and the
legislature contemplated the "phasing out" of municipal courts between the
effective date of the article, January 1, 1973, and the year 1977. See 20(d) and (f) of
revised Art. V. And they must have been aware of the fact that the municipalities
would have some expense in enforcing municipal ordinances and traffic offenses
committed within the municipality, even though the violation is tried in a county
court. See AGO 072-259, holding that a city that has abolished its municipal court
must continue to maintain security facilities to house prisoners charged with
violations of municipal ordinances. And see 43.28, F. S. (added by Ch. 72-404,
supra), requiring counties to furnish appropriate courtroom facilities, personnel,
etc., for the operation of the circuit and county courts, except that
any municipality which abolishes its municipal court prior to
1977 must provide courtroom facilities for the trial of violations of its
ordinances or violations of the uniform traffic code committed within
the municipality, if the county does not have adequate facilities to try
such cases. (Emphasis supplied.)
In light of these several considerations, I am reluctant to read into the
constitutional and statutory provisions in question an intent to limit the
distribution to a municipality of fines and forfeitures for traffic offenses committed
within a municipality and tried in the new county court to those resulting from
citations by municipal officers. And any conflicting provisions of former statutes,
such as 321.05(4)(a), F. S., relating to the disposition of fines and forfeitures
resulting from enforcement of Ch. 321, F. S., by Florida Highway Patrol officers in
connection with the regulation and enforcement of state traffic laws will be of no
force and effect after January 1, 1973, under the general rule that the last expression
of the legislative will is the law when there is an irreconcilable conflict in the
provisions of the same statute or different statutes. See State v. City of Boca Raton,
172 So.2d 239 (Fla. 1965). Accord: Attorney General Opinion 058-38. Section
321.05(4)(a), F. S.
Accordingly, pending legislative or judicial clarification, your question is
answered in the affirmative.

073-12-January 24, 1973
GAMBLING
PRIZEGIVING BY CERTAIN BUSINESS ESTABLISHMENTS
To: Jack M. Poorbaugh, Representative, 77th District, Jupiter
Prepared by: Richard Bennett, Assistant Attorney General
QUESTION:
May a retail merchandising business or motor fuel dealer, licensed
as such pursuant to Ch. 205, F. S., and 206.404, F. S., respectively,
continue to advertise and give away prizes as authorized by 849.092, F.
S.?
SUMMARY:
A retail merchandising business, defined as such in Ch. 67-433,

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-12

Laws of Florida (205.482(2)(a) and (b) and (3) F. S. 1971), and licensed
under Ch. 72-306, Laws of Florida (Ch. 205, F. S.), and motor fuel
dealers defined as such in Ch. 70-995, Laws of Florida (206.01(9), F. S.),
and licensed under 206.404, F. S., are within the purview of 849.092,
F. S., and may continue to give away free prizes to persons selected by
lot, on the conditions therein specified, despite the repeal of Ch. 205, F.
S. 1971, and the repeal and reenactment of 208.01, F. S., now
appearing as 206.404.
Section 849.092, F. S., excepts certain persons from the operation of 849.09, F.
S. (prohibiting lotteries), and permits "giving away prizes to persons selected by
lot" on the conditions therein specified. The section is applicable to those "persons
who are licensed to conduct business under 205.482 and 206.404."
Chapter 205, F. S. 1971 (and all sections thereof with certain exceptions not
material hereto), was repealed and a new Ch. 205 created in lieu thereof by Ch.
72-306, Laws of Florida, effective April 24, 1972, which omitted 205.482, F. S.
1967 (which provided for an annual license tax for the privilege of "conducting,
engaging in and carrying on the business of a retailer").
The new Ch. 205 (Ch. 72-306, supra) authorizes local governments to levy,
under certain conditions and restrictions, occupational license taxes on any
business, profession, or occupation within their respective jurisdictions. By
enacting the new Ch. 205 in lieu of the former, the legislature did not evidence any
intention to repeal or modify 849.092, F. S. The reference in 849.092 to
former205.482 and 208.01 (appearing now as 206.404, F. S.) was, in effect, a
convenient means of identifying and selecting the two particular classes of
business that were to be excepted from the lottery law. And it is apparent that the
legislature identified these two excepted classes by referring to them by the laws
existing at the time 849.092 was enacted. Such incorporated provisions-insofar
as 849.092 is concerned-continue unaffected by the subsequent amendment,
revision, or repeal thereof by Ch. 72-306, the new Ch. 205, F. S., or any ordinance
enacted thereunder by local governing bodies.
In construing a statute, the search is to ascertain the legislative intent in
promulgating the statute. Lanier v. Bronson, 215 So.2d 776 (4 D.C.A. Fla., 1968).
The legislature, when it carved out exceptions to the prohibition against lotteries
contained in 849.09, F. S., intended to except those persons referred to in
849.092. The exceptions include certain retailers as defined in Ch. 67-433, Laws of
Florida (former 205.482(2)(a) and (b) and (3), and licensed under 205.482, F.
S. 1971, and motor fuel dealers as defined in Ch. 70-995, Laws of Florida,
206.01(9), F. S., and licensed under 208.01, F. S., which appears now as
206.404, F. S.
When analyzing the new Ch. 205 (Ch. 72-306, supra), we must keep in mind
that the legislature clearly defined which persons it wished to exempt from the
prohibition against lotteries in 849.092, F. S. And even though local governments
are now authorized to levy occupational license taxes on any business, only those
retailers and motor fuel dealers that are referred to in 849.092 and as defined in the
sections listed supra, are excepted from the operation of 849.09, F. S.
The legislative intent must be the guiding factor when construing a statute, and
this intent must be given effect even if it appears to be contradictory to the strict
wording of the statute and to the rules of construction. City of Fort Lauderdale v.
Des Camps, 111 So.2d 693 (2 D.C.A. Fla., 1959).
Therefore, in the absence of clear legislative intent to the contrary, and until
legislatively or judicially clarified, I am of the opinion that those persons defined as
retailers in Ch. 67-443, Laws of Florida (205.482(2)(a) and (b) and (3), F. S. 1971),
and licensed under Ch. 72-306, Laws of Florida (Ch. 205, F. S.), and motor fuel
dealers as defined in Ch. 70-995, Laws of Florida (206.01(9), F. S.), and licensed
under 206.404, F. S., are within the purview of 849.092, F. S., and are authorized
by law to give away prizes to persons selected by lot on the conditions and in the
manner prescribed by said 849.092.

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073-13 ANNUAL REPORT OF THE ATTORNEY GENERAL

073-13--January 29, 1973
STANDARDS OF CONDUCT LAW
COUNTY EMPLOYEE HOLDING NONCONFLICTING
ELECTIVE OFFICE
To: County Employee
Prepared by: Richard Bennett, Assistant Attorney General
QUESTION:
May an employee of a county parks and recreation department hold
an elected, nonpaying position as supervisor of the board of a water
district?
SUMMARY:
An employee of a county parks and recreation department may hold
an elected nonpaying position as supervisor of the board of a water
district.
Pursuant to 112.315, F. S., I render the following opinion with respect to the
Standards of Conduct Law. It should be noted at the outset that this opinion is
confined to the provisions of 112.311-112.318 and to 104.31, F. S., and shall not
be concerned with any existing local or special laws, county ordinances, or civil
service rules that may apply in such circumstances.
The provision of law [112.313(6), F. S.], that formerly prohibited a public
officer or employee from accepting other employment that might impair the
exercise of an independent judgment in carrying out his official duties was
invalidated in State v. Llopis, 257 So.2d 17 (Fla. 1971).
Section 112.313(4), F. S., prohibits a public officer or employee from accepting
or engaging in any professional activity "which he might reasonably expect would
require or induce him to disclose confidential information acquired by him by
reason of his official position." In an informal opinion dated September 1, 1972, I
stated that the language of subsection (4) appears to place some responsibility for
resolving the question upon the officer or employee himself-presumably because
he is in the most advantageous position to do so. However, it would seem to me that
there would be no particular danger of inducement to disclose confidential
information in this case.
I have not overlooked 104.31, F. S., which prohibits state, county, or
municipal employees from engaging in certain political activities. However, this
statute expressly provides in paragraph (1)(c) that it is not to be construed as
preventing any person "from becoming a candidate for and actively campaigning
for any elective office in this state." I assume that you, as a county employee, are not
subject to civil service or other local rules or regulations that would prohibit
seeking and holding an elective office. I also assume that your employment with the
county is full time and that the county has the power to regulate the working hours
of its full-time employees as well as leaves of absence, vacations, etc., and that your
position with the district does not unduly interfere with the discharge of your
duties as a "Working Foreman 1."
I have also considered the common-law rule of incompatibility (which is in
effect in Florida) with regard to the holding of two positions in the public service.
This rule prohibits a person from holding two positions in the public service, the
duties of which are incompatible-as, for example, when the duties clash or one
position is subordinate to the other. In the case before me for consideration, it does
not appear that this rule would apply.
I am not aware of any statutory prohibition that would prevent an individual
from holding both the positions of "Working Foreman 1" with the county and also a
nonpaying elective office with another governmental unit.

20

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-14

The several questions posed regarding the powers of the county commission
and the legality of official acts taken or about to be taken by that body may not be
answered in the absence of a request or the concurrence of a majority of the
members of the governing body of the county. It is the long-standing policy of this
office, with which I concur, to refrain from rendering an official opinion
concerning official actions of the county commissioners except upon request of a
majority of the members together with a short memorandum of law citing the
applicable law or other authorities pertaining to the problem presented by the
request.

073-14-February 2, 1973
CIVILIAN POLICE AIDE
AUTHORITY TO ISSUE TRAFFIC CITATIONS
To: James B. Balsiger, Chief Judge, Municipal Court, Ft. Lauderdale
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
Is a "civilian police aide" authorized to issue a traffic ticket or
citation for a violation of Ch. 316, F. S.?
SUMMARY:
A "civilian police aide" is not authorized to issue a traffic ticket or
citation for a violation of Ch. 316, F. S., unless he qualifies as a part-time
or auxiliary police officer pursuant to Ch. 23, F. S., and the rules adopted
thereunder.
In order for a civilian aide to be authorized to work part time in enforcing
traffic laws, as by issuing traffic tickets or citations, he must qualify as a "part-time
or auxiliary police officer." Section 23.061(4), F. S., defines this term as follows:
(4) "Part-time" or "auxiliary" police officer means any person
employed, with or without compensation, less than full time by this state
or any political subdivision or municipality thereof, and whose primary
responsibility is the prevention and detection of crime or the enforcement
of the penal, traffic, or highway laws of this state. (Emphasis supplied.)
Section 23.067(2), F. S., provides that:
23.067 Special powers; police officer training.-The council shall
have the following special powers in connection with the employment
and training of police officers:

(2) Establish uniform minimum standards, with reasonable
classifications as determined by the council, for the employment and
training of part-time or auxiliary police officers.
The Police Standards Council has adopted uniform minimum standards for the
employment of part-time or auxiliary police officers.
Of course, a person cannot be the "part-time or auxiliary police officer" of a
municipality, as thus defined, unless the controlling law of that municipality
authorizes such a position and that person has been duly designated to hold such a
position.

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073-15 ANNUAL REPORT OF THE ATTORNEY GENERAL

073-15-February 2, 1973
CONSOLIDATED CITY OF JACKSONVILLE
URBAN SERVICES DISTRICTS-TITLE TO PROPERTY;
TRANSFER; TAXING POWERS
To: Carl Ogden, Majority Leader, House of Representatives, Tallahassee
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
1. Do the second, third, fourth, and fifth urban services districts
formed under the Charter of the Consolidated City of Jacksonville have
title to "street ends or former city-owned property" or does such
property belong to the consolidated government?
2. Does title transfer require approval of consolidated government
or can it be transferred by city councils elected for these incorporated
cities (urban services districts)?
3. Do the urban services districts have separate taxing authority
and if so, to what limit?
SUMMARY:
The title to property received by the consolidated government of
the City of Jacksonville from the former governments which occupied
urban services districts prior to the effective date of the charter would
remain vested in the consolidated government if such property has not
been legally conveyed since consolidation. However, the second, third,
fourth, and fifth urban services districts are authorized by the charter to
transfer such property, provided such transfers are made in good faith,
on behalf of, and in the name of, the consolidated government, and
subject to conditions imposed by the council in the exercise of any
authority vested in it. The second, third, fourth, and fifth urban services
districts are restricted by charter provisions in Art. 25 of the charter
limiting ad valorem property tax levies to a maximum of 6 mills on
property within such districts in order to secure those additional services
enumerated in 2.05 of the charter.
The questions presented appear to me to be answered in part by explicit
provisions of the charter hereinafter detailed, insofar as they vest in the
consolidated government the title to all former municipal properties, but vest in the
officers of special districts (second, third, fourth, and fifth) the authority to transfer
such property on behalf of the consolidated government.
The authority of those districts to impose taxes other than ad valorem property
taxes is entirely negated by the recent decision of the Circuit Court for the Fourth
Judicial Circuit, Jacksonville Beach et al. v. City of Jacksonville, Civ. Action No.
72-8620, January 9, 1973. My consideration of property tax issues not specifically
treated in the judgment and order entered therein is, of course, subject to further
order of the trial or appellate courts in that case, now pending on petition for
rehearing. Subject to the same qualification as to finality, in the application of the
law controlling property taxes hereinafter I am guided by the ruling of the court in
that case to the effect that any conflicting provisions of the charter must yield to the
expressed intent that there be a single paramount consolidated government and that
the five districts in question are subordinate special districts which are neither
municipalities nor quasi-municipalities.
My conclusions generally, as to the effect of this and other controlling law
discussed below on property tax powers, are that the urban service districts in
question have the status of special taxing districts with authority to certify to the

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-15

council, for levy and collection, a millage for their authorized purposes subject to
the 6-mill maximum provided by 25.01 of the charter for all urban services
districts, and assuming compliance with restrictions governing special district
millage generally.
With respect to your initial question, I note that 1.01 of the charter [Ch.
67-1320, Laws of Florida] provides in part:
The consolidated government shall, without other transfer, succeed to
and possess all the properties (of whatever nature). of the former
governments from and after the effective date of this charter .
(Emphasis supplied.)
In addition, 2A.06 [Ch. 67-1535, Laws of Florida] contains the following
provisions:
The second, third, fourth and fifth urban services districts shall each be
entitled to the use of the property received by the consolidated
governments from the former government which occupied such urban
services district, and the boards, bodies and officers of each such urban
services district shall be entitled to deal with, encumber, and transfer such
property on behalf of the consolidated government.The second, third,
fourth and fifth urban services districts shall each be entitled to own,
acquire, encumber and transfer property in its own name, by the duly
authorized action of its boards, bodies and officers. (Emphasis supplied.)
Section 1.01 clearly expresses an intent that the consolidated government
obtain title to all of the properties owned by the former governments prior to the
charter's effective date. A foundation for this viewpoint is provided by the literal
interpretation of the expression "succeed to and possess," and the fact that nothing
in 1.01 suggests less than a complete transfer of title. Section 2A.06 contains no
language which might reasonably be interpreted to imply a transfer of title to
properties formerly held by the Beaches and Baldwin to the corresponding urban
services districts. Section 2A.06 is consistent with the above interpretation in
another respect, in that it limits the second, third, fourth, and fifth urban services
districts to the use rather than the ownership of the properties in question.
An application of the above construction to the properties referred to in your
letter (i.e., "street ends or former city owned property") would require knowledge
of additional details concerning the title to such properties prior to consolidation. It
may be said, however, that if the ownership of such properties immediately prior to
the effective date of the charter could have been legally characterized as being
within the scope of 1.01, then the title to such properties would have become
vested in the consolidated government on the effective date of the charter.
Assuming this to be so, title would currently remain in the consolidated
government, absent the conveyance of such property subsequent to consolidation.
Question 2 pertains to 2A.06 of the charter. As emphasized above, 2A.06
authorizes the boards, bodies, and officers of the second, third, fourth, and fifth
urban services districts to transfer, on behalf of the consolidated government, title
to property which was received by the consolidated government from the
government which formerly occupied such urban services districts. This
delegation of authority, in the nature of an agency power, is not accompanied by
any expressed conditions or restrictions, except to such extent as the council may
exercise authority otherwise vested in it to control or regulate action by district
officers. In my opinion, the provision grants to the second, third, fourth, and fifth
urban services districts the authority, on behalf of the consolidated government as
grantor, to transfer such property in good faith exercise of district functions without
obtaining the prior approval of the consolidated government, unless such approval
has been required by action of the council based on other charter provisions as
judicially construed, supra.

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073-15 ANNUAL REPORT OF THE ATTORNEY GENERAL

In response to your third question so far as it relates to property taxes, my
conclusion that urban services districts under the charter may function as special
taxing districts is based on a consideration of numerous provisions which, because
of space limitations, will not be set out in full. Article VIII, 9, State Const. 1885;
Art. VII, 9, State Const. 1968; Art. VII, 9(b), State Const. 1968; Art. VIII, 6(e),
State Const. 1968; Art. XII, 2, State Const. 1968; Charter 1.01,2.01, 2.04, 2.05,
2A.06, 15.09, 23.03, 25.01, 25.01(2) and 25.01(3); 200.071(3), F. S.
Article VIII, 9, supra, permits a consolidated government "in the place of any
or all county, district, municipal and local governments" but authorizes division of
"the territory included in such municipality into subordinate districts." (Emphasis
supplied.) The Supreme Court in Jackson v. Consolidated Government, 225 So.2d
497 (Fla. 1969), construed the implementing special acts, Chs. 67-1320, 67-1535,
and 67-1547, Laws of Florida, as a single charter retaining former governments in
the districts in question "upon the terms specified in the Charter." The court
affirmed a decree which acknowledged the powers of the consolidated government
to levy ad valorem taxes within the specific districts in question for general services
purposes but stated that "[t]he only limitation upon its powers is that it may not
levy ad valorem tax [limited to such a district] for urban services."
The apparent reference is to 15.09 of the budget article of the charter, the
apparently conflicting terms of 25.01(3) remaining applicable only to levies by the
council in the remaining first urban service district:
Section 15.09. Provisions Inapplicable to Second, Third, Fourth and
Fifth Urban Services Districts. The preceding provisions of this Article
15 shall not apply to the second, third, fourth and fifth urban services
districts. The budgets of each of those urban services districts, and the
levy of taxes in those districts, shall be made in accordance with the
special and general laws which applied to the former government which
occupied each such urban services district immediately prior to the
effective date of this charter, in accordance with Section 2A.05.
(Emphasis supplied.)
This right of the specified districts to budget and levy property taxes, in
accordance with laws applicable to their former governments, does apparently
spell out a separate taxing authority. The scope of such authority, however, under
the terms of the recent decision in Jacksonville Beach et al. v. City of
Jacksonville, supra, is limited by their status as subordinate special districts and not
quasi-municipalities. This decision, together with the numerous charter provisions
considered in pari material, seems to me to indicate an intent that these district
governing bodies certify to the council for assessment and collection a millage for
district purposes within the 6-mill maximum provided by 25.01 for urban services
district purposes generally, unless some other millage limit for these districts can
be regarded as "authorized by law and approved by vote" under Art. VII, 9,
supra, either by affirmative vote on the charter or other law within each district, or
otherwise preserved by Art. XII, 2, State Const., as an existing village when the
1968 Constitution became effective. This construction also places a duty upon the
second, third, fourth, and fifth urban services districts to finance those services
enumerated in 2.05, because they impose a millage under 15.09 which, absent
that section, would be controlled directly by the consolidated government under
25.01(3).
The concept of a consolidated government and the dual county-city role
provisions incorporated in the charter and its authorizing constitutional
amendment make unnecessary many difficult distinctions between county and
municipal purposes and provide considerable flexibility for the council to
"determine in any case that the urban services districts shall be considered to be
municipalities and the general services districts considered to be a county." Section
23.03. In the absence of such determination, the application of special district
taxing limitations hereinabove outlined seems to me to be in order.

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-16

While this discussion should provide some indication of the limits of these
districts' authority to impose property taxes, I am aware that numerous issues
remain open and subject to disposition on the basis of facts beyond the scope of
those stated and to which your inquiry is directed, as for instance the question of
whether 200.071, F. S., has any applicability to the cumulative county-city-district
property tax village imposed under the charter. Although the judicial construction
of the charter to date negatives the existence of municipal powers independent or
beyond the control of the consolidated government, the charter and its
constitutional authorization apparently do not prevent application of provisions of
the Constitution and general law controlling millage limits for municipal as well as
county and district purposes.
Article VII, 9, State Const., fixes a 10-mill limit on taxation for county
purposes, and the same limit on taxation for municipal purposes. In addition, that
section provides that "[a] county furnishing municipal services may, to the extent
authorized by law, levy additional taxes within the limits fixed for municipal
purposes." The application of these provisions to the maximum of 14 mills which
25.01(2) of the charter authorizes the council to levy on the general services district
requires that the 4-mill excess be regarded as authorized for municipal purposes.
An examination of those services listed in 2.04, which the consolidated
government is required to furnish throughout the entire general services district,
supports that conclusion.
If it can be assumed that four of the maximum 14 mills authorized by 25.01(2)
of the charter are levied in order to provide services or facilities of the kind or type
commonly provided by municipalities, and that such services are furnished
throughout the general services district (which includes the urban services
districts) as required by 2.04 of the charter, then the Beaches and Baldwin, as
special taxing districts, may levy a maximum of 6 mills for such services, whether or
not they are in terms controlled by the 6-mill limit of 25.01(3) of the charter.
Although a levy in excess of 6 mills would be constitutionally proper if authorized
by law and approved by referendum within the special districts, such millage
would not appear to comply with the terms of 200.071, F. S., which aggregates
millage for counties and districts to a limit of 10 mills, with certain specified
exceptions as stated in 200.071(3). Again, a different allocation of county-
municipal millage imposed by the consolidated government would affect the
propriety of a levy for districts in question under the cited law.

073-16-February 5, 1973
TRAFFIC CONTROL LAW
SCHOOL ZONES-TIMES AT WHICH SPEED LIMIT EFFECTIVE
To: Philip D. Lewis, Senator, 33rd District, Riviera Beach
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Does the provision of 316.184, F. S., prescribing the times within
which the school zone speed limit is to be enforced, apply to the periods
during the school day when students go from one class to another when a
school is located in several buildings on either side of a heavily traveled
street under the jurisdiction of a municipality?
SUMMARY:
Section 316.184, F. S., prescribing the periods of time in which the
school zone speed limit shall be in effect, applies to the periods at the

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073-16 ANNUAL REPORT OF THE ATTORNEY GENERAL

beginning and the end of the regularly scheduled school day or session
and not to the periods during the school day when students go from one
class to another.
Section 316.184, supra, provides that:
(1) No school zone speed limit shall be less than fifteen miles per
hour. Such speed limit shall be in force only during those times thirty
minutes before and thirty minutes after the times necessary and
corresponding to the periods of time when pupils are arriving at and
leaving regularly scheduled school sessions.
See also subsections (2), (3), and (4) of this section, requiring permanent and
portable signs designating school zones and school zone speed limits to be uniform
in size and color and in conformity with standards established by the Department
of Transportation, and authorizing the use of automatic traffic control devices for
the control of vehicular and pedestrian traffic at school crossings in lieu of
permanent or portable school zone signs. Subsection (3) provides that portable
signs may be erected on the roadway "only during those hours when pupils are
arriving at and leaving regularly scheduled school sessions."
It seems clear that the legislature intended that vehicular traffic in a school
zone should not be inconvenienced by the low school zone speed limit except
during the periods when school pupils would be either coming to or leaving school
at the beginning and end of the regularly scheduled school day or session.
Apparently, the legislature did not envision a school system that would be located
on either side of a heavily traveled city street; and it is obvious that the schools in
question have a special traffic problem which requires special handling either at
the state or local level. Because of the requirements of the statute referred to above
respecting the designation of school zones and the times within which a school
zone speed limit may be enforced, it must be concluded that the city may not
proceed under 316.184, supra, to adopt a municipal ordinance establishing a
school zone and designating varying times during the day, or the entire school day,
as the periods or period in which the school zone speed limit is to remain in effect,
and utilizing permanent or portable school zone signs in enforcing the ordinance.
Thus, your question, as stated, must be answered in the negative.
I cannot help but observe, however, that in adopting the Uniform Traffic
Control Law the legislature expressly recognized that there are conditions which
require municipalities to pass certain other traffic ordinances in the regulation of
municipal traffic, see 316.002, id. Section 316.008, id., enumerating the areas
within which municipalities may control traffic movement and parking within
their respective jurisdictions, includes the right to alter or establish speed limits
"within the provisions of this chapter." And 316.182(1), id., expressly authorizes a
municipality to alter the statutory speed limit of thirty miles per hour in a particular
zone "both as to maximum and minimum, after investigation determines such a
change is reasonable and in conformity to criteria promulgated by the department
of transportation ." A municipality also has the power to adopt and
enforce "such temporary or experimental regulations as may be necessary to cover
emergencies or special conditions." Section 316.008(1)(t), F. S.
While a municipality may not pass or attempt to enforce any ordinance in
conflict with the provisions of the Uniform Traffic Control Law 316.002, id., it
seems to me that the municipality's governing body could adopt some special
system of traffic control for the particular area in question without regard to the
requirements of 316.184, supra, respecting school zones, just as it may regulate
vehicular and pedestrian traffic in any area of the city where, in its judgment,
special conditions require special regulation.

26

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-17

073-17-February 5, 1973
COUNTY FUNDS
AUTOPSIES AND CAUSE OF DEATH DETERMINATIONS-PAYMENT
OF COSTS
To: T. Richard Hagin, Sumter County Attorney, Bushnell
Prepared by: Michael M. Corin, Assistant Attorney General and William B.
Fletcher, Legal Intern
QUESTION:
May Sumter County pay for autopsies and cause of death
determinations performed at the request of the state attorney before and
after July 1, 1972?
SUMMARY:
A county may pay for autopsies and cause of death determinations
made at the request or without the request of the state attorney pursuant
to Ch.406, F. S., or 925.09, F. S., whether occurring before or after July
1, 1972, despite the requirement of 27.34, F. S. (1972 Supp.), as
amended by Ch. 72-734, that no county shall appropriate or contribute
funds to the operations of the state attorney's office. The provisions of
Ch. 406 and 925.09 do not conflict with 27.34, and funds appropriated
or contributed by the counties to the operation of the district medical
examiner's office and for the purposes of carrying out the requirements
of Ch. 406 or to physicians performing autopsies pursuant to 925.09 do
not constitute an appropriation or contribution of county funds to the
operation of the state attorney's office.
More specifically, you are concerned with whether 27.34, F. S. (1972 Supp.),
effective July 1, 1972, as amended by 1 of Ch. 72-734, Laws of Florida, conflicts
with 925.09, F. S. Also, you want to know whether autopsies and cause of death
determinations performed after July 1, 1972, at the request of the state attorney, may
l)e paid by the county. I find Ch. 406, F. S. also applicable.
In answering your question, I will assume that the physician performing the
autopsies and cause of death determinations is authorized or required by law to
perform same at the request of a state attorney and that the autopsies and cause of
death determinations were ordered or required pursuant to Ch. 406, F. S., or
925.09, F. S.
Section 925.09, F. S., provides that:
The state attorney or the county solicitor may have an autopsy
performed, before or after interment, on a dead body found in the county
when he decides it is necessary in determining whether or not death was
the result of a crime. Physicians performing the autopsy shall be paid
reasonable fees from the county fine and forfeiture fund upon the
approval of the county commission and the prosecuting attorney ordering
the autopsy.
Section 3 of Ch. 72-326, supra, created 27.34, F. S. (1972 Supp.). Section 27.34(1),
as amended by Ch. 72-734, reads:
No county or municipality shall appropriate or contribute funds to
the operation of the various state attorneys, except that each county may
appropriate funds for the purpose of prosecuting misdemeanors, traffic
offenses, violations of metropolitan code ordinances, and offenses tried
in county courts by reason of ratification of revised Article V of the
Florida Constitution on March 14, 1972.

27

073-17 ANNUAL REPORT OF THE ATTORNEY GENERAL

Section 406.11, F. S., provides:
Examinations, investigations, and autopsies.-
(1) When any person dies in the state;
(a) Of criminal violence;
(b) By accident;
(c) By suicide;
(d) Suddenly, when in apparent good health;
(e) Unattended by a practicing physician or other recognized
practitioner;
(f) In any prison or penal institution;
(g) In police custody;
(h) In any suspicious or unusual circumstance;
(i) By criminal abortion;
(j) By poison;
(k) By disease constituting a threat to public health; or
(1) By disease, injury, or toxic agent resulting from employment; or
(2)(a) When a dead body is brought into the state without proper
medical certification; or
(b) When a body is to be cremated, dissected, or buried at sea;
the medical examiner of the district in which the death occurred or the
body was found shall determine the cause of death and shall make or have
performed such examinations, investigations, and autopsies as he shall
deem necessary or as shall be requested by the state attorney or county
solicitor. The district medical examiner shall have the authority in any
case coming under any of the above categories to perform, or have
performed, whatever autopsies or laboratory examinations he deems
necessary in the public interest. (Emphasis supplied.)
Section 406.13, F. S., in pertinent part, requires the district medical examiner
or his associate to "report or make available to the state attorney or county solicitor,
in writing, his determination as to the cause of said death."
Section 406.17, F. S., specifically provides that nothing contained in Ch. 406,
F. S., shall "be construed to repeal or amend 925.09 or to affect the right of
prosecutors to investigate and determine causes of death which, in their opinion,
may have been criminally caused."
Construing Ch. 406, F. S., with 925.09, F. S., a medical examiner is required to
determine the cause of death in all cases enumerated in 406.11, supra, and to
perform autopsies as he shall deem necessary or as shall be requested by the state
attorney in all such cases. The medical examiner has the authority in all such cases
to perform or have performed whatever autopsies or laboratory examinations he
may deem necessary in the public interest even without the request of the state
attorney as authorized by 406.11, 406.17, or 925.09.
Section 406.07, F. S., provides:
District medical examiners and associate medical examiners shall be
entitled to compensation and such reasonable salary and fees as are
established by the boards of county commissioners in the respective
districts.
Section 406.08(1), F. S., provides that feesee, salaries, and expenses may be paid
from the general funds or any other funds under the control of the board of county
commissioners."
Sections 406.11,406.17, and 925.09, F. S., read together, while giving authority
to the state attorney to order or request an autopsy or cause of death determination,
should not be read as effecting or resulting in any contributions of county funds to
the operation of the state attorney's office, inasmuch as such payments are
authorized or required by law to be paid to the medical examiner's office or, in the

28

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-18

absence of the medical examiner or associate, to the physician appointed by the
state attorney to act in their stead (406.15, F. S.) or to the physicians performing
autopsies under the authority of 925.09, supra. All fees, salaries, and expenses
paid by the county to the district medical examiner or his associate fund the
operations of the district medical examiner's office and not the state attorney's
office.
Chapter 72-326, supra, does not expressly repeal or evidence any legislative
intent to repeal, modify, or supersede Ch. 406, F. S., or 925.09, F. S. Repeals by
implication are not favored, Parker v. City of Jacksonville, 82 So.2d 131 (Fla. 1955),
and should not be resorted to unless there is an irreconcilable conflict between the
provisions of two statutes relating to the same subject matter. Fields v. Wilensky,
247 So.2d 477 (4 D.C.A. Fla., 1971). Even if there were an apparent inconsistency
between the statutes in question, which there is not, there would be a duty to resolve
the inconsistencies in a manner as to give each statute a separate field of operation.
Fields, supra.
Finding that the aforementioned provisions of Ch. 406, F. S., and 925.09, F.
S., and the provisions of 3 of Ch. 72-326, supra [27.34, F. S. (1972 Supp.)], are not
repugnant or irreconcilable, that each has its separate field of operation, that no
implied modification or repeal of the provisions of Ch. 406, supra, or of 925.09 has
been effected by Ch. 72-326, and that such statutes do not in any way conflict, I
must conclude that autopsies and cause of death determinations made at the request
or without the request of the state attorney before or after July 1, 1972, pursuant to
Ch. 406 or 925.09, may be paid for by the county.

073-18--February 8, 1973
STATE FUNDS
PAYMENT FOR INSURANCE ON FIRST $100
DAMAGE TO RENTED CARS
To: L. K. Ireland, Jr., Secretary, Department of Administration, Tallahassee
Prepared by: Stephen F. Dean, Assistant Attorney General
QUESTIONS:
1. Is payment of the cost of insurance protection for the first one
hundred dollars of damage to a rental car used on official business a
legitimate cost of travel which may be expended by a state employee and
reimbursed by his state agency from appropriated expense funds?
2. If the answer to question 1 is in the affirmative, is any state
agency authorized to act as a self-insurer for such coverage provided an
analysis indicated that self-insurance would cost less than payment of
premiums?
SUMMARY:
The payment by a state officer or employee made for waiver of the
contractual liability for the first one hundred dollars' damage to rental
car is a legitimate and necessary expense reimbursable from
appropriated expense funds.
An agency may self-insure against such contractual liability where
this would be more economical, subject to the limitations and controls of
other state statutes.
Your questions have assumed the same fact assumed in AGO 071-350: i.e., that
the two dollar charge for protection against liability on the first $100 of damage to a
rental car is insurance. A review of a typical lease contract for a lease vehicle reveals

29

073-18 ANNUAL REPORT OF THE ATTORNEY GENERAL

that this two dollar fee is for a waiver of a contractual right and that the liability for
this damage is contractual and not tortious. Because this assumption is erroneous,
the conclusions of the aforementioned AGO 071-350 are also in error. See 30 Fla.
Jur. State of Florida 33, for discussion of state liability on contracts.
Section 112.061, F. S. (1972 Supp.), is the legislature's directive concerning
travel expenses and per diem for state officers, employees, and authorized travelers.
Section 112.061(1) states the purpose of the statute is to remedy past inconsistencies
contained in numerous laws on the subject, and establishes uniform maximum
rates and limitations with justifiable exceptions applicable to authorized travelers
whose expenses are paid by public agencies. Careful analysis of 112.061 reveals
that the authority to reimburse travel expenses is never specifically stated anywhere
within the section although this authority is alluded to and its existence is implicit
in the nature of the section. Upon analysis, one finds in 112.061 a series of rules
which limit whose travel expenses are authorized to be paid, when and how travel
may be conducted, and some specific listings of expenses which the state will and
will not pay.
However, as the section relates specifically to the first question presented
herein, a general authority can be found for travel by rental car if the rental is from
established rental car firms since they are included within the definition of a
common carrier [see 112.061(2)(h)], and travel by common carrier is generally
authorized by 112.061(7). Within the limitations contained in 112.061(7) upon
expenses allowed during travel by common carrier, there is no limitation which
would preclude payment of the two dollar charge paid to obtain the waiver of
contractual liability for damage to a rental car.
At this point, a short discussion of the factual elements of rental car travel is in
order, for it affects greatly the results of this opinion. The experience of this office
indicates that all rental car agencies have such a provision concerning liability for
the first one hundred dollars' damage to a rental vehicle within their contract for the
use of the car. Therefore, when travel by rental car is dictated by the situation, the
only choice which the lessee has is whether to pay for the waiver or accept the
liability. The question of reimbursement for this expense then turns upon whether
the traveler is the lessee or the state is the lessee.
The question of who is the lessee is dependent upon whether the traveler
rented the car for his own use or as an agent for the state. I shall dwell on the latter
question since it is obvious the traveler has the power and authority to rent the car
for his own use and one would have to so conclude in the absence of a finding that
the traveler was an agent for the state.
To create an agency requires an agent, a principal, and delegation of authority
from the principal to the agent. In addition, the agent must accept the undertaking.
See 1 Fla. Jur. Agency 2. Any person who is sui juris can be an agent or a principal.
See 1 Fla. Jur. Agency 4. The state can obviously be a principal, for all its activities
must be carried out by its officers and employees pursuant to grants of power
delegated to them by the State Constitution or by statute. In the instant case, as
aforestated, the legislature has authorized certain persons to travel [see
112.061(2)(c)], and further authorized them to travel by rental car [see
112.061(2)(h) and (7)]. This authority to travel by rental car carries with it the
concomitant authority to enter the contract to so travel, for without this power the
travel cannot be effectuated. (See 30 Fla. Jur. Statutes 126.) It can be argued that
the grant is limited to the authority to reimburse; however, this would assume the
traveler was economically able to advance the state the cost of the rental, upon
which assumption the operations of state government cannot depend. Further, as it
will be shown hereafter, the mode of travel is approved by the agency head when
the travel request is submitted for approval. Therefore, the travel by rental car is
approved.
Pursuant to 112.061(3)(a), supra, the travel must be approved by the
responsible agency head prior to commencing the travel. This is generally done on a
form prepared by the respective agency, and includes thereon the type of

30

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-19

transportation to be used. This form, having been approved, is forwarded back to
the traveler. The traveler therefore accepts the authority to travel prior to
commencing the trip. Upon completion of the travel and submission of the
appropriate vouchers and receipts, the state will pay the cost of the car rental
directly to the agency or reimburse it to the traveler.
Based upon these findings, it would be appropriate for the state to pay the cost
of obtaining the waiver. This conclusion is not, however, a comment on the state's
liability arising from the operation of a rental car, generally or in any specific
factual situation.
As relates to your second question, if it is more economical to protect the state
from the contractual liabilities mentioned above through the medium of
self-insurance, then the agencies involved are obligated to protect the state's
interest in the most economical fashion. If self-insurance will accomplish this and
is otherwise authorized, it would be a proper medium to acquire this protection. I
would, however, mention that an agency's program of self-insurance may be
limited or controlled by provisions of 284.30-284.42, F. S., and should therefore
be coordinated with the appropriate state agencies.
The analysis and conclusions of the questions herein supersede those in AGO
071-350 and it is, therefore, rescinded.

073-19-February 8, 1973
MUNICIPALITIES
PAYMENT FOR SERVICES OF COUNTY TAX ASSESSOR
To: Homer C. Fletcher, Indian River County Tax Assessor, Vero Beach
Prepared by: William R. Cave, Assistant Attorney General and James D.
Whisenand, Legal Intern
QUESTION:
Are the municipalities of Indian River County liable for payment of
compensation for those services which have been performed by the tax
assessor on the 1972 tax roll, under preexisting contracts, prior to July 1,
1972, the effective date of Ch. 72-368, Laws of Florida?
SUMMARY:
The several municipalities of Indian River County are liable for
payment of compensation for services of the county tax assessor in
assessing the taxable property located within such municipalities for the
1972 tax year under preexistent and lawfully authorized contracts when
such services were duly performed prior to the effective date of the
repeal of 167.437, F. S. 1971, July 1, 1972. The subsequent billing for
such services in accordance with the method of billing and practice
established by the parties pursuant to such preexisting contracts does
not affect the liability for payment of the contracted-for compensation.
Your question should in my opinion be answered in the affirmative. In 1970
the board of county commissioners and the city councils of the Indian River County
municipalities negotiated contracts for the compensation of the county tax assessor
for services rendered the municipalities in assessing all property located within the
affected municipalities. Section 167.437, F. S. 1971, required the negotiation of
such contracts between the governing body of the county or other concerned county
officials and each municipality within the county to compensate the tax assessor for
such services. Chapter 72-368, Laws of Florida, repealed 167.437, effective July 1,
1972.

31

073-20 ANNUAL REPORT OF THE ATTORNEY GENERAL

The tax assessor's office performed said services for the 1972 tax year prior to
July 1, 1972, and seeks the contracted-for compensation. Billing for the services,
however, occurred subsequent to certification of the tax roll to the tax collector,
which was in accordance with the preexistent method of billing and practice
established under said contracts. The fact that the billing was subsequent to the
effective repeal date of 167.437, F. S. 1971, does not affect the liability for
payment of compensation for said services for the 1972 tax year which were
performed and rendered by the tax assessor prior to July 1, 1972.
The contracts were authorized and mandated by 167.437, F. S. 1971, and also
valid and subsisting contracts until the repeal of 167.437. Services rendered in
performance thereof before July 1, 1972, are required to be paid for in accordance
with the terms thereof, unaffected by repeal of 167.437. A statute, prior to its
effective date, has no force and in any event operates prospectively from and after
its operative date unless there is a clear and cogent showing of retroactive intent.
[See] 30 Fla. Jur. Statutes 143;Neisel v. Morgan, 85 So. 346 (Fla. 1920); and AGO
067-49. Since all services to be compensated for herein for the 1972 tax year have
been fully performed in accordance with the aforesaid preexistent, lawfully
authorized, and mandated contracts prior to July 1, 1972, I am of the opinion that
the respective Indian River County municipalities are liable for payment of
compensation for such services for the 1972 tax year rendered prior to July 1, 1972.

073-20--February 8, 1973
TAXATION
MUNICIPAL TAXING AUTHORITY
To: Walter Dixon, City Councilman, Esto
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTIONS:
1. Under the provisions of the charter granted to the City of Esto,
does the city have through its council the authority to levy taxes on
gasoline, utilities, etc.?
2. If the answer to question 1 is in the affirmative, would you
please outline for the benefit of the council what areas of taxation are
subject to their control and what powers they have?
SUMMARY:
A municipality may be granted taxing powers, except for ad valorem
taxation, only by general law. A municipal tax on disposition of motor
fuels is prohibited by 206.61, F. S. Section 210.03, F. S., prohibits any
municipality from levying or collecting any excise tax on cigarettes.
General revenue taxing power of municipalities is provided by Ch. 167,
F. S., and authority for special taxes on property insurance premiums
and as to certain casualty insurance companies is provided under Ch.
175 and Ch. 185, F. S., respectively.
The City of Esto was apparently created by Ch. 63-1329, Laws of Florida.
Chapter 69-1050, a charter amendment, by 4, 6, and 31 carries forward previous
ordinances and grants those taxing powers provided by general law, except the right
to assess or collect any real or personal property ad valorem taxes. As to the latter
exception, 2, Ch. 72-360, Laws of Florida, repeals all such municipal charter
prohibitions or limitations on the authority to levy ad valorem or utility service
taxes. Section 167.4391, F. S. (1972 Supp.). The 10-mill ad valorem tax limitation of
Art. VII, 9(b), State Const., is applicable.

32

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-21

Initially, the constitutional limitation must be recognized that, except for ad
valorem taxes, municipalities may be granted the power to levy any tax only by
general law. City of Tampa v. Birdsong Motors, Inc., 261 So.2d 1 (Fla. 1972); Art.
VII, 1, State Const. Motor fuel taxes are imposed by the state pursuant to Ch. 206,
F. S., and 206.61 prohibits any municipality from levying a similar tax. Section
210.03, F. S., prohibits any municipality from levying or collecting any excise tax
on cigarettes.
Chapter 167, F. S. 1971, provides the general taxing powers of municipalities
and specifically authorizes certain taxes: Library tax, 167.29; ad valorem real and
personal property tax, 167.43; license tax on professions, businesses, and
occupations, 167.43 and 205.042, F. S.; license tax on railroads and express
companies in municipalities, 167.4301 and 167.4302; special tax for water works
and fire protection, 167.45; tax for municipal band, 167.67; and tax on public
services, 167.431. Authority for special taxes is provided under 185.07 and
185.08, F. S., as to certain casualty insurance companies; and under 175.101, an
excise tax on property insurance premiums. Although I have attempted to compile a
comprehensive listing of possible municipal taxes, notice must be taken that some
levies may be restricted by procedural requirements such as a referendum or other
pertinent statutory or constitutional limitations.

073-21-February 9, 1973
JURORS
BY WHOM PAID
To: Fred O. Dickinson, Jr., State Comptroller, Tallahassee
Prepared by: Richard Bennett, Assistant Attorney General
QUESTIONS:
1. With regard to Ch. 72-404, Laws of Florida, relating to judicial
reorganization, will the state be responsible for the payment of jurors in
the new county courts?
2. If the state is not responsible for the payment of jurors in such
courts and the county is required to compensate such jurors, is the state
obligated to contribute any state funds to defray all or any part of the
legal compensation for jury service in the county court during the
remainder of the fiscal year?
SUMMARY:
The compensation of petit jurors in the county courts created by
revised Art. V, State Const., and witnesses before the grand jury will
continue to be governed by Ch. 40, F. S. Therefore, the state will be
responsible for the payment of petit jurors in the new county courts and
for witnesses before the grand jury.
Question 1 is answered in the affirmative. Question 2 is rendered moot by the
affirmative response to question 1 and need not be answered.
The county court in each county was created by 6 of revised Art. V, State
Const., and its jurisdiction prescribed by 34.01, F. S. (9, Ch. 72-404, Laws of
Florida). Petit jurors of the regular panel and jurors summoned to complete a jury
after the regular panel is exhausted "in all the courts of the state" are compensated
at the rate of ten dollars per day for attendance upon the court and ten cents per mile
for necessary travel each day in going to and returning from the court. (Emphasis
suppliedd) Section 40.24, F. S., as amended by 1 of Ch. 72-308, Laws of Florida.
The method and procedures for the payment of petit jurors, requisition and

33

073-21 ANNUAL REPORT OF THE ATTORNEY GENERAL

disbursement of state funds therefore, and accounting for state moneys received and
disbursed for such purpose are prescribed in 40.29-40.35, F. S. Section 40.29
requires, in pertinent part, the clerk of the county court to estimate "the amount
necessary for the payment by the state of jurors in the county court"
and to forward such estimate to, and make his requisition upon, the state
comptroller for such amount. (Emphasis supplied.) The comptroller may reduce
the amount if he deems the requisition to be excessive. If the comptroller has reason
to believe that the amount appropriated by the legislature is insufficient to meet the
expenses of jurors "in all the courts" at the next ensuing terms of the courts, he may
apportion the money in the state treasury for that purpose among the several
counties. Section 40.31. All moneys drawn from the state treasury by the clerk of the
county court are disbursed by the clerk of said court in payment of the jurors for
service at the term of the court for which the moneys were drawn and for no other
purposes. Section 40.32. If any deficiency occurs in the amount estimated by the
clerk of the county court to be necessary for the payment of jurors at any term of said
court, the clerk of the court may make a further requisition upon the comptroller for
the amount necessary to meet such deficiency. Section 40.33.
After diligent research, I have concluded that 40.29-40.35, F. S., have not
been amended, modified, or repealed by any subsequent legislation. Furthermore,
the above-mentioned sections are the only laws providing for the payment of jurors
in the trial courts of the state. Notwithstanding the abolishment of some of the
courts enumerated in 40.29-40.35, by revised Art. V, State Const., these statutes
still apply to the circuit and county courts as established by revised Art. V, and as
they existed prior to January 1, 1973. The language of said 40.29-40.35, referring
to courts now abolished may be treated as surplusage.
While Ch. 72-404, Laws of Florida, relates to judicial reorganization and was
enacted to implement revised Art. V, it has nothing to do with jurors and jury lists or
the compensation of jurors in either the circuit courts or the county courts
established by said Art. V. Neither does it purport to provide for the compensation
of jurors in the trial courts nor to fix the responsibility for the payment of the
expenses of providing jurors for the trial courts. And, in my opinion, Ch. 72-404,
supra, does not expressly or impliedly effect any modification or repeal of any part
of Ch. 40, F. S., relating to jurors, jury lists, and the compensation of jurors in the
trial courts-circuit or county. Therefore, the selection and compensation of petit
jurors in the several county courts is and will continue to be governed by Ch. 40,
until such time as the legislature acts to the contrary. I hold further that no provision
of Ch. 72-404 requires the county to bear the expenses of jurors in the county court.
In so holding, I recognize that the legislature must have had knowledge of the laws
that existed at the time of the enactment of Ch. 72-404 and of the conditions to be
changed and controlled by said Ch. 72-404. That being so, it must be assumed that
the legislature did not intend to make any change in the procedures for the payment
of jurors in the trial courts established by revised Art. V.
If the legislature had intended for the county to pay all or a portion of the cost of
providing for jurors in the trial courts, it would have so provided, either expressly or
impliedly. But in Ch. 72-406, Laws of Florida, relating to the county court judges
and the county courts, there is no provision for the selection or compensation of
jurors in the county courts or for the payment of jurors' expenses in said courts. That
being so, the same reasoning applied to Ch. 72-404, aforesaid, as to effect on Ch. 40,
F. S., and legislative intent, governs and applies to Ch. 72-406, supra, also.
Section 34.191(2), F. S. (17, Ch. 72-404, Laws of Florida), provides that "all
court costs assessed in county court shall be paid to and retained by the county"
with certain exceptions not here material. The "costs assessed" referred to means
taxable costs authorized by law to be taxed against the losing party to a civil or
criminal cause of action. The phrase does not include the expenses of jurors at the
terms of court as prescribed by law.
Costs of litigation represent charges which the state imposes for services

34

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-22

rendered by courts and officers in performing essential services in relation to
litigation. City of Miami v. Murphy, 137 So.2d 825 (Fla. 1962). Accord: State v.
Barrs, 99 So. 668 (Fla. 1924):
(3) When a statute may and does limit the jurisdiction of a court to a
stated amount "exclusive of costs," the costs referred to are those items
that are by statute denominated costs or that are allowed by statute to be
recovered as costs.
And costs are recoverable, in general, only by force of statute. Clearly then, the term
"costs" does not contemplate the compensation of jurors, in absence of a statute to
that effect. In accord, see Wingate v. Kapp, 36 So.2d 170 (Fla. 1948), which stands
for the proposition that the cost of a jury during a term of court must be paid by the
state. I find nothing in the statutory or case law that would change this result.
The cost of providing a jury is not authorized as assessable or taxable costs by
34.191, F. S., nor by Ch. 40, F. S., nor any other law of Florida. And said 34.191
does not fix such expenses as cost nor authorize such expenses to be taxed as a cost
in favor of the prevailing party or against the losing party, nor expressly fix same or
the amount thereof to be paid or recovered as costs. There does not exist any other
statute authorizing or requiring the cost of a jury to be taxed or recovered as costs or
requiring such to be paid as costs to the courts. And costs, expenses, and attorneys'
fees cannot be awarded in a suit unless such award is authorized by statute or by
agreement of parties. Gullett v. Ochoa, 104 So.2d 799 (Fla. 1958).
As pointed out in Wood v. City of Jacksonville, 248 So.2d 176 (1 D.C.A. Fla.,
1971), costs, as such, in criminal cases were unknown to the common law.
Consequently, costs in a criminal proceeding are not recoverable in the absence of a
statutory provision. City of Miami v. Gilbert, 102 So.2d 818 (3 D.C.A. Fla., 1958).
Finally, it must be noted that the comments with regard to the state's
responsibility to compensate and to pay travel expenses of jurors in trial courts and
the governance thereof by 40.29-40.35, F. S., will likewise apply to the payment
of witnesses before the grand jury. The payment of other witness fees and the
taxation of same as costs in civil and criminal trials continue to be governed by
90.14, 90.141, 90.15, 90.231, 142.01, and 142.07, F. S. With regard to criminal
prosecutions and the payment of other costs, see Chs. 939 and 142, F. S. In sum, the
compensation of witnesses in the trial courts will remain the same, subject to
statutes applicable thereto. And "costs," when lawfully assessed in the county
courts, are within the purview of, and required by, 34.191, F. S., as amended by
Ch. 72-404, Laws of Florida, to be paid over to the county.

073-22-February 9, 1973
MUNICIPALITIES
FINANCING ROAD IMPROVEMENTS-EIGHTH-CENT
FUEL TAX; ASSESSMENT
To: Stephen W Toothaker, Town Attorney, Davie
Prepared by: Winifred L. Wentworth, Assistant Attorney General
QUESTION:
May a municipality utilize funds from its share of the eighth-cent tax
on motor fuels received under 206.605, F. S., to pay for part of the cost
of improving roads and thereafter assess abutting property owners for
improvements made for their benefit under 170.01, F. S.?
SUMMARY:
Pursuant to 170.01-170.11, 170.14, and 170.15, F. S., a

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073-23 ANNUAL REPORT OF THE ATTORNEY GENERAL

municipality may provide certain local improvements and provide that
they shall be paid for in part by funds received by the municipality as its
share of the eighth-cent gas tax [206.605, F. S.] and in part by special
assessment against abutting property which has been or will be specially
benefited.
Your question is answered in the affirmative, assuming that the project meets
the requirements of both 170.01, F. S., and 206.605(3), F. S. (1972 Supp.).
Section 206.605, F. S. (1972 Supp.), authorizes municipalities to spend their
share of the eighth-cent gas tax for certain purposes, and provides in part:
(3) Funds available under this section shall be used only for. .
construction, reconstruction, maintenance of roads and streets .
Section 170.01, F. S., authorizes municipalities to provide improvements and
collect special assessments against the property specially benefited:
Any city, town or municipal corporation of this state may, by
its governing authority, provide for the construction, reconstruction,
repair, paving, repaving, hard surfacing, rehard surfacing, widening,
guttering, and draining of streets, boulevards and alleys and may
provide for the payment of all or any part of the costs of any such
improvements by levying and collecting special assessments on the
abutting, adjoining, contiguous or other specially benefited property.
(Emphasis supplied.)
Section 170.15, F. S., specifically authorizes the municipality to fund such
improvements by other sources in addition to special assessments:
The governing authority of any municipality may pay out of its
general funds or out of any special fund that may be provided for that
purpose such portion of the cost of any improvement as it may deem
proper. (Emphasis supplied.)
Funds received by a municipality as its share of the eighth-cent gas tax pursuant to
206.605, F. S., would be within the purview of the alove-quoted 170.15.
Therefore, it is permissible for a municipality to provide certain improvements
which are to be paid for in part by the municipality's share of the eighth-cent gas tax
and in part by special assessment of abutting property which has been or will be
specially benefited by the improvement.

073-23-February 15, 1973
PAROLE AND PROBATION COMMISSION
DUTY TO SUPERVISE PERSON PLACED ON PROBATION
FOR TRAFFIC VIOLATION
To: Armond R. Cross, Chairman, Florida Parole and Probation Commission,
Tallahassee
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
If a county court orders a defendant placed on probation under the
supervision of the Florida Parole and Probation Commission in a traffic
case such as driving while intoxicated or reckless driving, will the
commission be legally required to supervise such defendant?
SUMMARY:
A county court is authorized to place a defendant on probation,

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-24

under the supervision of the Parole and Probation Commission, in any
case pending in that court, whether it involves traffic offenses such as
driving while intoxicated or reckless driving, or any other misdemeanor,
and if such should be done, it would be the duty of the commission to
supervise such probationer.
Driving while intoxicated and reckless driving are misdemeanors (316.028,
316.029, and 775.08, F. S.), as are most of the other traffic offenses proscribed by
Ch. 316, F. S., which relates to traffic control.
Revised Art. V, 20(c)(4), State Const., provides in pertinent part that:
(4) County courts shall have original jurisdiction in all criminal
misdemeanor cases not cognizable by the circuit courts .
There is no constitutional or statutory provision conferring upon circuit courts
jurisdiction to try misdemeanor cases and therefore the county courts have that
jurisdiction.
A misdemeanor is a crime (775.08, F. S.) and a prosecution therefore is a
"criminal action" and "criminal case" within the contemplation of 948.01(1), F.
S., reading as follows:
(1) Any court of the state having original jurisdiction of criminal
actions, where the defendant in a criminal case has been found guilty by
the verdict of a jury or has entered a plea of guilty or a plea of nolo
contender or has been found guilty by the court trying the case without a
jury, except for an offense punishable by death, may at a time to be
determined by the court, either with or without an adjudication of the
guilt of the defendant, hear and determine the question of the probation
of such defendant. (Emphasis supplied.)
Consequently, a county court is authorized to place on probation a defendant
charged with driving while intoxicated, reckless driving, or any other mis-
demeanor, after such defendant pleads guilty or nolo contender or is found guilty
by a jury or by the court trying the case without a jury.
And if such a defendant is placed on probation, he must be placed under the
supervision of the Parole and Probation Commission (948.01(5), F. S.), with the
result that the commission would be required to supervise him.

073-24-February 15, 1973
MUNICIPALITIES
ABOLITION OF MUNICIPAL COURT
To: C. Fred Jones, Representative, 59th District, Auburndale
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May a municipality, by ordinance, abolish its municipal court
without first amending its charter to delete the provision creating such
court?
SUMMARY:
A municipality may abolish its municipal court by ordinance, as
authorized by 168.031, F. S., without first amending its charter act to
delete the provision creating such court.
Your question is answered in the affirmative.

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073-25 ANNUAL REPORT OF THE ATTORNEY GENERAL

In abolishing its municipal court by ordinance, the municipality will be acting
under constitutional authority, 20(d)(4) of revised Art. V, State Const., as
implemented by general law, 168.031, F. S. (1972 Supp.). Section 168.031(1)
provides that:
(1) Any municipal court existing on April 26, 1972, may be
abolished by ordinance of the governing body of that municipality in the
manner prescribed in this section, whether such municipal court was
established by special law, municipal charter, ordinance, or otherwise by
law. (Emphasis supplied.)
Ordinarily, of course, a city's special charter act will prevail over a general law.
An established exception to this general rule is that a general law will take
precedence over a conflicting provision of a special charter act when an intent to do
so is clearly apparent from the language of the general law. See Bryan v. City of
Miami, 190 So. 772 (Fla. 1939); Town of Hallandale v. Broward County Kennel
Club, 10 So.2d 810 (Fla. 1942). Here, acting under constitutional authority, the
legislature has declared, in effect, that municipal courts may be abolished by
municipal ordinance even though such courts were established by municipal
charters. It necessarily follows that no change in a municipal charter is required in
order to do so.

073-25-February 15, 1973
PROFESSIONAL AND OCCUPATIONAL REGULATION
DISTINCTION BETWEEN PROFESSIONS AND OCCUPATIONS
To: Charles H. Weber, Senator, 37th District, Fort Lauderdale
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
What is the distinction between a profession and an occupation for
the purposes of 20.30(9) and (10), F. S.?
SUMMARY:
A "profession" implies specialized intellectual training and
knowledge of some department of learning, science, or art as
distinguished from mere skill in employment habitually engaged in for
livelihood or gain; however, in a particular statute, the legislature may
disregard the distinction, depending upon its purpose and intent.
Section 20.30 was enacted as a part of the Governmental Reorganization Act,
Ch. 69-106, Laws of Florida. It establishes three divisions-the Division of
Professions, the Division of Occupations and the Division of General
Services-under the Department of Professional and Occupational Regulation.
Subsections (9) and (10) list the several examining and licensing boards of this state
under the Division of Professions or the Division of Occupations, respectively;
however, subsection (3) of the section provides that the divisions are not to have
separate directors but are to be administered directly by the secretary of the
department.
The designation of the department as the department of "professional and
occupational regulation" is consistent with the legislative purpose to transfer all
licensing and examining boards into a single state department in accordance with
the purpose and intent of Art. IV, 6, State Const., requiring governmental
reorganization, and providing that boardsrs authorized to grant and revoke
licenses to engage in regulated occupations shall be assigned to appropriate

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-26

departments and their members appointed for fixed terms, subject to removal only
for cause." However, the legislative purpose in separating the licensing and
examining boards into the two Divisions of Professions and Occupations is not
immediately apparent.
It is true that some distinction has been made between a profession and an
occupation. In Lambert v. Mullan, 83 So.2d 601 (Fla. 1955), the court said that the
attributes of generally recognized professions are "attainments in specialized
intellectual training and knowledge of some department of learning, science, or art
as distinguished from mere skill in employment habitually engaged in for
livelihood or gain." Accord: Black's Law Dictionary (4th ed.), p. 1375. One's
"occupation" is the particular business, profession, trade, or calling which engages
one's time and efforts-an employment in which an individual regularly engages,
or the vocation of his life. Id., p. 1230. Generally, the distinction between a
profession and an occupation has been made by the court in interpreting a
particular statute; and, in the final analysis, the question of whether a particular
occupation is to be deemed a "profession" depends upon the legislative intent in
adopting that statute. For example, the occupational license tax on professions
levied by the statute in effect in 1938 was held not to include such professional
persons as school teachers, journalists, ministers of the gospel, musicians,
ballplayers, professional entertainers, registered nurses, or pharmacists who
prepare and dispense drugs in connection with their own retail drug businesses.
See Lee v. Gaddy, 183 So. 4 (Fla. 1938). Accord: Lambert v. Mullan, supra, and
AGO 071-47, holding that registered nurses and pharmacists are not engaged in the
practice of a "profession" within the meaning of the occupational license tax
provisions of 205.461, F. S. 1971. It is a significant here that the constitutional
provision requiring governmental reorganization to include boards authorized to
"grant and revoke licenses to engage in regulated occupations" apparently refers to
all regulated occupations, whether ordinarily thought of as professional or as
nonprofessional, and that other legislative acts concerned with these examining
and licensing boards make no such distinction. See 215.37, F. S., relating to the
deposit of all fees, license charges, and other charges made by examining and
licensing boards, and 455.01, id., defining "administrative board" to mean
"minor regulatory boards created by the state." Both of these statutes list the
examining and licensing boards here in question without separating them into
"professional" or "occupational" boards; and, as noted above, under the express
terms of 20.30, supra, the two divisions of "professions" and "occupations" are
not administered separately but are administered directly by the secretary of the
department. In these circumstances, the distinction as it appears in 20.30, supra,
does not serve any discernible purpose; and the legislature might wish to consider
grouping all of these regulatory boards into a single "division of professions and
occupations."

073-26-February 16, 1973
STATE AGENCIES
FINANCIAL MATTERS-AUTHORITY TO ACCEPT CREDIT
CARDS IN PAYMENT FOR GOODS AND SERVICES
To: L. K. Ireland, Jr., Secretary, Department of Administration, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Do state agencies have the authority to enter into agreements

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073-26 ANNUAL REPORT OF THE ATTORNEY GENERAL

and accept credit card payments as compensation for goods and services
sold?
2. If question 1 is answered in the affirmative, what recourse
would such agencies have for losses incurred in connection with such
sales?
3. If question 2 is answered in the affirmative, would a state
agency be obligated to accept any credit cards willing to meet the
conditions specified for a particular credit card company?
SUMMARY:
In the absence of any statutory authority a state agency may not
accept credit cards in payment of goods and services-or licenses or
taxes-supplied or collected by it.
Your inquiry does not make clear the types of goods and services that are to be
"sold" by the state agencies. Many state agencies are, of course, responsible for
issuing regulatory licenses of one kind or another, for which they charge a fee; and
others collect taxes of various kinds. All of such fees and taxes, when collected,
become state funds subject to control and disposition by the state, through the
legislature. See, for example, 215.37, F. S., providing for the disposion of fees and
other charges collected by examining and licensing boards. And any sale of goods
or services by the state or its agencies must be authorized by law, the terms of which
must be substantially followed, including the mode or medium of payment
prescribed by the statute. See 81 C.J.S. States 107, p. 1079, Cf. 273.05, F. S.,
providing for the sale of state-owned surplus tangible personal property. It should
be noted also that an administrative agency or officer does not possess any inherent
powers. Such agency is limited to the powers granted, either expressly or by
necessary implication, by the statute creating it. St. Regis Paper Co. v. State, 237
So.2d 797 (1D.C.A. Fla., 1970); 1 Fla. Jur. Administrative Law 22. Accord:
Attorney General Opinion 058-228.
You state that certain credit card companies are willing to waive the usual
service charge made by them for the credit card services rendered to commercial
enterprises if the state agencies will abide by certain stipulated conditions, namely,
the establishment by the state agency of a separate bank account in the credit card
bank solely for the deposit of credit card sales invoices, and the agreement of the
state agency to stand the loss when it honored a credit card that had expired or that
had been canceled, and which it had failed to verify prior to making the sale.
I must advise against a state agency's entering into such an
agreement-whether for the sale of "goods or services" or for the collection of
license fees or taxes. In the first place, the deposit of state funds is governed strictly
by statute, see 18.101 and 18.102, F. S. (1972 Supp.). A special credit card bank
account established by a state agency for the purpose of depositing credit card sales
invoices is neither a "clearing" nor a "revolving" account within the purview of
these statutes. And I have the view that, if such an account is to be established, it
must be done pursuant to legislative authority with appropriate legislative
guidelines. Cf. AGO 071-77, holding that, in the absence of specific statutory
authority, the Department of Professional and Occupational Regulation cannot
establish a clearing trust fund into which the department would deposit all receipts
on behalf of all boards and from which the department would transfer amounts
assessed against each board and distribute the balance of the receipts to each
board's operating trust fund.
In the second place, the adoption of such a method of payment would
inevitably result in some loss because of the expiration of a credit card, the
cancellation of the card by the credit card bank, or failure of a state agency to verify
the account's validity as required--usually when the sale or charge is fifty dollars or
more. And I could not, in good conscience, approve a method of financing the sales
of a state agency's goods or services that would inevitably result in some loss to the

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-27

state, and certainly would require additional expense in checking on the status of a
particular credit card customer in order to minimize such loss, in the absence of
statutory authority, express or necessarily implied, to do so.
I have not overlooked the fact that some state and county officials customarily
accept checks in payment of certain licenses and taxes, contrary to the general rule
that, in the absence of a statute so providing, taxes must be paid in cash or money or
legal tender. See 84 C.J.S. Taxation 623, p. 1242. Accord: Peninsula Land Co. v.
Howard, 6 So.2d 384 (Fla. 1942); Wadsworth v. State, 142 So. 529 (Ala. 1932). This
custom and usage is apparently recognized by statute as to occupational and
beverage licenses and sales taxes. See 832.06, F. S., providing for the refund to the
tax collector of occupational and beverage license and sales tax funds forwarded to
the departments concerned by the tax collector when paid by a check that turns out
to be worthless. And see 215.34, id., providing the procedure, as between the state
treasurer and the state agency making the deposit, for handling a worthless check
given in payment of any "licenses, fees, taxes, commissions or charges of any sort
authorized to be made under the laws of the state and deposited in the state treasury
S. ." It might be noted that there is nothing in such statutes to indicate that the
acceptance of the check by the official constitutes anything other than a conditional
payment and that if the check is never presented or is dishonored, the tax or fee
remains a charge. See 84 C.J.S. Taxation 623, p. 1243.
In any event, I find nothing in the statutes referred to above-or in any other
statute-from which it may be inferred that a state agency or official may enter into
an agreement with a credit card bank providing for the payment of "goods and
services"--or license fees or taxes-under the bank's credit card system, agreeing
that any loss incurred through the use of the system would be borne by the state, and
providing for the establishment in such bank of a separate bank account for the
purpose of depositing the credit card invoices. And in the absence of any such
authority, express or necessarily implied, I must advise against the use of such a
system by a state agency.
Accordingly, your first question is answered in the negative. This answer
makes it unnecessary to reply to your second and third questions.

073-27-February 16, 1973
ELECTRICAL CONTRACTORS
COUNTY COMPETENCY EXAMINATION AND REGULATION
OF CONTRACTOR CERTIFIED BY FLORIDA ELECTRICAL
CONTRACTORS' BOARD PROHIBITED
To: Ray Mattox, Representative, 57th District, Winter Haven
Prepared by: Richard Bennett, Assistant Attorney General
QUESTIONS:
1. Has the legislature by enacting Ch. 71-224, Laws of Florida
(part VII, Ch. 468, F. S.), creating the Florida Electrical Contractors'
Licensing Board, acted to preempt the field?
2. Does Ch. 71-224, Laws of Florida, prevail over any conflicting
special laws?
SUMMARY:
To the extent that the building trade code of Pinellas County, as
authorized by Ch. 57-1727, Laws of Florida, is inconsistent with Ch.
71-224, Laws of Florida, said code is void and of no effect, the legislature
having preempted the field of regulation and licensing of electrical
contractors by Ch. 71-224, supra.

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073-27 ANNUAL REPORT OF THE ATTORNEY GENERAL

Chapter 71-224, Laws of Florida, effective September 1, 1971, creates the
Florida Electrical Contractors' Licensing Board. The purpose of the board is to
protect the life, health, property, and public welfare of the state's citizens by
requiring that "any person desiring to obtain a certificate to engage in the business
(of electrical contracting) as herein defined on a statewide basis shall be required to
establish his competency and qualifications to be certified as herein provided."
(Emphasis supplied.) Chapter 71-224, supra [468.180, F. S.]. Section 5(6) of the
act [468.184(6), F. S.] provides:
When a certificate holder desires to engage in contracting in any area of
the state, as a prerequisite therefore, he shall only be required to exhibit to
the local building official, tax collector or other authorized person in
charge of the issuance of licenses and building permits in the area,
evidence of holding a current state certificate of competency accom-
panied by the fee for the occupational license and permit required of
other persons. (Emphasis supplied.)
The language of 5(6) makes it abundantly clear that the legislature intended that
the presentment of a certificate issued by the board accompanied by the proper fee
for the occupational license and permit would be the only additional requirement
for engaging in business in any part of the state.
The legislature provided in 13(2) of the act [468.192(2), F. S.] that a
municipality, city, or county may collect occupational license and inspection fees
for engaging in contracting or examination fees "from persons who are registered
with the local boards pursuant to local examination requirements." (Emphasis
supplied.) And 13(6) provides that municipalitiesie, cities or counties may
continue to provide examinations for their territorial area, provided that a
certificate has not been issued by the board." (Emphasis supplied.)
In my opinion, it appears beyond a doubt that the legislature has acted in this
area to preclude cities, counties, and municipalities from regulating and examining
for competency those persons issued a certificate by the State Board of Electrical
Contractors. Therefore, by enacting Ch. 71-224, supra, the legislature has acted to
preempt the field.
Your first question is answered in the affirmative.
In 1957, the legislature, by passing Ch. 57-1727, Laws of Florida,authorized
the Board of County Commissioners of Pinellas County to enact the building trade
code that is the subject of this opinion. By the provisions of said building trade code
all electrical contractors are required to take and pass an examination and be issued
a certificate of competency as a prerequisite to engaging in business in the county.
It is true that ordinarily a special act is an exception from and prevails over a
conflicting general law. However, one of the fundamental rules of construction is
that the legislative intent must be ascertained and effectuated. City of St.
Petersburg v. Siebold, 48 So.2d 291 (Fla. 1950). And in this instance it is clear from
the language of Ch. 71-224, supra, that the legislature intended to regulate and
license electrical contractors and authorized such licensed individuals to engage in
business in any part of the state.
In Siebold, supra, the question before the Supreme Court was whether a
general act repealed a special act. The court stated the following rule of
construction:
A general Act may operate to repeal repugnant local or special laws,
though containing no general repealing clause, where the Legislature
intended to repeal all conflicting local or special laws, is made plain by
the terms and purposes of the general Act. [City of St. Petersburg v.
Siebold, 40 So.2d 291 (Fla. 1950) at 292 and 293.]
And the rule that a general act will not be held to impliedly repeal or modify a

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-28

special or local act does not apply where the general act is a general revision of the
whole subject, as is the situation with regard to the matter before me for
consideration. City of Miami v. Kichinko, 22 So.2d 627 (Fla. 1945).
In summation, it is my opinion that the legislature intended Ch. 71-224, supra,
to be a general revision of the whole field of regulating and examining electrical
contractors who wish to engage in business statewide and prevails over those
sections contained in any special law that are clearly incompatible and repugnant to
those of Ch. 71-224.

073-28-February 20, 1973
MOTOR VEHICLES
DAMAGE RELEASE STICKERS-REPAIRMAN REPORTS
REQUIRING POLICE INSPECTION-AUTHORIZED
REPAIRS-DESIGN, ATTACHMENT, ISSUANCE
To: Ralph Davis, Executive Director, Department of Highway Safety and Motor
Vehicles, Tallahassee
Prepared by: James M. Wallace, Assistant Attorney General
QUESTIONS:
1. Must the report required under 316.065(5), F. S. (1972 Supp.),
be written?
2. When a garageman or repairman reports to the nearest police
authority a motor vehicle damaged in an accident, struck by the
discharge of a firearm, or which shows evidence of having been
involved in the commission of a crime, pursuant to 316.065(5), F. S.
(1972 Supp.), is that police authority required to inspect the motor
vehicle and, if appropriate, affix a damage release sticker thereto?
3. When a motor vehicle has been damaged in an accident, struck
by the discharge of a firearm, or shows evidence of having been involved
in the commission of a crime, and does not bear a damage
release sticker, is a damage release sticker required in order to perform
repairs not related to the damage arising from said accident or crime,
e.g., new brakes, new muffler, etc.?
4. Are damage release stickers to be uniform in appearance?
5. Are damage release stickers to be affixed in a designated
location?
6. Are damage release stickers to be permanently affixed?
7. Will the Department of Highway Safety and Motor Vehicles
furnish report forms to garagemen or repairmen for motor vehicles not
possessing damage release stickers?
8. Are garagemen or repairmen required to retain file copies of
such reports?
9. Are damage release stickers to be centrally issued by the
Department of Highway Safety and Motor Vehicles?
SUMMARY:
When a garageman or repairman is in receipt of a motor vehicle
which does not bear a damage release sticker and which has been
damaged in an accident, struck by the discharge of a firearm, or shows
evidence of having been involved in the commission of a crime, such
garageman or repairman must, within twenty-four hours, report or cause
a report to be made to the nearest local police station or Florida Highway
Patrol office. The report shall contain the year, license number, make,

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073-28 ANNUAL REPORT OF THE ATTORNEY GENERAL

model, and color of the damaged motor vehicle and the name and
address of the owner or person in possession of the vehicle. Section
316.065(5), F. S. (1972 Supp.), does not require that such report by
garagemen or repairmen be made in writing.
When such a report has been made to the appropriate police
authority, that police authority is under a duty to inspect the reported
motor vehicle and to attach a damage release sticker, if warranted.
After an inspection by the appropriate police authority, if a damage
release sticker is not attached to the motor vehicle, it is unlawful for any
person to perform any repairs to the said vehicle. When a motor vehicle
has been damaged by accident or the discharge of a firearm, or shows
evidence of having been involved in the commission of a crime, no
repairs of any nature whatsoever may be made, including repairs for
"wear and tear," unless and until a damage release sticker has been
attached to said vehicle by the appropriate police authority pursuant to
316.065, F. S.
Section 316.065(3), F. S. (1972 Supp.), sets forth only that the
damage release sticker shall describe the motor vehicle by year, make,
model, and license number. Neither this section nor any other provision
of law sets forth the appearance of the damage release sticker in regard to
color, size, or other characteristics.
Chapter 72-164, Laws of Florida [316.065, F. S.], does not require
that damage release stickers be permanently attached to the motor
vehicle in question, nor does said chapter designate a specific location
for attachment.
The Department of Highway Safety and Motor Vehicles is neither
authorized nor under a duty to issue damage release stickers for the use
of the various police authorities throughout the state, with the exception
of the Florida Highway Patrol which is a division of the department.
The provisions of Ch. 72-164, Laws of Florida [316.065(3)-(6), F. S. (1972
Supp.)], generally require that a motor vehicle damaged in an accident, struck by
the discharge of a firearm, or which shows evidence of having been involved in the
commission of a crime be reported to the nearest police authority, and that repairs
may not be performed unless the vehicle bears a "damage release sticker" which
has been affixed by the police authority.
AS TO QUESTION 1:
Section 316.065(5), F. S. (1972 Supp.), provides, in part, that any person in
charge of a garage or repair shop must, within twenty-four hours, report the receipt
of a motor vehicle damaged in an accident, struck by the discharge of a firearm, or
which shows evidence of having been involved in the commission of a crime to the
nearest local police station or Florida Highway Patrol office before performing any
repairs thereon. This section further provides that "[t]he report shall contain the
year, license number, make, model and color of the vehicle and the name and
address of the owner or person in possession of the vehicle." The report is to be
made to the nearest local police station or Florida Highway Patrol office within
twenty-four hours after the motor vehicle is received and before any repairs are
made to the vehicle.
The mandate of 316.065(5), supra, does specify the information in particular
which must be supplied to the appropriate police authority; but this section does
not specify that the information must be submitted in written form.
In the above-quoted section the word "contain" could possibly give rise to the
presumption that the information must be "contained in a written report";
however, the judicial interpretations of the word "contain" do not necessarily lead
to that conclusion. The word "contain" has been held to be synonymous with such
words as "include," "comprise," "comprehend," "embrace," "involve," and such

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-28

other words which relate to actions, emotions, physical matter, objects, structures,
and a good many things other than written reports. See Miller v. Johnston, 91 S. E.
593 (N.C. 1917); see also 9 Words and Phrases, p. 29, et seq. Within this context it
would appear that the mandate of 316.065(5), supra, is to require garagemen or
repairmen to supply those particular items of information set out above to the
nearest local police station or Florida Highway Patrol office within twenty-four
hours from the receipt of a motor vehicle not bearing a damage release sticker which
shows evidence of having been damaged in an accident, or from having been struck
by the discharge of a firearm, or which shows evidence of having been involved in
the commission of a crime. The reporting of this information alone is that which is
required; and there is no requirement in 316.065, F. S., that such information must
be supplied in written form.
AS TO QUESTION 2:
I believe that 316.065(3) and (4), F. S. (1972 Supp.), fairly suggests the answer
to your second question:
(3) Upon the completion of his investigation, each officer
investigating an accident resulting in damage to a vehicle shall attach to
said damaged vehicle a damage release sticker authorizing repairs to be
made thereon. Said sticker shall describe the vehicle by year, make,
model, and license number. (Emphasis supplied.)
(4) It is unlawful for any person in charge of any garage or repair
shop, or any other person repairing any motor vehicle, to make repairs
upon any damaged motor vehicle not possessing a damage release sticker
authorized by and issued pursuant to this section when the external
condition of the vehicle gives notice that the vehicle has been involved in
an accident or struck by the discharge from any type of firearm.
(Emphasis supplied.)
By its plain language, 316.065(3), supra, applies only to accidents
investigated by an officer and only there directs the attachment of a damage release
sticker by the officer to the damaged motor vehicle. The absence of such a direct
expression regarding a police officer's duty to inspect a motor vehicle damaged by
the discharge of a firearm or otherwise showing evidence of having been involved
in the commission of a crime should not be enough to destroy the legislative intent
or rational operation of the chapter. Absent such an implied duty, the express duties
of the chapter become useless and the chapter's operation becomes negatory. If at
all possible, such an unreasonable and absurd construction should be avoided.
Simmons v. State, 36 So.2d 207 (Fla. 1948); Rodriguez v. Jones, 64 So.2d 278 (Fla.
1953).
An examination of 316.006 (jurisdiction) and 316.016 (enforcement), F. S.,
demonstrates conclusively that the provisions of this chapter shall be enforced by
the state, municipalities, and counties within their jurisdictional limits. Section
316.016, supra, applies with the same force and effect to the provisions of Ch.
72-164, supra.
Therefore, I conclude that upon a report (as required by Ch. 72-164, supra) to
the appropriate police authority, such police authority is under a duty to inspect the
motor vehicle in question and to attach a damage release sticker, if warranted.
AS TO QUESTION 3:
Section 316.065(5), F. S. (1972 Supp.), expressly provides, in part:
Any person in charge of any garage or repair shop to which is brought
any damaged motor vehicle which shows evidence of having been
involved in an accident, or which shows evidence of having been struck
by a bullet or involved in the commission of a crime, or any other person
to whom is brought for the purpose of repair a damaged motor vehicle
showing such evidence, shall make a report, or cause a report to be made,

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073-28 ANNUAL REPORT OF THE ATTORNEY GENERAL

to the nearest local police station or Florida highway patrol office within
twenty-four hours after the motor vehicle is received and before any
repairs are made to the vehicle. (Emphasis supplied.)
This statement is clear and unambiguous and therefore should not require any
construction. Wagner v. Botts, 88 So.2d 611 (Fla. 1956). It is noteworthy that this is
the only sentence in Ch. 72-164, supra, using the word "repairs" as a noun with the
word "any" preceding it as an adjective, for the legislature may well have intended
an extra emphasis for this phrase. The judicial construction of the word "any" when
used as an adjective has been synonymous with the words "all," "each and every of
the class" modified by that adjective, "every," and such other definitions which
would give the adjective a plenary modification of the noun. See 3A Words and
Phrases, p. 53, et seq. Therefore, I must conclude that a garageman or repairman
may not lawfully perform any repairs on a vehicle which does not bear a damage
release sticker when such vehicle has been damaged in an accident, or struck by the
discharge of a firearm, or shows evidence of having been involved in the
commission of a crime.
AS TO QUESTION 4:
Section 316.065(3), F. S. (1972 Supp.), specifies only the information to be
contained on the damage release sticker and does not set forth its appearance in
regard to size, color, or other characteristics: saidad sticker shall describe the
vehicle by year, make, model, and license number." Therefore, I must conclude
that the appearance or design of damage release stickers is not set out in 316.065,
F. S., nor in any other provision of law.
AS TO QUESTION 5:
Chapter 72-164, supra, does not prescribe any particular place or location on
the motor vehicle for the placement of a damage release sticker. I assume such
direction has not been included in the statute because any area that might be so
designated might prove to be unsuitable for such a sticker due to damage to or
partial destruction of the vehicle or parts thereof. I would presume, however, that
the police authorities throughout the state would conspicuously attach to or display
the damage release sticker on such parts of the damaged motor vehicle as would
make the same readily visible to, and aid, owners, operators, and repairmen.
AS TO QUESTION 6:
Your sixth question apparently anticipates that some owners of damaged motor
vehicles may delay repairs for a substantial period of time after a damage release
sticker has been affixed to the vehicle pursuant to Ch. 72-164, supra, during which
time the sticker may become loose, lost, or subject to vandalism.
Chapter 72-164, supra, makes no provision for permanent attachment of the
damage release sticker. I assume that if a sticker were duly attached but lost, a
duplicate could be obtained from the police authority which investigated and
authorized repairs to the damaged motor vehicle. In any event, no repairs may be
lawfully made unless and until a damage release sticker is attached.
AS TO QUESTION 7:
Question 1 has been answered in the negative in that reports by garagemen or
repairmen under 316.065(5), F. S. (1972 Supp.), are not required to be in writing to
the appropriate police authority. Therefore, your seventh question, which relates to
the furnishing of report forms to garagemen and repairmen, is moot.
AS TO QUESTION 8:
Your eighth question relates to the retention of file copies of report forms by
garagemen or repairmen. Since written reports are not required to be submitted by
such garagemen or repairmen as per question 1, question 8 has been mooted
thereby.

46

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-29

AS TO QUESTION 9:
Neither 316.065, supra, nor any other provision of law authorizes the
Department of Highway Safety and Motor Vehicles to centrally issue damage
release stickers to be used by county and municipal police authorities. The
department is a creature of its enabling legislation only and is strictly limited in its
powers and duties. Where the authority of such a legislative entity is subject to
reasonable doubt, the exercise of such an authority should be arrested immediately.
State v. Atlantic Coastline R. Co., 47 So. 969 (Fla. 1908). Accord: State ex rel. Burr v.
Jacksonville, 71 So. 474 (Fla. 1916); State ex rel. Wells v. Western U. Tel. Co., 118
So. 478 (Fla. 1928); Gessner v. Del-Air Corp., 17 So.2d 522 (Fla. 1944); Crandon v.
Hazlett, 26 So.2d 638 (Fla. 1946); Edgerton v. International Co., 89 So.2d 488 (Fla.
1956).
However, it must be noted with regard to Ch. 316, F. S., that the jurisdiction
and enforcement thereof by the state is the responsibility of the Florida Highway
Patrol and the Florida Public Service Commission. See 316.016(1)(a) and (b), F. S.
The Florida Highway Patrol is a division of the Department of Highway Safety
and Motor Vehicles under the Governmental Reorganization Act of 1969 [see
20.24(2)(a), F. S.], and as such it is the responsibility of the department to make
available such damage release stickers as may be necessary for the Division of
Florida Highway Patrol to execute its duties under Ch. 72-164, supra.
20.05 Heads of departments; powers and duties.-Each head of a
department, except as otherwise provided herein, shall:
(1) Plan, direct, coordinate, and execute the powers, duties, and
functions vested in that department or vested in a division, bureau, or
section of that department; powers and duties assigned or transferred to a
division, bureau, or section of the department shall not be construed to be
a limitation upon this authority and responsibility. (Emphasis supplied.)
Therefore, I conclude that the Department of Highway Safety and Motor
Vehicles is neither under a duty nor does it have the authority to issue damage
release stickers for the use of any police authority except the Division of Florida
Highway Patrol.

073-29-February 22, 1973
CONFLICT OF INTEREST
COUNTY TAX ASSESSOR RETAINING PRIVATE BUSINESS
AS REAL ESTATE APPRAISER
To: County Tax Assessor
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May a county tax assessor retain his private practice as a real estate
appraiser if he engages in his private practice on his own time, uses his
own employees, and devotes his full time to the duties of his elected
office?
SUMMARY:
Under the Standards of Conduct Law, 112.311-112.318, F. S., a
county tax assessor should not engage in the business of real estate
appraiser of property located in the county.
In 112.311, F. S., the legislature has declared as the policy of this state that no
public officer or employee

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073-30 ANNUAL REPORT OF THE ATTORNEY GENERAL

shall have any interest, financial or otherwise, direct or
indirect, or engage in any business, transaction, or professional activity or
incur any obligation of any nature which is in substantial conflict with
the proper discharge of his duties in the public interest. .
To implement this policy, the legislature has expressly prohibited a public officer
or employee from accepting employment or engaging in any business or
professional activity "which he might reasonably expect would require or induce
him to disclose confidential information acquired by him by reason of his official
position." Section 112.313(4), id.
Section 112.313(6), id., prohibiting a public officer or employee from
accepting other employment "which might impair his independence of judgment
in the performance of his public duties," was invalidated by the Supreme Court in
State v. Llopis, 257 So.2d 17 (Fla. 1971), on the ground of vagueness; however,
112.314(2), id., prohibiting a public officer or employee from having any
"personal investments in any enterprise which will create a substantial conflict
between his private interests and the public interest," is still in full force and effect.
The department of assessments of your county has the duty and responsibility
vested by law in the office of county tax assessor and, in addition, is required to
"perform a continuing review of the assessment and exemption of all real and
personal property within the county sufficient to permit the annual presentation of
a tax equalization study and report for the board of equalization. ." See
601.1(3), of the county charter. The county tax assessors are charged with the duty
and responsibility of arriving at a "just valuation" of taxable property in the
county, as required by Art. VII, 4, State Const., in accordance with the legislative
directions contained in Ch. 193, F. S. See 192.011, F. S. While the Standards of
Conduct Law was not intended to prevent a public officer or employee from
engaging in other employment that does not interfere with the full and faithful
discharge of his public duties, see 112.316, id., it seems to me that some conflict
between the director's duties as head of the department of assessments and his
private interests arising out of his activities in connection with his private real
estate appraisal business would inevitably arise, thereby interfering with the full
and faithful discharge of his official duties.
In these circumstances, I must advise you that, in my opinion, the continuation
of your practice as a private real estate appraiser of property located within the
county would be contrary to the Standards of Conduct Law, supra.

073-30-February 22, 1973
PUBLIC RECORDS
SALARIES OF ASSISTANT STATE ATTORNEYS
To: Donald G. Nichols, State Attorney, Jacksonville
Prepared by: Henry George White, Assistant Attorney General
QUESTION:
Are the salaries paid to assistant state attorneys public records as
defined in Ch. 119, F. S.?
SUMMARY:
Records of a state attorney's office concerning the salaries paid to
assistant state attorneys are public records within the meaning of
119.01 and 119.011, F. S., and as such are open to public inspection at
all times.

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-30

Section 119.01, F. S., commonly called the Public Records Law, reads as
follows:
All state, county and municipal records shall at all times be open for a
personal inspection of any citizen of Florida, and those in charge of such
records shall not refuse this privilege to any citizen.
Section 119.011, F. S., 1971, provides:
For the purpose of this act:
(1) "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
pursuant to law or ordinance or in connection with the transaction of
official business by any agency.
(2) "Agency" shall mean any state, county or municipal officer,
department, division, board, bureau, commission or other separate unit
of government created or established by law. (Emphasis supplied.)
Section 119.07(1), F. S., states:
(1) Every person having custody of public records shall permit
them to be inspected and examined at reasonable times and under his
supervision by any person, and he shall furnish certified copies thereof
on payment of fees as prescribed by law.
In AGO 071-243 it was held that reports made by engineers in connection with
the collapse of the roof of a school building, and received by a school board as a part
of its official investigation of the incident, were public records within the meaning
of 119.011, F. S. In AGO 071-394 it was observed that the receipt by a school board
of information relating to the background and qualifications of applicants for the
position of superintendent for the school district was an essential part of the process
of employing a superintendent. Accordingly, it was held that the records pertaining
to the qualifications of applicants were "made or received pursuant to law" and
were public records within the purview of 119.011, F. S. The conclusions reached
in AGO's 071-243 and 071-394 suggest the approach which must be taken with
respect to the question you pose.
A state attorney is authorized to appoint such assistants as may be authorized
by law. Article V, 17, State Const. He is also authorized to set the salary of his
assistants, not to exceed 90 percent of his own salary, and the salary of assistant state
attorneys must be paid from funds appropriated for that purpose. Section 27.181(4),
F. S. (1972 Supp.). Also see Ch. 72-734, Laws of Florida. Section 27.33, F. S. 1971,
provides in part as follows:
(1) On or before November 15, biennially, [annually; see 216.023,
F. S.] prior to the meeting of the legislature, each state attorney shall
submit to the department of administration a written report containing an
estimate in itemized form showing the amount needed for operational
expenses for the two years [year] beginning July 1, thereafter. Each such
estimate shall itemize the expenditures required for the state attorney
submitting it and for his assistants, as follows:
(a) Salary of state attorney.
(b) Salaries of assistant state attorneys.

(5) After this act takes effect as law, all of the provisions of chapter
216, which relate to the budgets and expenses of state officers shall be
applicable to state attorneys and their budgets and expenses.

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073-31 ANNUAL REPORT OF THE ATTORNEY GENERAL

Finally, it should be noted that the payrolls of the state attorneys' offices are
handled through a central office maintained by the Judicial Administrative
Commission. See 43.16, F. S. These payroll procedures are based upon
information furnished by the state attorneys. It can thus be seen that the records of a
state attorney's office concerning the salaries of assistant state attorneys are records
made "pursuant to law" and consequently are public records within the meaning of
119.01 and 119.011, F. S.
I am aware that the disclosure of information regarding salaries might prove
embarrassing to some employees or have a detrimental effect on office morale. But
these considerations cannot change the clear mandate of the Public Records Law.
See AGO 072-356 in which it was noted that concern for the security of the state's
highest officials could not overcome the requirement that advance itineraries of
officials who use executive aircraft be open to public inspection pursuant to
119.01, F. S. The legislature must have believed the inconvenience which results
from compliance with 119.01 and 119.07(1), F. S., to be outweighed by the
benefits which flow from free public access to public records. I am aware of no
statutory or common-law provision which excepts records pertaining to salaries of
public employees from the provisions of the public records law. Until such time as
the legislature chooses to create such an exception, it is my opinion that the records
of your office concerning the salaries of your assistants must be open to public
inspection. See Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417(5th Cir.
1968); and State ex. rel. Cummer v. Pace, 159 So. 679 (Fla. 1935).

073-31-February 27, 1973
ANTINEPOTISM LAW
STEPDAUGHTER-IN-LAW NOT "RELATIVE"
To: Curtis Beville, Sumter County Tax Collector, Bushnell
Prepared by: Stephen F. Dean, Assistant Attorney General
QUESTION:
Would a stepdaughter-in-law be included within the definition of a
relative for purposes of 116.111, F. S.?
SUMMARY:
A stepdaughter-in-law would not be included within the definition
of a "relative" for purposes of 116.111, F. S.
The question as stated above arises because of the confusion generated by the
relationship of a girl who is married to one's stepson. The specific relationship of a
stepdaughter-in-law is not included within the definition of "relative" set forth in
116.11 1(1)(c), F. S. The aforementioned section does include within the definition
of "relative," stepson, stepdaughter, and daughter-in-law. The legislature has
defined "relative" in 116.111(1)(c), F. S., to include stepfather, stepmother,
stepson, stepdaughter, stepbrother, and stepsister. Therefore, it must be presumed
that the legislature did not desire to extend the prohibition to the specific
relationship of stepdaughter-in-law. This interpretation is based upon the rule of
statutory construction, expression unius est exclusio alterius, which means that had
the legislature intended to include other relationships, it would have listed them.
Not only is the relationship of a "stepdaughter-in-law" not mentioned in the
statute, but it is not defined in any of the standard legal texts (see 40 Words and
Phrases, "Stepchild," and "Stepchildren," and 82 C.J.S. Step p. 1066), nor is it
defined in any of the decisional case law. This would appear reasonable since the
law and the statute recognize only relationships by affinity or by blood.

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-32

A relationship by blood exists between one and all persons with whom one
shares a common blood line. A relationship by affinity exists between one and the
blood relatives of one's spouse. A step relationship is a particular type of
relationship by affinity, which arises between children and the subsequent spouses
of their natural or adoptive parents. With these definitions in mind and assuming
no blood relationship other than the obvious one between the husband and his
mother, one can see that no step relationship exists between a woman and her
husband's stepfather because there is no relationship by affinity between the
woman and her husband's stepfather because neither of them is related by blood to
the other's spouse.
Since this relationship of a stepdaughter-in-law is unmentioned in the statute
and undefined in the law, I must conclude the answer must be negative.

073-32-February 27, 1973
PUBLIC OFFICERS AND EMPLOYEES
APPLICABILITY OF STATE CAREER SERVICE SYSTEM AND
STATE OFFICERS' AND EMPLOYEES' GROUP INSURANCE
PROGRAM TO EMPLOYEES OF SPECIAL DISTRICTS
OR AUTHORITIES
To: L. K. Ireland, Jr., Secretary, Department of Administration, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Are employees of the Jacksonville Transportation Authority, the
Tampa-Hillsborough County Expressway Authority, the Orlando-
Orange County Expressway Authority, the Pinellas County Transporta-
tion Authority, or the Inter-American Cultural and Trade Center,
eligible for participation in the State Officers' and Employees' Group
Insurance Program as contemplated by 112.075, F. S.?
2. Are such employees subject to the State Career Service System
as provided by Ch. 110, id?
SUMMARY:
Pending legislative or judicial clarification, neither the State Career
Service System nor the State Officers' and Employees' Group Insurance
Program should be extended to cover employees of special statutory
entities such as the various county expressway authorities or the
Inter-American Cultural and Trade Center.
Your questions are answered in the negative.
Section 112.075, F. S. (adopted by Ch. 72-399, Laws of Florida), was enacted
for the purpose of authorizing a statewide group health insurance benefit program
for all state officers and all full-time state employees holding salaried positions.
While your questions are directed specifically to employees of the agencies named
therein, it is worthy of note that the members of the governing bodies of special
statutory entities such as those here in question are not ordinarily thought of as state
"officers." For example, both my predecessor in office and I have ruled that officers
of a special district or authority are not within the purview of the dual-office
prohibition of the Constitution (Art. II, 5, State Const.). See AGO's 069-49,
071-324, and 071-328. And it has long been settled that the constitutional
provisions requiring the election by the people or appointment by the governor of
state and county officers (Art. III, 27, State Const. 1885, omitted in the 1968

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073-32 ANNUAL REPORT OF THE ATTORNEY GENERAL

Constitution) and providing that state and county officers shall hold over until their
successors are duly qualified (Art. XVI, 14, State Const. 1885; Art. II, 5, State
Const.) were not applicable to officers of a special district or authority created by
statute to perform a special state or county function or purpose. See State v. Ocean
Shore Improvement District, 156 So. 433 (Fla. 1934); State v. Reardon, 154 So. 868
(Fla. 1934) (St. Lucie Inlet District and Port Authority); State ex rel. Smith v.
Hamilton, 166 So. 742 (Fla. 1936) (school district trustee); and Town of Palm Beach
v. City of West Palm Beach, 55 So.2d 566 (Fla. 1951) (Palm Beaches Sanitary
District).
The statute defines "full-time state employees" to include "all full-time
employees of all branches or agencies of state government paid by state warrant or
from agency funds. ." It does not define "state agency." Other provisions of
the statute do, however, indicate that it was intended to apply to the state agencies
that are within the purview of Ch. 216, F. S., providing the procedure for the
planning and budgeting of state agency funds, including appropriations and
disbursements for the salaries of state officers and employees. See 112.075(7), id.,
authorizing state agencies to contribute 75 percent of the cost of individual
coverage of each officer or employee participating in the insurance program and
providing that duringig each policy or budget year no state agency shall be
permitted by the secretary of administration to contribute a greater percentage of
the premium cost for its employees than any other agency." See also subsection (6),
id., providing that, at the request of an officer or employee and upon certification of
the employing agency and approval by the secretary of administration, the state
comptroller shall deduct from the salary check of a state officer or employee the
amount of the premium payable by him.
Apparently, the agencies referred to by you are not required to comply with the
planning and budgeting procedures prescribed for all branches of state government
by Ch. 216, supra; and they are not included in the annual Appropriations Act for
state agencies. While state funds may be used to assist the Inter-American Center
Authority, appropriations of such funds to assist in financing the authority must be
made to the Department of Community Affairs. See 554.161, id. It is relevant to
note also that these agencies were not included in the Governmental
Reorganization Act (Ch. 69-106, Laws of Florida) enacted by the legislature in
compliance with the constitutional mandate of Art. IV, 6, State Const., to
reorganize the executive branch of state government--thus evidencing a legislative
determination that they are agencies which operate outside of the regular state
government.
No court decision has, to my knowledge, been rendered on this or a similar
question. However, my predecessor in office held in AGO 067-20 that the Monroe
County Antimosquito District was not an agency of the county nor a governmental
unit or board of the state within the purview of 112.12, F. S., authorizing each
"county, school board, governmental unit, department, board or bureau of this
state" to pay the premiums for health or accident insurance under group insurance
plans provided for their employees under the authority of 112.08, id. The agencies
referred to in your letter are not sufficiently different from an antimosquito district
to require a finding that they would be considered a "governmental unit,
department, board or bureau of this state" within the purview of 112.12, supra;
and there is nothing in the language of the statute here in question to indicate that,
in providing for a state group insurance program, the legislature intended to
include also such special districts and authorities.
In light of these several considerations, I am inclined to the view that such
independent statutory agencies should not be deemed to be state agencies within
the purview of 112.075, supra, even though the statutes creating them designate
each of them "an agency of the state." In Forbes Pioneer Boat Line v. Board of
Commissioners, 82 So. 346 (Fla. 1919), the court noted that the board of
commissioners of the Everglades Drainage District was a quasi-public corporation
and an agent of the state within the "drainage district" for certain definite limited

52

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-33

purposes. Similarly, the statutory entities here in question are agents of the state for
the purpose of carrying out the limited powers and authority conferred upon them
by statute within their respective territorial jurisdictions; however, in the absence
of anything to indicate, either expressly or by necessary implication, that the
legislature intended to extend its insurance program to this type of statutory entity,
I can only advise that the decision to do so be postponed pending judicial or
legislative clarification of the question.
Answering your second question: The State Career Service System prescribed
by Ch. 110, supra, is applicable to all positions in state government, except as
specifically exempted therein. Section 110.042(1), F. S., defines "state agency" or
"agency" to mean "any official, officer, commission, board, authority, council,
committee, or department of the executive branch or the judicial branch of state
government as defined in chapter 216." (Emphasis supplied.) Section
216.011l(l)(cc), id., defines the judicial branch of state government to include all
judicial offices, courts, or other units of the judicial branch of state government
which are "supported in whole or in part by appropriations made by the
legislature." And it seems to me that this definition is indicative of an intention to
include within the state's compulsory career service system only those agencies
supported in whole or in part by appropriations made by the legislature-whether
executive or judicial-and which are part and parcel of the executive and judicial
branches of state government, as distinguished from special statutory entities that
may perform a county or district purpose as well as, in some sense, a state purpose.
This conclusion is confirmed by the fact that 110.071, F. S., expressly provides
that:
The department of administration may enter into agreements with any
municipality or political subdivision of the state to furnish services and
facilities in the administration of its personnel program .
Accordingly, pending legislative or judicial clarification, it is suggested that
the State Career Service System not be extended to special statutory entities such as
those referred to in your letter.

073-33-February 27, 1973
PUBLIC DEFENDER
DISPOSITION OF FUNDS COLLECTED FROM DEFENDANTS
FOR PUBLIC DEFENDERS' SERVICES IN
MISDEMEANOR CASES
To: Irvin Frank, Jr., Public Defender, Stuart
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
When the reasonable value of the services of a public defender in a
misdemeanor case has been assessed by the court and collected from the
defendant, should these funds be remitted to the county?
SUMMARY:
When the reasonable value of the services of a public defender in a
misdemeanor case has been assessed by the court and collected from the
defendant, such funds must be remitted to the state under 27.56, F. S.,
even though the county may have contributed funds toward the payment
of the cost of defending misdemeanors or violations of county
ordinances.

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073-33 ANNUAL REPORT OF THE ATTORNEY GENERAL

The statute under the authority of which the reasonable value of the services of
the public defender becomes a lien against the defendant's property is 27.56, F. S.
As noted in AGO 067-85, such liens are, under the express terms of the statute,
enforced on behalf of the State of Florida for the purpose of helping to defray the
expenses of the statewide public defender system. Accord: Attorney General
Opinion 072-39, in which it was noted that the operation of the office of the public
defender is, primarily, the obligation of the state.
I find no changes in the applicable statutory law that would require a different
conclusion as to the expense of defending misdemeanors. Section 27.54, F. S.
(1972 Supp.), was amended at the 1972 Special Session by Ch. 72-722, Laws of
Florida (Senate Bill 10-A), to provide that cities and counties are prohibited from
contributing funds for the operation of the offices of the public defenders "except
for the purpose of defending misdemeanors and violations of municipal or county
ordinances." Senate Bill 10-A also amended 27.51(1), id., so as to add the
following provision:
The public defender may represent any person who is determined to be
insolvent, as provided in this act, who is under arrest for, or is charged
with a misdemeanor or violation of a municipal or county ordinance in
the county court. Funds for such purpose may be provided by the county
or municipality having jurisdiction of said offense.
(It should be noted that this change in the statutory law affects the conclusion
reached in AGO's 071-67, 071-105, and 072-405 respecting the authority of the
public defender to defend persons accused of misdemeanors; and those opinions
are hereby modified to the extent of the conflict with 27.51 as amended, supra.)
It is noteworthy that 27.56, supra, providing for a lien against an indigent
defendant's property to cover the reasonable value of the services of the public
defender in undertaking his defense, was amended in the 1972 Regular Session of
the Legislature by Ch. 72-41, Laws of Florida, to add an additional paragraph (2)(c)
authorizing the public defender to contract with a collection agency for the
collection of the liens therein created. However, no change was made in the other
provisions of the section, requiring the funds thereby collected to be turned over to
the state to help defray its cost in providing indigent persons with counsel. Nor was
any change made in 27.56 in the 1972 Special Session when, in addition to Senate
Bill 10-A, quoted above, the legislature also adopted House Bill 41-A [Ch. 72-733,
Laws of Florida], appropriating state funds to finance the public defender's office
for the period January 1, 1973, to June 30, 1973, for the expense of defending
indigents charged with misdemeanors or violations of city or county ordinances,
and again authorizing cities and counties to appropriate additional funds to
supplement state funds for this purpose.
In these circumstances, even though county funds may have been appropriated
to the office of the public defender for the purpose of reimbursing him for
defending insolvent defendants charged with misdemeanors or violations of
county ordinances, I find nothing in the statute that may be interpreted as
authorizing him to return to the county any portion of the moneys collected by him
under 27.56, supra. Accordingly, pending legislative or judicial clarification of
this matter, your question must be answered in the negative.

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-34

073-34--February 28, 1973
TAXATION
VALIDITY OF PROPOSED CONSTITUTIONAL AMENDMENT
LIMITING APPRAISED VALUATION OF HOMESTEAD
PROPERTY OWNED BY PERSONS 60 YEARS
OF AGE OR OLDER
To: Frank Carlucci, Representative, 18th District, Jacksonville
Prepared by: Winifred L. Wentworth, Assistant Attorney General and James D.
Whisenand, Legal Intern
QUESTION:
Is a joint resolution proposing a constitutional amendment to Art.
VII, 4, State Const., limiting the appraised valuation of homestead
property owned by persons sixty years of age or older constitutional?
SUMMARY:
A joint resolution proposing a constitutional amendment to Art. VII,
4, State Const., limiting the appraised valuation of homestead property
owned by persons sixty years of age or older appears to be
constitutionally proper under federal and Florida provisions.
The proposed constitutional amendment to Art. VII, 4, State Const., would
limit the appraised just valuation of homestead property to persons sixty years of
age or older. Under its terms such property "shall be valued for taxation at the just
valuation of the homestead at the time the owner attains age sixty or at the just
valuation of the homestead five years prior to the current valuation, whichever is
the later valuation." For reasons stated below, I would respond to the question
stated in the affirmative.
Initial consideration should be given to the effect of the federal equal
protection clause on state power to make proper and reasonable classifications for
such purposes. Loftin v. Crowley's, Inc., 8 So.2d 909 (Fla. 1942), cert. denied317
U.S. 661 (1942); Art. VII, 4, State Const.; Jackson v. Consolidated Gov. of City of
Jacksonville, 225 So.2d 497 (Fla. 1969). This guaranty is not violated by reasonable
classifications having a substantial relation to the purpose of the legislation. Cf.
Dunn v. Blumstein, 405 U.S. 330 (1972). In the economic area there must be shown
only a rational basis, rather than the more demanding test of a compelling state
interest when personal constitutional rights are limited. Attorney General Opinion
072-126.
Historically, the Florida Constitution has been viewed as a limitation on the
legislature's power to provide exemptions or equivalent special valuations. Franks
v. Davis, 145 So.2d 228 (Fla. 1962); Aeronautical Commun. Eq. v. Metropolitan
Dade Co., 219 So.2d 101 (3 D.C.A. Fla., 1969); Lanier v. Overstreet, 175 So.2d 521
(Fla. 1965). The proposed special constitutional homestead classification for the
aged appears to me to be comparable to other special valuation provisions of Art.
VII, 4, State Const. Rainey v. Nelson, 257 So.2d 538 (Fla. 1972).
In Just Valuation & Taxation League, Inc. v. Simpson, 209 So.2d 229 (Fla.
1968), the court presented a comprehensive review of equal protection
classification cases and concluded at p. 233:
So it is our opinion and we hold that the citizens of Florida had the right
by constitutional amendment to place intangible personal property in a
separate classification and to authorize the Legislature to impose a
special tax thereon and to place a limit on the amount of the tax thus to be
imposed. .
The view of the courts appears to be that preferential property tax treatment

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073-35 ANNUAL REPORT OF THE ATTORNEY GENERAL

may be accorded elderly people based either on economic factors, i.e., financial
hardship and financial exigencies of the elderly, or on a broader social concern for
geriatric problems. See Bd. of Assessors of Everett v. Formosi, 212 N.E.2d 210
(Mass. 1965); Kirby v. Bd. of Assessors of Medford, 215 N.E.2d 99 (Mass. 1966);
Jasper v. Mease Manor, Inc., 208 So.2d 821 (Fla. 1968); Art. VII, 2, State Const.
This rationale affirms the general principle that there exists a large discretion to
establish reasonable classifications when delineating objects of taxation. Cf.,
Jefferson v. Hackney, 406 U.S. 535 (1972).
In Doran v. Cullterton, 283 N.E.2d (Ill. 1972), the court considered the
statutory tax exemption for individuals over sixty-five years of age, and concluded
at p. 868:
Initially we find that the classification of individuals on the basis of
under and over 65 years of age is rational and reasonable for at this age
many persons retire and their sole financial support may be derived from
social security or private pensions. .. Moreover, various Federal
and State exemptions are granted to those over the age of 65 without
regard to the individual's personal wealth.
See Jasper v. Mease Manor, Inc., supra.
In accord with the referenced judicial authority, the proposed joint resolution
appears to me to be constitutionally proper.

073-35-February 28, 1973
COUNTY OFFICERS
COMPENSATION UNDER SECTION 145.121(2)(c),
F. S. (1972 Supp.)
To: L. Victor Desguin, Charlotte County Tax Collector, Punta Gorda
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Under 145.121(2)(c), F. S. (1972 Supp.), does a county official's
base salary remain at the level fixed by the applicable statute in effect
immediately prior to July 1, 1969?
SUMMARY:
Under 145.121(2)(c), F. S. (1972 Supp.), a county official's
compensation is computed upon the basis of his 1967 statutory salary,
plus ex officio personal income from fees, commissions, and other
compensation actually received during the fiscal year.
Your question is answered in the affirmative.
Chapter 145, F. S., was amended in 1969 to fix the salaries of county officials at
a uniform rate throughout the state, based upon the population of the county.
Section 145.121(2)(c), as amended by Ch. 70-455, Laws of Florida, provides that
those officials whose total compensation (salary plus ex officio personal income
from fees, commissions, and other compensation) was in excess of the salary
payable under the act "shall continue to be compensated under the terms and
conditions which prevailed immediately prior to July 1, 1969, until the expiration
of their present term of office ." (The statute was amended in 1972, Ch.
72-240, to extend the period during which such compensation should be paid, but it
was not otherwise changed.)
My predecessor in office consistently ruled that a county official who is

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-36

entitled to be compensated under 145.121(2)(c), F. S. (1972 Supp.), should have
his compensation computed upon the basis of the base salary fixed by law for the
office under Ch. 145, F. S. 1967. This was made clear in the earliest opinions of my
predecessor interpreting the 1969 amendments to Ch. 145-AGO's 069-136,
069-137, and 070-105--as well as in numerous informal opinions to various county
officials. In AGO 070-105 it was said that the statute meant that the subsection (2)(c)
official
shall continue to receive his base salary as prescribed by Ch. 145,
F. S. 1967, plus all the ex officio personal income from fees and
commissions earned by him, during the remainder of his term of
office-assuming, of course, that the base salary rate is not increased,
either by law or by a population increase, to an amount in excess of the
total compensation earned during the preceding fiscal year. .. .(Em-
phasis supplied.)
As noted in AGO 070-105, supra, if the statutory salary is increased so as to exceed
the total compensation formerly received under the subsection (2)(c) formula, the
official will be entitled to be compensated at the higher rate. However, the
subsection (2)(c) formula must be based on the 1967 statutory base salary under
what seems to me to be the clear and unambiguous language of the statute. The
legislature has met in several sessions since the 1969 and 1970 opinions were
rendered; and, this being so, I would be reluctant to recede from the opinions of my
predecessor in office, even if I were inclined to do so. On the contrary, I have
reaffirmed those opinions in AGO 072-185.

073-36-March 2, 1973
TAXATION
AD VALOREM TAX EXEMPTION-PERSONS WHO HAVE LOST A
LIMB NOT CONSIDERED TOTALLY
AND PERMANENTLY DISABLED
To: Clark Maxwell, Brevard County Tax Assessor, Titusville
Prepared by: Winifred L. Wentworth, Assistant Attorney General and David M.
Hudson, Legal Intern
QUESTIONS:
1. May a person who has lost a limb, but who is not considered
totally and permanently disabled, and the loss of the limb is not "service
connected," be granted a $500 ad valorem tax exemption under Art. VII,
3(b), State Const., and 196.202, F. S.?
2. If such an individual had been granted an exemption under
prior constitutional and statutory authority [Art. IX, 9, State Const.
1885, and 192.06(7), F. S. 1967], is it necessary that such previous
exemptions granted be recalled and disallowed?
3. For purposes of allowing an exemption under 196.202, F. S.,
may a tax assessor accept certification of total and permanent disability
from the Federal Social Security Administration under 196.012(10), F.
S., as amended by Ch. 72-367, Laws of Florida?
SUMMARY:
A person who has lost "a limb" but who is not certified as "totally
and permanently disabled" and the loss of the limb is not "service
connected" is not entitled to the tax exemption provided by Art. VII,
3(b), State Const., and 196.202, F. S., and applications for the

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073-36 ANNUAL REPORT OF THE ATTORNEY GENERAL

exemption provided therein by such unqualified persons should be
denied by the tax assessor. Prior constitutional and statutory provisions
which granted an exemption for persons who had lost "a limb" have
been repealed and constitutional and statutory provisions currently in
effect do not grant an exemption to such persons. Section 196.012(10), F.
S., as amended by Ch. 72-367, Laws of Florida, no longer permits the tax
assessor to accept certification from the Federal Social Security
Administration as to an individual's total and permanent disability for
purposes of allowing an exemption under 196.202, F. S.
Your first question is answered in the negative, the second in the affirmative,
and the third in the negative.
Both Art. VII, 3(b), State Const., and the statutory implementation thereof
contained in 196.202, F. S., require a person to be "totally and permanently"
disabled (or a widow or blind) in order to qualify for the tax exemption provided
thereby. Tax exemptions are regarded as express grants so that one claiming an
exemption must establish his right to it by clear evidence and law. [See] 31 Fla. Jur.
Taxation 144 (1960). Further, when exemptions are granted either by the
Constitution or by statute, they are to be strictly construed against the taxpayer
claiming the exemption and in favor of the taxing power. [See] 31 Fla. Jur. Taxation
142 (1960). Article VII, 3(b), State Const., and 196.202, F. S., both clearly
require that disability be both total and permanent before an exemption may be
granted; therefore, an individual who has lost a limb, but who is not certified to be
totally and permanently disabled [under 196.012(10), F. S. (1972 Supp.)] may not
be granted the exemption provided by the constitutional and statutory provisions.
Under constitutional and statutory provisions in effect prior to 1969 [Art. IX,
9, State Const. 1885, and 192.06(7), F. S. 1967], provision was made for granting
an exemption to individuals who had lost "a limb" even though not certified to be
totally and permanently disabled. Neither the constitutional nor statutory authority
for such exemptions is any longer in effect, having been superseded by Art. VII,
3(b), State Const., and 196.202, F. S., which eliminates the exemption for
individuals less than "totally and permanently disabled." See "Commentary" to
Art. VII, 3(b), State Const., in F. S. A. Thus, individuals who qualified and
annually claimed the former exemption, on the basis of having lost a limb, no longer
qualify on that basis; and if they should claim such an exemption by annual
application (196.011 and 196.021, F. S.) it should be denied.
Section 196.012(10), F. S. (1972 Supp.), defines "totally and permanently
disabled persons," and, as enacted by Ch. 71-133, Laws of Florida, provided:
(10) "Totally and permanently disabled persons" means those
persons who are currently certified by the Florida department of health
and rehabilitative services or the federal social security administration or
veterans' administration to be totally and permanently disabled.
(Emphasis supplied.)
Chapter 72-367, Laws of Florida, amended 196.012(10), F. S., to read:
(10) "Totally and permanently disabled persons" means those
persons who are currently certified by the Florida department of health
and rehabilitative services or two licensed physicians of this state or the
veterans' administration to be totally and permanently disabled.
(Emphasis supplied.)
The amendment of 196.012(10), F. S., provided by Ch. 72-367, Laws of Florida,
replaces the original section and that which is omitted is repealed, i.e., authority for
total and permanent disability to be certified by the federal Social Security
Administration. See 30 Fla. Jur. Statutes 135 (1960) and Vol. I, Sutherland
Statutory Construction 2017.

58

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-37

073-37-March 2, 1973
STATE CAREER SERVICE SYSTEM
JUDGES OF INDUSTRIAL CLAIMS
To: Tom Adams, Secretary of Commerce, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTIONS:
1. Are industrial claims judges exempt from the State Career
Service System under 110.051(2), F. S.?
2. If so, may the Division of Labor and Employment Oppor-
tunities prescribe attendance and leave rules for these positions as in the
case of other positions in the division that are exempt from the State
Career Service System?
SUMMARY:
Judges of industrial claims are exempt from the State Career Service
System; however, the Division of Labor and Employment Oppor-
tunities may prescribe attendance and leave rules for these positions as
in the case of other positions in the division that are exempt from the
State Career Service System.
My predecessor in office ruled in AGO 068-102 that the position of industrial
claims judge is exempt from the State Career Service System, Ch. 110, F. S. This
ruling was based on the language of 110.051(2)(d), id., exempting "judges,
referees, receivers" from the system, and on the fact that 440.44(4)(a), F. S. 1967,
requiring a merit system for personnel in the Workmen's Compensation Division,
expressly excluded members of the Florida Industrial Commission and judges of
industrial claims from this merit system.
After the transfer of the Florida Industrial Commission to the Division of
Labor and Employment Opportunities of the Department of Commerce by the
Governmental Reorganization Act (17 of Ch. 69-106, Laws of Florida),
440.44(4)(a), supra, requiring a special merit system for Workmen's Compensa-
tion Division personnel, was deleted by the revisers (163 of Ch. 71-377,
id.)-presumably because the State Career Service System prescribed by Ch. 110,
supra, would now be applicable to such personnel. However, no change was made
in 110.051(2) (d), supra. It is noteworthy, also, that in 1969 an additional exempt
classification was added to 110.051(2)-namely, "[a]ll officers and employees of
the judicial branch of state government; provided, however, that the department
shall set the salary of these positions, unless otherwise fixed by law." See Ch.
69-343, Laws of Florida. By expressly adding judicial officers-which would, of
course, include judges of all courts--to the list of exempt positions and retaining the
reference to "judges, referees, receivers," the legislature must have intended to
make clear its intention to include such quasi-judicial officers as judges of
industrial claims among the positions exempt from the State Career Service System.
Accordingly, your first question is answered in the affirmative.
A question somewhat similar to your second question was also posed to my
predecessor in 1968. It was answered in the negative in AGO 068-102, supra, on the
ground that Ch. 440 did not authorize the Florida Industrial Commission to
promulgate a body of "personnel rules and regulations applicable to judges of
industrial claims" and for the further reason that 440.44(4), supra, "explicitly
excludes said judges from any classificatory schedules, standards, rules or
regulations so promulgated by the commission for its employees." (Emphasis
supplied.) Implicit in this statement is the conclusion that judges of industrial

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073-37 ANNUAL REPORT OF THE ATTORNEY GENERAL

claims are employees; in fact, the opinion states that such positions "are probably
not offices," in answer to another question.
The ruling in AGO 068-102, supra, is no longer authoritative. As noted above,
440.44(4)(a), supra, has now been repealed by the legislature, so that any
limitations that had been imposed upon the Industrial Commission when it
administered its own special merit system under 440.44(4)(a) are no longer
applicable. More importantly, 1 of revised Art. V, State Const., now expressly
authorizes the legislature to grant quasi-judicial power to commissions or
administrative officers or bodies;* and the former constitutional provision
requiring all state and county officers to be either appointed by the governor or
elected by the people (Art. III, 27, State Const. 1885) was not carried forward into
the 1968 Constitution. (The 1968 Constitution had not been adopted at the time
AGO 068-102, supra, was written.) Thus, the fact that the industrial claims judges
are appointed by the division and not elected by the people or appointed by the
governor no longer requires a finding that the position is one of employment and
not an office.
And there can be little, if any, doubt that industrial claims judges are
quasi-judicial officers. It is true that 440.44, supra, still vests in the administrative
body charged with the duty of administering the Workmen's Compensation Act
(now the Division of Labor and Employment Opportunities, formerly the Florida
Industrial Commission) the authority to employ and fix the compensation of all
personnel in the division, including specifically judges of industrial claims. A
similar provision was in the act when it was first adopted, at a time when the
commission, with the approval of the governor, was authorized to "appoint and fix
the salaries of necessary deputy commissioners and [to] delegate to such deputy
commissioners such powers and authority as may be necessary to enable them to
effectively perform their duties." See 440.45, F. S. 1941. However, 440.45(1), F.
S., now authorizes the division, with the approval of the governor, to appoint as
many full-time judges of industrial claims "as may be necessary to effectually
perform the duties prescribed for them under this chapter and the rules and
regulations promulgated by the commission pursuant to this chapter" and
specifically prescribes the term of and the compensation to be paid to industrial
claims judges. See 440.45(2) and (3), as to their term and salary; and 440.19,
440.20, and 440.25, F. S., as to their duties. Thus, these positions have three of the
indicia usually present in a position that has the status of an "office," namely,
duties, tenure, and compensation prescribed by law. See State ex rel. Holloway v.
Sheats, 83 So. 508 (Fla. 1919). And the other requirement-the right to exercise
some portion of the sovereign power, conferred or defined by law and not by
contract-is present here also, as a compensation order entered by a judge of
industrial claims becomes final and is binding upon the parties unless review of
said order by the Industrial Relations Commission is sought within twenty days;
and the case is reviewed by the commission upon the record as certified to it by the
industrial judge and not de novo. See 440.25(4), id.
I understand that the State Personnel Board has adopted an administrative
policy authorizing state agencies to adopt attendance and leave rules for exempt
positions; and I see no reason why the judges of industrial claims may not have the
benefit of such rules and regulations as in the case of other positions in the division
that are exempt from the State Career Service System.
Accordingly, your second question is answered in the affirmative.

*It should be noted that Ch. 72-241, Laws of Florida, divorced the Industrial
Relations Commission-successor to the Full Commission of the old Florida
Industrial Commission-from the Division of Labor and Employment Oppor-
tunities, rendering the former a judicially qualified administrative appeals tribunal
pursuant to 1 of revised Art. V, State Const., and the latter an administrative unit of
the Department of Commerce.

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-38

073-38--March 2, 1973
CIVIL AND CRIMINAL COURT OF RECORD
JUDGES' ASSOCIATION
DISPOSITION OF FUNDS UPON DISSOLUTION
To: W. Rogers Turner, Presiding Judge, Division B, Orange County Criminal
Court of Record, Orlando
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May funds in the treasury of the Civil and Criminal Court of Record
Judges' Association of Florida derived from assessment of annual dues
as paid for by the respective county commissions of the state be legally
transferred to the treasury of the Circuit Judges' Conference of Florida
upon the dissolution of the Civil and Criminal Court of Record Judges'
Association of Florida, pursuant to the implementation of new Art. V of
the State Constitution?
SUMMARY:
Upon dissolution, the funds of the Civil and Criminal Court of
Record Judges' Association of Florida may be transferred to the treasury
of the Circuit Judges' Conference of Florida.
I assume from your inquiry that the association is an unincorporated
association composed of judicial officers and not an official agency of the state.
Thus, the funds collected by the association are not public funds within the
purview of 219.05(3), F. S., requiring the funds of a vacated county office to be
transferred to the incoming officer. Cf. AGO 072-184, holding that the financial
records of a nonprofit association of public officials are not within the purview of
the public records law, 119.01, F. S.
As to funds of an unincorporated association, the general rule is that such funds
should, upon its dissolution, be distributed pro rata among the members of the
association, providing the rights of third persons have not intervened and the
association does not partake of the nature of a charity. See 6 Am. Jur.2d Associations
and Clubs 23, p. 449. Thus, upon the dissolution of the association, the funds
remaining in its treasury could either be returned, pro rata, to the counties whose
funds were contributed thereto, or may be transferred to the treasury of the Circuit
Judges' Conference of Florida.

073-39-March 2, 1973
MINORS
EMPLOYMENT BY LIQUOR VENDORS
To: Robert M. Johnson, Representative, 74th District, Sarasota
Prepared by: Henry George White, Assistant Attorney General
QUESTION:
Does 562.13, F. S., preclude the employment of on-stage
entertainers, under the age of seventeen, in dinner theaters in which
patrons are served alcoholic beverages?
SUMMARY:
Section 562.13, F. S., prohibits the employment of professional

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073-40 ANNUAL REPORT OF THE ATTORNEY GENERAL

entertainers, who are under seventeen years of age, in dinner theaters in
which alcoholic beverages are served.
The answer to your question requires a brief examination of the statutes
concerning both the licensing of dinner theaters which serve alcoholic beverages
and the employment of minors in such establishments.
Chapter 28117, 1953, Laws of Florida, now appears, with subsequent
amendments, as 561.20(2), F. S. This statute permits the issuance of "special"
liquor licenses to restaurants which have at least twenty-five hundred square feet of
service area, are equipped to serve one hundred fifty persons full course dinners at
one time, and which derive at least 51 percent of their gross revenue from the sale of
food and nonalcoholic beverages. The dinner theaters to which you refer in your
letter are presumably the type which are issued "special" licenses under
561.20(2). Minors are legally permitted to be on the premises of establishments
which have been issued "special" licenses when their presence is for the purpose of
dining, dancing, or listening to music, but they may not lawfully be served or be
allowed to consume alcoholic beverages. Taylor v. State Beverage Department, 194
So.2d 321 (2 D.C.A. Fla., 1967). Accord: Attorney General Opinion 072-105.
Under the original beverage law, the employment of minors on licensed
premises was prohibited. However, in 1955, the legislature enacted 562.13, F. S.,
which reads in pertinent part as follows:
It is unlawful for any vendor licensed under the beverage law to employ
any person under twenty-one years of age. However, this section shall not
apply to professional entertainers between the ages of seventeen and
twenty-one years who are not in school .
No distinction is made concerning either the type of entertainment provided or the
location of entertainers (i.e., on or off stage) during a performance.
It will be noted that 561.20(2), supra, which authorizes "special" liquor
licenses for bona fide food service establishments, was already a part of the
beverage laws at the time that 562.13, supra, was enacted. The legislature is
presumed to have knowledge of existing law when it enacts a statute. Collins
Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla. 1964).
Accordingly, it must be assumed that had the legislature intended to make a special
exception for the employment of professional entertainers under the age of
seventeen in establishments holding "special" licenses pursuant to 561.20(2),
supra, such an intention would have been clearly expressed in 562.13, supra. The
exception in 562.13, supra, with respect to the employment of professional
entertainers is clearly limited to minors between seventeen and twenty-one years of
age. In AGO 059-207 it was held that the provisions of 562.13, supra, should not,
by implication, be given an interpretation which is broader than that warranted by
the language of the beverage laws. Thus, while minors under seventeen years of age
may frequent establishments holding "special" liquor licenses as long as they are
not served alcoholic beverages, such establishments may not employ entertainers
who are less than seventeen years of age.

073-40-March 5, 1973
COUNTIES
OLDER AMERICANS ACT-CONTRIBUTION OF COUNTY FUNDS
TO NONPROFIT CORPORATION
To: Emmett S. Roberts, Secretary, Department of Health and Rehabilitative
Services, Tallahassee
Prepared by: Bjarne B. Andersen, Jr., Assistant Attorney General

62

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-40

QUESTIONS:
1. Has a county the power under its home rule authority to expend
or otherwise contribute public funds of the county to a nonprofit
corporation which provides local services to the aged and which is
qualified under the Older Americans Act to be a recipient of federal,
state, and local matching funds?
2. Would such an expenditure of public funds violate Art. VII, 10,
State Const., which prohibits a county from pledging its credit or taxing
power in behalf of a nonprofit corporation or association?
SUMMARY:
A county, under its home rule powers pursuant to a duly enacted
ordinance, maylawfully contribute county funds to a qualified nonprofit
corporation providing services pursuant to the Older Americans Act,
when such services are rendered to accomplish a specified county
purpose in behalf of the aged citizens of the county.
AS TO QUESTION 1:
Regarding the responsibility of the governing authority of a county to
contribute county funds to support activities, programs, or services provided under
the Older Americans Act of 1965 (42 U.S.C.A., 3001, et seq.), a review of the state's
general law on this subject (see 409.360 and 409.362, F. S.), merely indicates a
legislative intent that elderly citizens of this state shall be assisted and protected to
the fullest extent possible. These federal and state laws do not indicate any
responsibility on the part of the Department of Health and Rehabilitative Services,
or the Bureau of Aging under the. Division of Family Services, to require the
expenditure of county funds for this purpose.
The mere authority to act does not necessarily carry with it the corresponding
authority to expend public funds. A board of county commissioners expending
county funds may be likened in many respects to the legislature in regard to the
expenditure of state funds; and county commissioners are not authorized to expend
county funds except for the purposes and in the manner expressly provided by law,
notwithstanding that a county purpose may have been expressed or implied by
various provisions of a statute. This legislative declaration or determination is
merely persuasive or a guideline upon which the governing authority of a county is
afforded the opportunity to exercise its discretionary responsibility regarding the
appropriation of county funds. Cf. Prescott v. Board of Public Instruction, 32 So.2d
731 (Fla. 1947); City of Lynn Haven v. Bay County, 47 So.2d 894 (Fla. 1950). See 8
Fla. Jur. Counties 107, 111, and 112.
In the absence of some type of specific mandate, the general authority given a
county to provide various programs, facilities, and services for its citizens (i.e.,
health, welfare, recreational and cultural programs and facilities) which may be
contemplated by the Older Americans Act, supra [see 125.01, F. S., and 45 Code
of Federal Regulations (CFR), Ch. XI, 901, et seq.], merely secures to the
governing authority of a county the power of deciding how, when, and for what
purpose the public funds of the county may be applied. This authority does not
preclude the constitutional requirement that funds may be withdrawn pursuant to
law. Cf. 25 Fla. Jur. Public Funds 17; Art. VII, 1(c), State Const.; and Art. XIII,
3, State Const. 1885.
Considering the constitutional and statutory "home rule" authority which
counties now possess, a county ordinance takes the place of a special legislative act
in regard to matters of strictly local concern. Such an ordinance now is considered
to constitute sufficient authority for the expenditure of county funds. See AGO
070-134.
In providing funds for various local programs, facilities, and services for the
aged, there is no (question that the county itself may directly provide these services

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073-41 ANNUAL REPORT OF THE ATTORNEY GENERAL

to accomplish the county purpose declared in the duly enacted ordinance.
However, the proposed method of providing these services through a nonprofit
corporation or association is questionable due to the fact that county funds are
being expended in part to assist a nongovernmental entity which may violate the
provisions of Art. VII, 10, State Const.
AS TO QUESTION 2:
Article VII, 10, State Const., summarily provides, in part, that no county
shall become a joint owner with, or give, lend, or use its taxing power, or pledge its
credit to aid any corporation or association. In one sense, the expenditure of county
moneys contributed to a senior citizens' group may well be considered an aid to
such an organization.
However, if the nonprofit corporation is a quasi-public organization, that is, if
its programs, facilities, and services are merely operated and managed for the
convenience of the public which it serves, it will be rendering a public service,
subject always to the ultimate control of the county commissioners in regard to such
a contribution and the county purpose to be attained thereby. Cf. O'Neill v. Burns,
198 So.2d 1 (Fla. 1967) at pp. 4-10. The fact that the county, under its home rule
ordinance, proposes to utilize the services of a voluntary, nonprofit, quasi-public
organization to handle the operating details of a facility, program, or service for the
elderly citizens of the county does not destroy the public nature and objectives of
the expenditure made for that specific county purpose. Cf. Burton v. Dade County,
166 So.2d 445 (Fla. 1964), approving expenditure of county funds for a county
planetarium operated by a nonprofit quasi-public corporation; Sunny Isles Fishing
Pier v. Dade County, 79 So.2d 667 (Fla. 1955), approving a county lease for
recreational purposes. Accord: State v. City of Miami, 72 So.2d 655 (Fla. 1954),
municipal warehouse lease to a nonprofit organization; Raney v. City of Lakeland,
88 So.2d 148 (Fla. 1956), leasing for library purposes; Hanna v. Sunrise Recreation,
94 So.2d 597 (Fla. 1957), state leasehold for park purposes; State v. City of Tampa,
146 So.2d 100 (Fla. 1962), construction of a convention center on leased property.
In conclusion, based upon the previously cited authorities, I am of the opinion
that the governing authority of a county, under its home rule powers, may
contribute county funds to a nonprofit corporation providing services in
compliance with the provisions of the Older Americans Act by a duly enacted
ordinance which specifies the particular county purpose to be served and the
manner in which payment and receipt of such services shall be made. Cf. AGO's
056-151, 070-134, 071-150, and 071-169.

073-41-March 5, 1973
MOTOR VEHICLES
DETENTION IN JAIL NOT PREREQUISITE TO VALID CHARGE
OF DRIVING UNDER INFLUENCE OF ALCOHOL
To: Walter V. Dantzler, Chief of Police, St. Cloud
Prepared by: Wallace E. Allbritton, Assistant Attorney General
QUESTION:
When a person has been arrested for driving while intoxicated, is it
necessary that such person be placed in jail for any specified period of
time in order to have a valid charge?
SUMMARY:
When a person has been arrested for driving while intoxicated,
neither 316.028, F. S., 1971, nor any other statute requires that such

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-42

person be placed in jail for any specified length of time as a prerequisite
to a valid charge or prosecution.
The offense of driving a motor vehicle when intoxicated to the extent that
normal faculties are impaired is denounced by 316.028, F. S. 1971. This statute in
its entirety reads as follows:
316.028 Driving while under the influence of alcoholic bever-
ages, narcotic drugs, barbiturates or other stimulants.-
(1) It is unlawful and punishable as provided in subsection (2) for
any person who is under the influence of alcoholic beverages, marijuana
or narcotic drugs, as defined in chapter 398, model glue, or barbiturates,
central nervous system stimulants, hallucinogenic drugs, or any other
drugs to which the drug abuse laws of the United States apply, as defined
in chapter 404, when affected to the extent that his normal faculties are
impaired, to drive or be in the actual physical control of any vehicle
within this state.
(2) Any person who is convicted of a violation of this section shall
be punished:
(a) For first conviction thereof, by imprisonment for not more than
6 months or by a fine of not less than $25 or more than $500, or both such
fine and imprisonment.
(b) For a second conviction within a period of three years from the
date of a prior conviction for violation of this section, by imprisonment
for not less than 10 days nor more than 6 months and, in the discretion of
the court, a fine of not more than $500.
(c) For a third or subsequent conviction within a period of five
years from the date of conviction of the first of three or more convictions
for violations of this section, by imprisonment for not less than 30 days
nor more than 12 months and, in the discretion of the court, a fine of not
more than $500.
The above statute does not require that a person be placed in jail for any period of
time in order to be properly charged with its violation. I have found no other statute
requiring such action be taken as a prerequisite to a valid charge under 316.028.
Your letter indicates that an authorized bondsman had posted bond and a
responsible adult was present to take custody of the accused. This being true, you
have no right to detain the accused in jail for any length of time. A person accused of
a noncapital crime has an absolute right to bail prior to trial. Varholy v. Sweat, 15
So.2d 267 (Fla. 1943); Matera v. Buchanan, 192 So.2d 18 (3 D.C.A. Fla., 1966);
Hoskins v. State, 217 So.2d 852 (1 D.C.A. Fla., 1969); and Art. I, 14, State Const.
Accordingly, your question is answered in the negative.

073-42-March 5, 1973
CAPITOL CENTER PLANNING DISTRICT
STATE AUTHORITY TO CONTRACT FOR COMPETITION
TO OBTAIN URBAN PLANNING SERVICES
To: Chester F. Blakemore, Executive Director, Department of General Services,
Tallahassee
Prepared by: Arthur C. Canaday, Assistant Attorney General
QUESTIONS:
Concerning participation by the state in a competition to obtain

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073-42 ANNUAL REPORT OF THE ATTORNEY GENERAL

urban planning services for the Capitol Center Planning District:
1. May the state participate in a competition which is restricted to
the classification of participants permitted by the American Institute of
Architects Code?
2. May the governor and cabinet delegate to a jury the power to
select a planner or plan for the district?
3. May the governor and cabinet employ the services of a
"Professional Advisor" as required by the AIA Code?
4. What comment may generally be made on the power of the
Department of General Services to contract with an adviser and to
conduct such a competition and expend funds for these purposes?
SUMMARY:
Section 272.121, F. S., gives the state authority to contract for a
contest to obtain planning services or to hire such other professionals as
they determine would assist in their statutory duties, assuming the
legislature has appropriated money for this purpose.
Our earlier information had been that the American Institute of Architects
Code for architectural competition was rigid in its requirement that the winning
plan from such a competition be accepted by the State of Florida. This raised legal
problems as to whether state offices could so delegate their decision-making
responsibilities. Your letter of February 21, 1973, indicates that the rules for "Class
B" competitions are not quite this rigid although they certainly envision the
winning plan as being adopted by the state; certainly, at least, they would not allow
the state to utilize one of the losing plans in the Capitol Center Project. As a
technical legal matter, however, the fact is that under the AIA Code the state would
not be legally bound to use the winning plan but only to award a prize and this fact
would obviate problems stemming from a delegation of statutory decision-making
authority. In short, the state would be technically using the competition or contest
method to commission an agent to present his proposed plan to be accepted or
rejected by the cabinet. Under these circumstances I see no legal prohibition
against a contest.
It would seem clear, however, that the Department of General Services might
be embarrassed by this method if the winning design were not acceptable to the
head of the department. Certainly, serious policy questions would be presented
unless it were agreed in advance that the winner would be willing to sit down and
work out modifications to his design which would be acceptable to the department,
if that were necessary. To have only the extreme alternatives of rejecting or
approving the entire plan would not seem to be in the best interest of the state. The
AIA Code is not entirely clear on this point.
Section 272.121(3), F. S., gives the Division of Building Construction and
Maintenance, Department of General Services, clear authority to develop a
comprehensive plan for the Capitol Center and authorizes it to "request the
cooperation of those state and private architects, engineers and interior designers
determined by the division to possess expertise or information helpful to the
development of a capitol plan ." Under this broad authority, the division
can decide which professional firms and services in the field shall assist in
developing the plan. These professional services could include the analysis of
numerous plans in order to recommend the best to the state. Whether these services
would come from architects, engineers, "professional advisers" or professional
planners, or a combination of all would be up to the division based upon its
considered opinion as to the professional qualifications and contributions of each.
Obviously, it would appear from the provisions of the code, the AIA feels that its
members are fully qualified to undertake such planning work. As indicated above,
the broad provisions of the statute would authorize employment of a "professional
adviser" if the division determined it to be an expeditious way of accomplishing its
statutory responsibilities.

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It should be finally pointed out that, at this time, the legal authority of the
department to actually contract for either a planner or a contest is limited to the
precise amount of presently available funds, if any, which have been appropriated
for this purpose.

073-43-March 5, 1973
AUTOMOBILES
LAW ENFORCEMENT OFFICER AUTHORITY TO IMPOUND
AND INVENTORY AUTOMOBILE UPON ARREST OF
OPERATOR-ADMISSIBILITY OF EVIDENCE OF CRIME
DISCOVERED UPON INVENTORY

ATTORNEY GENERAL OPINIONS
LEGAL EFFECT
To: R. W. Weitzenfeld, Manatee County Sheriff, Bradenton
Prepared by: A. S. Johnston, Assistant Attorney General
QUESTIONS:
1. Does a law enforcement officer upon arresting the driver of an
automobile have the authority to cause the towing and storage of a
defendant's vehicle for safekeeping when there is no other alternative
but to tow the vehicle and place it in safekeeping or leave it beside the
road, subject to larceny and vandalism, due to the fact that the driver
must be booked into jail?
2. Prior to the pickup and storage of the vehicle, may the officer
inventory the vehicle for the protection of the owner, for the protection
of the vehicle's operator, for the protection of the tow truck operator, as
well as the protection of the arresting officer?
3. When it is the practice of the law enforcement agency to always
inventory each and every vehicle towed in because of being unable to
make other disposition of the vehicle and an inventory is conducted and
contraband discovered, may the contraband legally be used against the
defendant in a court of law?
4. What effect does the attorney general's opinion have at law?
SUMMARY:
The impounding of vehicles after the arrest of the operator may be
required to protect the property of the suspect. The vehicle may be
seized if there is probable cause to believe that it is being used in
violation of certain specific statutes.
When the vehicle is impounded to protect the property, an
inventory of the vehicle may be conducted to complete this protection.
Additionally, an active search for contraband may be conducted when it
is reasonably suspected.
Contraband found in the course of an inventory is admissible if the
impoundment and inventory were necessary, and there is no evidence
indicating that an intent to uncover incriminating evidence was the
motivation for the inventory. When a search is conducted reasonably
incident to an arrest or based upon probable cause to suspect
contraband, any contraband found would be likewise admissible.
Attorney general opinions, while not binding on the courts, are

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073-43 ANNUAL REPORT OF THE ATTORNEY GENERAL

entitled to weight in construing Florida statutes and are guides for state
executive and administrative officers in performing their official duties
until superseded by judicial decisions.
AS TO QUESTION 1:
Although specific authority to have an automobile towed away has not been
expressly provided by statute in Florida, such a practice has been justified, based
on the duty of law enforcement officers to protect the property of an arrested
suspect where reasonably required by the circumstances. Godbee v. State, 224
So.2d 441 (2 D.C.A. Fla., 1969).
Such authority is further indicated by the decisions of federal courts and the
courts of other states.
Express recognition of the authority of officers to impound an automobile after
arrest is clearly stated in Cotton v. United States, 371 F.2d 385 (9th Cir. 1967). In
examining the propriety of police action in impounding the suspect's automobile,
the court stated at 392:
Cotton having been validly arrested and taken to the police station, the
officer would have been derelict in his duty if he had left the car
unattended in a dark alley in the middle of the night. The police have as
much a duty to protect the property of a suspect as they have to protect the
property of the rest of us, and that is what they did in this case by towing
the car to the police impound. They also had a duty to keep a record of the
property that they had impounded so that it could be returned to the
suspect or its owner in due course.
The necessity of having the car towed away would depend upon circumstances
such as those you mention, i.e., likelihood of vandalism or larceny which an
abandoned car might invite.
Additional authority for seizure of an automobile is provided when there is
probable cause to believe that the vehicle is being used in violation of certain state
laws. Section 562.35, F. S., provides for the seizure and forfeiture of vehicles used
in violation of the state beverage laws; 398.24, F. S. 1971, applies to violation of
the Uniform Narcotic Drug Law of Florida. Section 404.09, F. S. 1971, authorizes
seizure of vehicles being used in violation of Florida's Drug Abuse Law. Section
933.19, F. S., allows search and seizure of a vehicle used in transporting illegal
liquors, drugs, or other contraband. All of these sections are governed by the test of
probable cause rather than the duty of law enforcement officers to take reasonable
steps to protect the property of arrested suspects.
AS TO QUESTION 2:
Authority to inventory the vehicle follows upon the authority to have the
vehicle removed. Godbee, supra. Illustrations of the reasonable authority to
conduct an inventory are provided in the excerpt from Cotton v. United States,
quoted above in the answer to question 1, and in Heffley v. State, 423 P.2d 666,668
(Nev. 1967):
The police officer, when there is just cause, has a duty not only to
impound a car from a public highway for its own protection, but also to
inventory the contents so that they may be safeguarded for the owner.
Such practice is deemed necessary to defeat dishonest claims of theft of
the car's contents and to protect the temporary storage bailee against false
charges.
As with the authority to impound a vehicle, the authority derives from the duty
to protect and safeguard the property.
When circumstances do not require that the vehicle be impounded (and
therefore inventoried), 901.21, F. S., might authorize a search of the vehicle
incident to a lawful arrest. The Florida Supreme Court has held that 901.21 allows

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-43

an incidental search of a vehicle which reasonably ensues after a legal arrest. State
v. Gustafson, 258 So.2d 1 (Fla. 1972).
AS TO QUESTION 3:
The individual is protected by the fourth amendment from unreasonable
searches. Thus, when a search is too remote in time and place to have been made as
incidental to the arrest, then it will be found to have violated the test of
reasonableness under the fourth amendment. Preston v. United States, 376 U.S. 364
(1964). But see Chambers v. Maroney, 399 U.S. 42 (1970), holding fruits of a
noncontemporaneous search admissible. See also Ackles v. State, 270 So.2d 39 (4
D.C.A. Fla., 1972), for a recent statement of the law in Florida with regard to
"probable cause" and search as "incident" to a lawful arrest.
A search, in the constitutional sense, however, implies some exploratory
investigation. See Fagundes v. United States, 340 F.2d 673 (1st Cir. 1965). A proper
inventory will not include this element of exploratory investigation. Thus, when
there is a lawful arrest and when circumstances require an impoundment and
subsequent inventory, any contraband found in the course of a routine inventory
would be admissible as evidence. An exposition of the rationale behind such
admissibility is provided by the Washington Supreme Court in State v. Montague,
438 P.2d 571 (Wash. 1968) at 574:
When, however, the facts indicate a lawful arrest, followed by an
inventory to or following the impoundment of the car, and there is found
to be reasonable and proper justification for such impoundment, and
where the search is not made as a general exploratory search for the
purpose of finding evidence of crime but is made for the justifiable
purpose of finding, listing, and securing from loss, during the arrested
person's detention, property belonging to him, then we have no hesitancy
in declaring such inventory reasonable and lawful, and evidence of crime
will not be suppressed.
Case authority in Florida indicates the apparent view of courts in this state that
an inventory is not a search in the constitutional sense of the word, and, consistent
with the rationale of the language in the Montague opinion quoted above, Florida
courts will admit evidence of crime obtained in a proper inventory search. State v.
Galloway, 266 So.2d 53 (3 D.C.A. Fla., 1972); Christian v. State, 265 So.2d 83 (3
D.C.A. Fla., 1972); State v. Ruggles, 245 So.2d 692 (3 D.C.A. Fla., 1971); Godbee v.
State, 224 So.2d 441 (2 D.C.A. Fla., 1969); Knight v. State, 212 So.2d 900 (3 D.C.A.
Fla., 1968); and State v. Holmes, 256 So.2d 32 (2 D.C.A. Fla., 1972) (distinguishing
an inventory search).
It should be noted, however, that a significant and potentially fatal distinction
exists between an inventory search and an exploratory search. See St. Clair v. State,
232 A.2d 565 (Md. App. 1967); Godbee, supra. See Urquhart v. State, 261 So.2d 535
(2 D.C.A. Fla., 1971) for an excellent discussion of the jurisprudential aspects of the
inventory search theory. There, in the opinion on rehearing, Judge Mann, District
Judge, issued an appropriate warning to law enforcement officials:
[A]s an abstract matter of law, what is found. should not have any
bearing on the determination of the question of whether the police had a
right to impound the car and search it. That question is not yet fully
explored, and before its clarification is complete some law enforcement
officers may be embarrassed if they view the inventory search as a new
excuse for not getting a search warrant. [Cf. Courington v. State, 74 So.2d
652 (Fla. 1954).]
Thus, as indicated by the opinions above, the admissibility of any evidence
found is destroyed if the impoundment was unjustified or the search was intended
to uncover incriminating evidence. Additionally, when there is reason to suspect
contraband, a search may be justified by 933.19, F. S., and anything found would

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be admissible based upon the reasonability of the search without regard to the
necessity to impound.
AS TO QUESTION 4:
Your question regarding the effect of attorney general opinions is discussed at
3 Fla. Jur. Attorney General 7:
Although the opinions of the Attorney General have in no sense the effect
of judicial utterances, in actual practice they are usually followed. His
opinion, while not binding on the courts, is entitled to weight in
construing the Florida statutes. And his official opinions as to the validity
or invalidity of a statute are the guides for state executive and
administrative officers in performing their official duties until
superseded by judicial decisions.

073-44-March 5, 1973
STATE LANDS
TRANSFER OF TITLE FROM ST. AUGUSTINE HISTORICAL
RESTORATION AND PRESERVATION COMMISSION
TO BOARD OF TRUSTEES OF THE INTERNAL
IMPROVEMENT TRUST FUND-JUDICIAL
PROCEEDINGS APPROPRIATE
To: Richard Stone, Secretary of State, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Is the property known as "Government House" in St. Augustine
excluded from the provisions of 253.03(1), F. S., and 28, Ch. 72-409,
Laws of Florida, requiring transfer of title to state lands to the Board of
Trustees of the Internal Improvement Trust Fund?
SUMMARY:
The question of whether "Government House" in St. Augustine is
excluded from the provisions of 253.03(1), F. S., requiring conveyance
of all state lands to the Board of Trustees of the Internal Improvement
Trust Fund, is one of mixed law and fact that should be determined in
appropriate judicial proceedings. Pending such a determination, the
conveyance should not be made without the assurance of the Secretary
of the Interior that he will not exercise any reversionary right, if any,
activated by such a transfer.
Section 253.03(1), F. S., vests in the Board of Trustees of the Internal
Improvement Trust Fund all lands "owned by, or which may hereafter inure to, the
state or any of its agencies, departments, boards or commissions" with some
exceptions referred to hereafter; and 253.03(6), id., provides that "any board,
commission, department or agency holding title to any state lands used for public
purpose shall execute all instruments necessary to transfer such title to the said
board of trustees ." The exceptions referred to above include lands held by
the state that must be devoted to a particular purpose, such as port authorities,
navigation and drainage districts, and military reservations. The exception which
may be applicable here refers to lands the conveyance of which "to the board of
trustees of the internal improvement fund under this act would work a reversion
from any other cause ."
Quite obviously, one of the purposes of the legislature in excepting lands

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-44

subject to a reversionary clause that would be activated upon the conveyance
thereof to the Board of Trustees of the Internal Improvement Trust Fund was to
avoid the loss of such lands to the holder of the reversionary interest. Here, the
conveyance to the board of trustees would not work an immediate and automatic
reversion, as the deed provides that, upon breach of any covenant, the property
shall revert to the United States of America "at its option." However, there seems to
be little if any doubt that the federal government would have the right to claim its
reversionary interest, should the property be taken out from under the management
and control of the St. Augustine Historical Restoration and Preservation
Commission. The deed of conveyance provides that
for and in consideration of the perpetual use and maintenance of
the property hereinafter described, by STATE OF FLORIDA, acting by
and through Saint Augustine Historical Restoration and Preservation
Commission, to be now and hereinafter known as the party of the second
part, as and for an historic monument, and for no other pur-
pose has quitclaimed unto the party of the
second part, subject to the reservations, exceptions, restrictions,
conditions and covenants hereinafter expressed .
The deed also contains a covenant that the party of the second part (the state acting
by and through the historical commission) will not sell, lease, assign, or otherwise
dispose of, any of the property "except to another local governmental agency that
the Secretary of the Interior is satisfied can assure the continued use and
maintenance of the property as and for an historic monument .. ." (Emphasis
supplied.)
As the Board of Trustees of the Internal Improvement Trust Fund is the state
agency charged by law with the responsibility of holding the title to most
state-owned lands, it may be that the transfer of the naked legal title to that board,
together with a simultaneous agreement on the part of the board to vest the "use and
maintenance" of the property in the St. Augustine Historical Restoration and
Preservation Commission, would not be deemed to be a breach of the covenant
referred to above. In any event, the question of whether the particular property in
question is within the exception to 253.03(1), quoted above, is a mixed one of law
and fact which should more appropriately be determined in a judicial proceeding in
which the contentions of all interested parties may be considered and determined.
It is suggested that, in the absence of or pending such a judicial decision, the
transfer of the title to the Board of Trustees of the Internal Improvement Trust
Fund and the relinquishment of management by the St. Augustine Historical
Commission should not be made without some assurance from the Secretary of the
Interior that he will not exercise the reversionary right, if any, activated by such a
transfer.
In the meantime, in view of the fact that, under the express terms of the deed of
conveyance from the United States to the State of Florida, the property in question
must be maintained and used for an historic monument by the State of Florida
acting by and through the St. Augustine Historical Commission, and that there is a
substantial question of law and fact that must be resolved before a conveyance
under 253.03, supra, to the Trustees of the Internal Improvement Trust Fund can
safely be made (other than the simultaneous conveyance and agreements referred to
above), it would seem that the Department of State and its agency, the St. Augustine
Historical Commission, are in compliance with the requirements of 253.03, F. S.,
insofar as is conceivably possible under the circumstances; and, in my opinion, the
funds appropriated to the use of the commission could appropriately be released to
it by the Department of Administration.

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073-45--March 6, 1973
CRIMINAL PROCEDURE
APPLICABILITY OF RULE 3.111(b)(1) TO PROSECUTIONS
IN MUNICIPAL COURTS
To: George W. Baldwin, Municipal Judge, North Palm Beach
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTION:
Is Criminal Procedure Rule 3.111(b)(l) applicable to prosecutions
in municipal courts?
SUMMARY:
Criminal Procedure Rule 3.111(b)(l) does not apply to prosecutions
in municipal courts. However, said rule comports with the rationale of
the decision of the United States Supreme Court in Argersinger v.
Hamlin, 407 U.S. 25 (1972), which rationale is applicable to prosecutions
in municipal courts. Therefore, I suggest that municipal courts operate
in substantial accord with the postulates of said rule.
Criminal Procedure Rule 3.111(b)(1) provides that:
RULE 3.111 PROVIDING COUNSEL TO INDIGENTS.
0 0

(b) Cases Applicable:
(1) Counsel shall be provided to indigent persons in all
prosecutions for offenses punishable by imprisonment (or by incarcera-
tion in a juvenile corrections institution) including appeals from the
conviction thereof. Counsel does not have to be provided to an indigent
person in a prosecution for a misdemeanor or violation of a municipal
ordinance if the judge, prior to trial, files in the cause a statement in
writing that the defendant will not be imprisoned in the event he is
convicted. (Emphasis supplied.)
Neither said rule nor any other Criminal Procedure Rule applies to prosecutions in
municipal courts because Rule 3.010 limits the application of the Criminal
Procedure Rules to "criminal proceedings in state courts." (Emphasis supplied.)
I am aware that said Rule 3.111(b)(l) contains a provision relating to a
prosecution for "violation of a municipal ordinance." This provision applies to
prosecutions in the county court (a "state court") for violations of municipal
ordinances pursuant to the authorization of revised Art. V, 20(c)(4), State Const.
Despite its inapplicability to municipal courts, said rule is in accord with the
rationale of the United States Supreme Court's opinion in Argersinger v. Hamlin,
407 U.S. 25 (1972), and I think that that rationale is just as applicable to a
prosecution in a municipal court as it is to a prosecution in a county court.
Therefore, I suggest that it would be well for municipal courts to operate in
substantial accord with the postulates of said Rule 3.111(b)(l), CrPR.

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073-46-March 6, 1973
DUAL OFFICEHOLDING-DUAL COMPENSATION
EMPLOYMENT OF PUBLIC DEFENDER AS "ADJUNCT
ASSISTANT PROFESSOR" IN STATE LAW SCHOOL
To: Richard W. Ervin III, Public Defender, Tallahassee
Prepared by: Richard Bennett, Assistant Attorney General
QUESTION:
May a public defender accept employment as an "adjunct assistant
professor" whose responsibilities would be to teach an evening law
course at a state university after the normal hours of his duties as public
defender have terminated?
SUMMARY:
A public defender may teach an evening law course at a state
university after the normal hours of his duties as public defender have
terminated. However, 216.262(3), F. S., as amended by Ch. 71-354,
Laws of Florida, prohibits the receipt of compensation from state funds
regardless of any additional duties performed in any capacity or position
by a public defender.
Article II, 5, State Const., specifically prohibits dual officeholding, but in that
regard the prohibition attaches only to concurrent services in state, county, or
municipal offices. Attorney General Opinion 072-101. In the case of State v.
Hocker, 22 So. 721 (Fla. 1897), the court adopted the following comprehensive
definition which has been frequently cited by Florida courts over the years:
The term "office" implies a delegation of a portion of the sovereign
power to, and possession of it by, the person filling the office; a public
office being an agency for the state, and the person whose duty it is to
perform the agency being a public officer. The term embraces the idea of
tenure, duration, and duties, and has respect to a public trust to be
exercised in behalf of government, and not to a merely transient,
occasional, or incidental employment. A person in the service of the
government, who derives his position from a duly and legally authorized
election or appointment, whose duties are continuous in their nature, and
defined by rules prescribed by government, and not by contract,
consisting of the exercise of important public powers, trusts, or duties, as
a part of the regular administration of the government, the place and the
duties remaining though the incumbent dies or is changed, is a public
officer .
It is clear that the position of "adjunct assistant professor" in the state
university system is not an "office" as contemplated by Art. II, 5, State Const.
Consequently, the dual office prohibition does not apply in this instance.
At common law, public policy prohibited a public employee from holding
another position in the public service whose duties were incompatible with those of
a position already held by him. As noted in AGO 070-46 this rule is still in full force
and effect in this state. However, I find no incompatibility between the duties of a
public defender and an "adjunct assistant professor" in a state educational
institution.
The legislature has enacted 27.51(3), F. S., which provides:
All public defenders elected to office on or after November 1, 1972,
shall be elected on a full-time basis and shall be prohibited from the
private practice of law while holding office. .

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My predecessor in office, in a letter dated November 5, 1969, ruled that a public
defender who taught a night course in a junior college was not "engaged in the
practice of law." Certainly, then, teaching an evening course at a college of law is
not engaging in the "private practice of law" as prohibited by 27.51(3), supra.
Attorney General Opinion 071-322 concerned itself with whether or not a
public defender could also be employed outside his normal working hours as an
instructor in a private law school. In permitting the employment, I also stated that it
was not my intention in AGO 071-162
to hold in that opinion that a full-time state officer or employee
whose salary is fixed or limited by law may not engage in private
employment outside his normal working hours and receive compensa-
tion therefore, so long as such employment does not violate the Standards
of Conduct Law, 112.313(6), F. S., prohibiting a public officer or
employee from accepting other employment that might impair his
independence or judgment in the performance of his official duties, or
the common-law rule prohibiting the acceptance of other employment
whose duties are incompatible with his official duties. And it is obvious
that there is no conflict of interest nor incompatibility between the duties,
respectively, of a public defender and a teacher of a law course.
(Emphasis supplied.)
In State v. Llopis, 257 So.2d 17 (Fla. 1971), the Florida Supreme Court invalidated
112.313(6), F. S., as being unconstitutionally vague.
In the case before me for consideration, the employment sought is with a state
university. I presume that the compensation of an "adjunct assistant professor"
would be paid from state funds. If this is indeed the fact, 216.262(3), as amended
by Ch. 71-354, Laws of Florida, must be considered. The subsection reads, in
pertinent part, as follows:
Unless specifically authorized by law, an individual filling or
performing the duties of a position the salary of which has been
specifically fixed or limited by law shall not receive compensation from
more than one appropriation, nor in excess of the amount so fixed or
limited by law, regardless of any additional duties performed by him in
any capacity or position.
"Position" as defined in 216.011(1)(s), F. S., as amended by Ch. 71-354, "means
the work, consisting of duties and responsibilities, assigned to be performed by an
officer or employee."
The salaries of public defenders are fixed in 27.5301(1)(b), F. S. And the
language quoted above indicates that if an individual's salary has been fixed by
law, he may not receive compensation from more than one appropriation.
"Appropriation" as defined in 216.011(1)(j) F. S., "means a legal authorization to
make expenditures for specific purposes, within the amounts authorized in the
appropriations act."
I have found no specific authorization by the legislature that would permit a
public defender to receive compensation from another appropriation for the
teaching of a law course in a state university after the normal hours of his duties as a
public defender have terminated. In the absence of such an authorization by law,
216.262(3), supra, would prohibit receiving compensation from more than one
appropriation regardless of any additional duties performed in "any capacity or
position."
For the reasons stated above, there would be no statutory or constitutional
provision that would prohibit you from engaging in such outside activity.
However, 216.262(3), supra, would prohibit you from receiving compensation
from state funds.

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073-47-March 7, 1973
DUAL OFFICEHOLDING
TRUSTEE OF JUNIOR COLLEGE DISTRICT SERVING AS MEMBER
OF PARKS, PLANNING, AND ZONING COMMISSION
To: Calvin B. Brown, Vero Beach
Prepared by: Richard Bennett, Assistant Attorney General
QUESTION:
May a trustee of a junior college district also serve as a member of a
parks, planning, and zoning commission?
SUMMARY:
A trustee of a junior college district may also serve as a member of a
parks, planning, and zoning commission, a statutory body having only
advisory powers.
In a letter dated August 4, 1970, addressed to the general counsel for the State
Board of Education, my predecessor in office ruled that a junior college trustee was
not a state, municipal, or county officer within the meaning of 5 of Art. II of the
1968 State Constitution. It was noted therein that it has long been settled that
officers of a special district or authority which has been created by statute to
perform a special state or county function are not state, municipal, or county
officers within the meaning of the Constitution. Consequently, the dual
officeholding prohibition was held not to apply. I find those rulings to be sound
and adhere to them in the case before me for consideration. Accord: Attorney
General Opinions 069-49 and 071-324.
In Advisory Opinion to the Governor, 1 So.2d 636 (Fla. 1941), the Supreme
Court held a member of the State Planning Board to be a state officer within the
dual officeholding prohibition even though members of the board were authorized
to act only in an advisory capacity. However, the board was found to have been
authorized to expend public funds in the exercise of their statutory duties. And the
members served a fixed term of office after their appointment to the board by the
governor. As noted in AGO 071-43 the court ultimately found "the powers and
attributes of sovereignty" to have been delegated to the board by statute. In the
above-mentioned opinion I held that members of a state park advisory council were
not state officers within the prohibition of Art. II, 5, State Const., because there
was no authority granted to the council to expend public funds or to exercise the
"sovereign power" of the state.
Article II, 5, State Const., provides in part:
No person shall hold at the same time more than one office under the
government of the state except that any officer may be a
member of a statutory body having only advisory powers.
(Emphasis supplied.)
If the parks, planning, and zoning commission has been granted more than mere
advisory powers, that fact would exclude members of the commission from the
exemption found in Art. II 5(a), supra. Accord: Attorney General Opinion 069-62.
The City Charter of Vero Beach specifies the powers and duties of the
commission in Art. XIV, 123, Ch. 27943, 1951, Laws of Florida. That provision
makes clear that the commission is an advisory council. And 125 grants the city
council the authority
to pass any ordinance which it deems necessary to carry into
effect any plan or suggestion which the commission on city parks,
planning and zoning is authorized to make pursuant to the provisions of
this act.

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It is clear that the commission is a statutory body having only advisory powers.
Therefore, the members of the commission come within the exemption found in
Art. II, 5(a),supra.
Your question is answered in the affirmative.

073-48-March 8, 1973
ELECTION LAW
DUTY OF SECRETARY OF STATE TO
ENFORCE-SUBPOENA POWERS
To: Richard Stone, Secretary of State, Tallahassee
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
Does the Department of State have the duty to enforce the
provisions of 99.161(10), F. S. 1971, and to subpoena bank records of
public officials in performing that duty?
SUMMARY:
The Department of State has no duty to enforce the provisions of
99.161(10), F. S. 1971, nor to subpoena bank records of public officials
in connection with an alleged violation of the campaign-spending law.
Under 104.27, id., the duty to investigate alleged violations of this law
and to enforce it in appropriate judicial proceedings is vested in the state
attorney of the county in which the person charged with violating it
resides.
Your question is answered in the negative.
Under 15.13, F. S., the Department of State is vested with the "general
supervision and administration of the election laws, corporation laws and such
other laws as are placed under it by the legislature and shall keep records of same."
However, the Supreme Court of Florida stated in State ex rel. Shevin v. Stone, 279
So.2d 17 (Fla. 1972), that the secretary of state does not have the authority to make
factual determinations as to the violations vel non of the resign-to-run law or the
"campaign spending" law. The court said that "[a]ny challenge to the correctness
of the candidate's statement of compliance is for appropriate judicial determination
upon any challenge properly made, as here." [279 So.2d at 22.]
Section 104.27, F. S. 1971, provides a special procedure for the initiation in the
circuit court, by petition, of judicial proceedings to try alleged violations of
99.161, supra. The petition is filed in the circuit court of the county in which the
person charged with the violation resides. This statute makes it the duty of the state
attorney of that judicial circuit to investigate the charges made in such petition and
to file in the proceedings such pleadings as he determines should be filed.
Presumably, in the course of such investigation or proceedings, the state attorney
could compel the attendance of witnesses, as authorized by 27.04, id., as well as
the production of books and papers in the custody of any such witness as he may
properly, under applicable principles of law, be compelled to produce. See
Imparato v. Spicola, 238 So.2d 503 (2 D.C.A. Fla., 1970). However, as noted above,
there is nothing in the statutes which either expressly or by necessary implication
vests in the Department of State the duty or authority to enforce the provisions of
99.161, supra; it necessarily follows that it has no subpoena powers with respect
thereto.
I have not overlooked the provision of 104.27(8), supra, authorizing the

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Department of State to investigate a sworn complaint filed with it involving an
alleged violation of 99.161, supra, by a corporation, and requiring it to revoke the
corporation's charter if it is subsequently found by the court, in an appropriate
judicial proceeding, that the corporation has in fact violated the law. However, the
department's investigation is a preliminary, fact-finding one only; and it has no
power actually to adjudicate the question of the violation. Any findings of fact
indicating that a violation has occurred are referred by the department to the state
attorney in the appropriate county "for filing of a petition and pleadings in the
circuit court." Thus, even in this particular instance, the power to enforce the law is
vested in the judiciary, acting through its judicial officers.

073-49-March 8, 1973
MUNICIPALITIES
AUTHORITY TO AMEND SPECIAL ACT CREATING POLICE
AND FIRE DEPARTMENT PENSION FUND
To: Hyatt Brown, Representative, 31st District, Daytona Beach
Prepared by: Rebecca Bowles Hawkins, Assistant Attorney General
QUESTION:
May the City of Daytona Beach amend the provisions of a special act
creating its police and fire department pension fund by ordinance or by
amendment to its charter act?
SUMMARY:
A special act establishing a pension fund for a municipality may not
be amended by home rule ordinance; however, the provision of the
city's charter act adopting the pension plan established by that special
act could be amended by special act of the legislature and, perhaps, by
an ordinance approved by a majority of the electors voting on the
question adopted pursuant to 166.17, F. S. 1971.
Under Art. VIII, 2, State Const., a municipality of this state may exercise any
power for municipal purposes "except as otherwise provided by law. ." And
167.005(1), F. S. 1971, provides that municipalities
shall have governmental, corporate and proprietary powers
to enable them to conduct municipal government, perform municipal
functions, and render municipal services, and may exercise any power for
municipal purposes, except when prohibited by general or special law.
(Emphasis supplied.)
In AGO 070-150, my predecessor in office stated the general rule applicable
here, as follows:
Sa legislative direction by general or special act, including a
special charter act, as to the manner in which a particular municipal
function or purpose is to be performed, is ordinarily to be interpreted as a
prohibition against its being performed in a different manner; and .
such a legislative direction cannot be superseded by a "home rule"
ordinance in conflict therewith. When, however, a general or special law
provides an alternative method of accomplishing a municipal purpose
and merely authorizes a city to proceed in accordance therewith, such
permissive legislative authority would not be within the rule of statutory
construction referred to above.

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073-50 ANNUAL REPORT OF THE ATTORNEY GENERAL

The special act in question, Ch. 65-1443, Laws of Florida, did not provide a
"permissive" or "alternative" method for the city's police and fire department
pension plan. It specifically created the pension fund for employees of the police
and fire departments of the city and established a system of retirement, disability,
and death benefits for these employees. This being so, under the rule referred to
above, the City of Daytona Beach may not, by home rule ordinance, repeal or amend
the legislative directive in this respect.
The question of whether a municipality may effect an amendment or repeal of a
special act by an amendment to its municipal charter is not so easily resolved.
Under Art. VIII, 2, State Const., municipalities may be established or abolished
"and their charters amended pursuant to general or special law." And 166.17, F. S.
1971, authorizes the governing body of a municipality to initiate proposed
amendments to its charter (except that part describing the boundaries of the city) by
a three-fifths vote, subject to referendum approval by a majority of those voting in
the election. It was said in City of St. Petersburg v. English, 45 So. 483 (Fla. 1907),
that a city's "charter" consists of the creative act "and all laws in force relating to the
corporation, whether in defining its powers or regulating their mode of exercise."
And in AGO 071-177 I noted that, when an amendment to a municipal charter is
incorporated therein, it will have the same force and effect as if originally
incorporated therein, that is, the force and effect of law. When applied in the
situation here present, this would mean that the amended charter act, being later in
point of time than the 1965 special act, would supersede the earlier act under the
rule that, if there is a positive repugnance between two acts, the later act must
control. Tamiami Trail Tours v. Lee, 194 So. 305 (Fla. 1940).
Here, 80 of the city's charter act, Ch. 67-1274, Laws of Florida, expressly
provides that the city's police and fire department employee pension fund shall be
organized and operated under the provisions of Ch. 65-1443, supra. I understand
that it is desired to amend the 1965 act so as to extend to old members of the pension
fund plan the same right to "delayed retirement" as is presently held by new
members of the plan under 6.3 of Ch. 65-1443, supra.
Such an amendment could certainly be made by a special legislative act
amending the city's charter act; and I am inclined to the view that it could be done
also by the joint action of the municipality's governing body and the electorate of
the city in adopting an amendment to the city's charter act, as authorized by
166.17, supra.

073-50-March 9, 1973
CHIROPRACTIC
ACUPUNCTURE NOT WITHIN SCOPE OF PRACTICE
To: Dr. Paul Vogel, Administrative Coordinator, Florida State Board of
Chiropractic Examiners, Miami
Prepared by: S. Strom Maxwell, Assistant Attorney General
QUESTION:
Does the practice of acupuncture fall within the scope of practice
of chiropractic as outlined in Ch. 460, F.S.?
SUMMARY:
Pending legislative clarification or a judicial determination to the
contrary, the practice of acupuncture is not within the scope of the
practice of chiropractic as prescribed by Ch. 460, F. S., and a
chiropractic physician is not authorized to practice acupuncture for
anesthetic purposes in examining, analyzing, and diagnosing the

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-50

human living body and its diseases as outlined in 460.11(2)(a), F. S.,
or in adjusting, manipulating, or treating the human body as outlined
in 460.11(2)(b) and (4), F. S., or in the practice of chiropractic as
defined in 460.11(1), F. S.
In order to answer your question, the term "acupuncture" must first be
defined. Acupuncture is still virtually unknown in this country and is not
defined in any of the standard medical dictionaries or books of reference.
However, the following composite is a general definition of acupuncture:
Acupuncture involves the insertion of a sharp needle into
subcutaneous tissues of certain areas of the body in such a way as to
produce an anesthesia or diminution of pain sensation of other areas
removed from the site of the subcutaneous puncture by means of some
type of static electricity or direct electrical impulse.
In other words, needles are inserted at key nerve points in the body and then
vibrated to induce analgesia-insensibility to pain. Additionally, according to The
Case for Unorthodox Medicine, by Inglis, Berkley Medallion Book 1969, p. 113:
acupuncture is based on the belief that the body contains
certain channels through which energy flows. Through these meri-
dians (not to be confused with nerve channels) the life force normally
functions uninterruptedly. But if any part of the body is suffering from
some disorder, the flow in the meridian concerned will diminish,
disturbing the body's equilibrium and causing illness-not necessarily
at the site of the originally disturbed organ.
On the meridians, however, there are certain surface points where
if fine needles are inserted-not deeply but just far enough into the
flesh not to fall out-and left there for some minutes, they act like
spurs on a horse's flank. The nerve fibers of the autonomic nervous
system are stimulated, the impulse goes to the lower centers of the
brain and then back again to the diseased organ which is restored to its
normal balance.
According to U.S. News and World Report, March 13, 1972:
Acupuncture-a centuries-old Chinese medical practice that re-
lieves aches and pains-has recently become widely used in surgery in
other parts of the world. The Peking Union Medical College and other
Chinese Medical Universities claim that acupuncture in addition to the
above purposes of anesthesiology may be used to cure various diseases
or ailments, i.e., deafness, lung diseases, cancer and arteriosclerosis.
Although not defined in standard medical works, as hereinabove noted, The
Random House Dictionary of the English Language, Unabridged Edition,
defines acupuncture as being a Chinese medical practice that attempts to cure
illness by puncturing specified areas of the skin with needles, and as the
puncturing of a tissue with a needle for the purpose of drawing off fluids or
relieving pain.
Having attempted to define the term as best I can from sources available to
me, I will now turn to your question.
First of all, the practice of chiropractic is a privilege and not a right. The
Florida Legislature in 460.001, F. S., has succinctly set out the legislative intent
and purpose regarding the practice of chiropractic in Florida:
(1) It is hereby declared that the practice of chiropractic is a
privilege which is subordinate to the authority of the legislature to
enact reasonable laws to regulate the practice thereof to protect the
public health. The practice of chiropractic is declared to be a matter in

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073-50 ANNUAL REPORT OF THE ATTORNEY GENERAL

the interest of public health, safety and welfare; that to merit
confidence of the public and to protect the public from being misled
by incompetent, unscrupulous practitioners, the legislature has enacted
laws that will insure that only such chiropractic physicians who are
qualified shall be granted the privilege to practice.
and enacted Ch. 460, supra, as an exercise of the police powers of the state in the
interest of the public health, safety, and welfare of the people. Section
460.001(4), F. S.
Section 460.11(2)(a) and (b), supra, provides:
(2) Any chiropractic physician who has complied with the
provisions of this chapter may:
(a) Examine, analyze and diagnose the human living body and its
diseases by the use of any physical, chemical, electrical, or thermal
method, and use the x-ray for diagnosing, and may use any other
general method of examination for diagnosis and analysis taught in any
school of chiropractic recognized and approved by the Florida state
board of chiropractic examiners.
(b) Chiropractic physicians may adjust, manipulate, or treat the
human body by manual, mechanical, electrical or natural methods, or
by the use of physical means, physiotherapy (including light, heat,
water or exercise) or by the oral administration of foods and food
concentrates, food extracts, and may apply first aid and hygiene, but
chiropractic physicians are expressly prohibited from prescribing or
administering to any person any medicine or drug or from performing
any surgery except as hereinabove stated or from practicing obstetrics.
(Emphasis supplied.)
Acupuncture, therefore, is not specifically authorized in the above sections
either as a method of treatment or form of anesthesiology. Acupuncture, as the
practice of chiropractic, cannot be authorized by implication or innuendo.
Chiropractic is a profession regulated by law for the protection of the general
public. The statute defines chiropractic for all purposes to be a
non-combative principle and practice consisting of the
science of the adjustment, manipulation and treatment of the human
body in which vertebral subluxations and other malpositioned
articulations and structures that are interfering with the normal
generation, transmission and expression of nerve impulse between the
brain, organs, and tissue cells of the body, thereby causing disease, are
adjusted, manipulated or treated thus restoring the normal flow of
nerve impulse which produce normal function and consequent health.
[Section 460.11(1), F. S.]
Chiropractic and the practice of chiropractic have been judicially defined in
at least three instances by the highest tribunals in the states in which the
opinions have been rendered as follows:
"Chiropractic" is a system of adjustment, consisting of palpation
of the spinal column to ascertain vertebral subluxations, followed by
the adjustment of them by hand in order to relieve pressures upon
nerves at the intervertebral foramina, so that nerve force may flow
freely from the brain to the rest of the body; and the practice of
chiropractic constitutes the practice of medicine. [State Board of
Medical Examiners v. McHenry, 69 So.2d 592 (La. App. 1953) at 596.]
The practice of "chiropractic" is a method of detecting and
correcting by manual or mechanical means structural imbalance,
distortion or subluxations in the human body to remove nerve

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-50

interference where such is the result of or related to distortion,
misalignment or subluxation of or in the vertebral column. [Chiroprac-
tic Association of New York, Inc. v. Hilleboe, 228 N.Y.S.2d 358 (App.
Div. 1962) at 360.]
Chiropractic is a system or the practice of adjusting the joints,
especially of the spine, by hand for the curing of disease. The term
itself is one of art, which makes use of "Chiro," a Greek combining
form meaning, "hand." [Jacobsen v. Board of Chiropractic Examiners,
337 P.2d 233 (3 D.C.A. Cal. 1959)].
A chiropractic physician is not authorized by statute to administer drugs or
medicine to alleviate pain. See 460.11(2)(a) and (b), supra. Additionally, the
chiropractor may not perform surgery nor practice obstetrics. While it is true that
the chiropractor may use any physical, chemical, electrical, or thermal method
and x-ray to examine, analyze, and diagnose the human living body, these are
external means used in the practice as adjuncts and preparatory to adjustment or
manipulation of the body structure. Acupuncture is obviously an internal
method or procedure involving the puncturing of tissue in an effort to cure
illness or to relieve pain. It would not appear to be the adjustment,
manipulation, or treatment of vertebral subluxations or malpositioned articula-
tions and structures, or the adjusting of the physical representative of the
primary cause of disease, as defined and referred to in 460.11(1) and (4), F. S.
I am, therefore, unable to say that acupuncture is an electrical or mechanical
means to diagnose or treat the human body within the meaning of 460.11,
supra. And as persuasively stated in State v. Grayson, 92 N.W.2d 272 (Wis. 1958) at
277:
use of diagnostic instruments as taught in chiropractic colleges
and generally used in chiropractic practice, as well as purely relaxing
adjuncts such as heat lamps or hot towels, used preparatory to
adjustment, are permissible in practice of "chiropractic," but that use
of instruments or machines, constituting specific therapies in them-
selves are considered outside the scope of chiropractic
practice .. ..
The statutes are to be construed strictly in the interest of the general health,
safety, and welfare of the people of Florida. Since the term acupuncture is
practically unknown in this country or is at least "ill defined," and is not within
the statutory definition of chiropractic (460.11(1), F. S.), the chiropractic
physician is not expressly authorized by law to utilize this method or procedure
in examining or diagnosing or treating the human living body.
Accordingly, unless and until your question is legislatively or judicially
resolved to the contrary, I am of the opinion that the practice of acupuncture is
not within the scope of the practice of chiropractic as prescribed by Ch. 460, F.
S., and that a chiropractic physician is not authorized to practice acupuncture for
anesthetic purposes in examining, analyzing, and diagnosing the human living
body and its diseases as outlined in 460.11(2)(a), supra, or adjusting,
manipulating, or treating the human body as provided for in 460.11(2)(b) and
(4), supra. A chiropractic physician is also prohibited by law from performing
any surgery.
Since the question of whether the practice of acupuncture in an attempt to
cure illness or disease or to relieve pain properly falls within the prescribed
scope of practice of the medical, osteopathic, or chiropractic professions is one
for determination by the respective licensure boards, I would recommend that
the Board of Medical Examiners, Board of Osteopathic Medical Examiners, and
the Board of Chiropractic Examiners form a commission, if possible, for further
discussion to define terms more accurately and precisely and to determine

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whether acupuncture is an acceptable means of anesthesiology or treatment of
human diseases, and, if found to be, whether it falls within the authorized scope of
practice of some or all of the respective schools or systems of the healing arts. Each
board should, following a discussion and clarification of terms, establish by rule or
regulation whether acupuncture may or may not be utilized by its practitioners.

073-51-March 12, 1973
PUBLIC RECORDS
PERSONNEL FILES OF CIVIL SERVICE EMPLOYEES
To: Henry B. Sayler, Senator, 21st District, St. Petersburg
Prepared by: Joseph C. Mellichamp III, Assistant Attorney General
QUESTION:
May the personnel files of civil service employees (including
employment applications, confidential inquiries made of employers,
references, etc.) be maintained under two separate headings-the first
to include general qualifications and employment histories which
would be open to the public, and the second to contain investigative
reports and similar data which would not be available for general
inspection as an exception to 119.01, F. S.?
SUMMARY:
The personnel files of civil service employees (including
employment applications, confidential inquiries made of employers,
references, etc.) may not be maintained under two separate
headings--the first to include general qualifications and employment
histories which would be open to the public, and the second to contain
investigative reports and similar data which would not be available for
general inspection.
To the extent that any part of AGO 050-510 is inconsistent with this
opinion, said AGO 050-510 is hereby superseded.
Your question is answered in the negative.
Section 119.01, F. S., provides that all state, county, and municipal records
shall at all times be open for a personal inspection by any citizen of Florida, and
those in charge of such records shall not refuse this privilege to any citizen.
Reference was made in your letter to AGO 050-510, Oct. 31, 1950, Biennial
Report of The Attorney General, 1949-1950, p. 165, which stated that a dual filing
system on merit system employees could be maintained and that the files
containing investigative reports and similar data would not have to be made
available for general inspection as an exception to 119.01, supra. However, since
that opinion was rendered, not only has the career service commission replaced the
merit system, but the legislature enacted Ch. 67-125, Laws of Florida, which
amended Ch. 119, F. S., by, among other things, adding 119.011.
Section 119.011(1), supra, defines public records to mean all documents,
papers, letters, maps, books, tapes, photographs, films and sound recordings or
other material, regardless of physical forms or characteristics, made or received
pursuant to law or ordinance or in connection with the transaction of official
business by any agency. "Agency" is defined by 119.011(2) to mean any state,
county, or municipal officer, department, division, board, bureau, commission, or
other separate unit of government created or established by law.
In AGO 071-243 it was held that reports made by engineers in connection with
the collapse of the roof of a school building and received by a school board as part of

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ANNUAL REPORT OF THE ATTORNEY GENERAL 073-51

its official investigation of the incident were public records within the meaning of
119.011, supra.
It was determined in AGO 071-394 that the receipt by a school board of
information relating to the background and qualifications of applicants for the
position of superintendent for the school district was an essential part of the process
of employing a superintendent. It was held further that such information was made
or received pursuant to law and that such records were public records within the
meaning of 119.011, supra. Additionally, it was stated that the process of hiring a
superintendent pursuant to various provisions of law was clearly the "transaction
of official business"; thus, the applications for the position of superintendent and
the various confidential reports on the fitness of the applicants were certainly
received in connection therewith. Any other conclusion would place an unduly
restrictive construction on the words "in connection with the transaction of official
business" as used in 119.011, supra.
In view of the fact that Art. IIl, 14, State Const., provides for the
establishment of civil service systems for state, county, district, and municipal
employees, and inasmuch as such systems have been established by general or
special law and ordinances with various prescribed qualifications for employment,
method of selection, and tenure of employment, it is my opinion that the receipt of
employment applications and information related to the fitness of applicants is an
essential requisite in the process of employing said applicants. Consequently, such
materials are made or received pursuant to law and are public records. Moreover,
the process of hiring applicants pursuant to the aforementioned laws is clearly the
transaction of official business; thus, employment applications and confidential
reports regarding the fitness of such applicants are certainly received in connection
therewith.
It remains only to determine whether the records in question fall within any
exception to Ch. 119, supra. Section 119.07(2)(a) provides that:
All public records which presently are deemed by law to be
confidential or which are prohibited from being inspected by the public,
whether provided by general or special acts of the legislature or which
may hereafter be so provided, shall be exempt from the provisions of this
section.
Further, 119.07(2)(b), F. S., provides that "[a]ll public records referred to in
794.03, 198.09, 199.222, 658.10(1), 624.319(3),(4), 624.311(2), and 63.181, are
hereby exempt from the provisions of this section."
The records in question do not fall into any of the enumerated sections, and I
have been unable to locate any other statutory exceptions which would encompass
them. It is a familiar rule of statutory construction that where the legislature
provides express exceptions to a statute, there is a strong presumption that no other
exceptions were intended. Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla. 1952); 50 Am.
Jur. Statutes 434, p. 455.
Hence, the court in Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417,
423 (5th Cir. 1968), refused to infer an exception to Ch. 119, F. S.:
The Florida legislature has chosen to grant a privilege from public
disclosure of some records of state agencies.

The legislature has accorded no such privileged status to
investigation reports of the State Fire Marshal. No section
contains even a hint that the reports are privileged. In light of the
existence of specific statutory privileges for reports of other state
agencies, we conclude the Florida legislature has chosen not to confer
such status on reports of the Fire Marshal.

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The courts have recognized that public policy may require
restrictions on the right to inspect public records. See Patterson v.
Tribune Co., 146 So.2d 623 (Fla. App. 1962).
0 o 0 0
While certain records of the Fire Marshal may be analogous to
investigative police reports, the Florida courts have not extended the
public policy exception to the Fire Marshal's records.
In the absence of statutory privilege, and in light of a general policy
favoring public inspection of government records, we conclude the
district court erred. .
Similarly, the court in Maxwell v. Pine Gas Corp., 195 So.2d 602,603 (4 D.C.A.
Fla., 1967), refusing to infer an exception to Ch. 119, supra, for tangible personal
property tax returns, pointed out:
All state, county and municipal records are open for personal inspection
of any citizen. F.S.A. 119.01. Such records are not the personal property
of a public officer. Bell v. Kendrick, 1889, 25 Fla. 778, 6 So. 868. The
Legislature has seen fit to make records of intangible personal property
tax returns confidential. F.S.A. 199.101. There is no similar statutory
privilege for tangible personal property tax returns.
The legislature has seen fit to create a number of express statutory exceptions to
Ch. 119, supra; additionally, AGO 072-168 sets out certain common law exceptions
such as investigative police reports and records made in connection with official
police investigations. However, the records under consideration do not fall within
231.29(3), F. S., or any other exception, and, consequently, no exception can be
inferred. See State ex rel. Cummer v. Pace, 159 So. 679 (Fla. 1935).
Based on the foregoing, it is my opinion that the personnel files of civil service
employees (which files include employment applications, confidential inquiries
made of employers, references, etc.) may not be maintained under two separate
headings-the first to include general qualifications and employment histories
which would be open to the public, and the second to contain investigative reports
and similar data which would not be available for general inspection. Further,
under such circumstances and by virtue of the aforementioned change in the
statutory law, AGO 050-510 is no longer applicable to the state or any of its political
subdivisions or to municipalities; and the same no longer controls or governs in the
area of personnel files. To the extent that any part of AGO 050-510 is inconsistent
with the instant opinion, said AGO 050-510 is hereby superseded.

073-52-March 12, 1973
PUBLIC OFFICERS
VACANCY IN OFFICE FOR NONFULFILLMENT OF
RESIDENCY REQUIREMENT
To: J. Steven Gribble, Attorney, Charlotte County Development Authority, Port
Charlotte
Prepared by: Henry George White, Assistant Attorney General
QUESTION:
Must the members of the Charlotte County Development Authority,
with the exception of the at-large member, reside in the districts from
which they were appointed or elected?

84

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-52

SUMMARY:
With the exception of the one at-large member, each member of the
Charlotte County Development Authority must reside within the
district from which he was appointed or elected. When any such
member ceases to reside in the district from which he shall have been
elected or appointed his office is deemed to be vacant pursuant to
114.01(4), F. S.
Your question is answered in the affirmative for the reasons that follow.
The Charlotte County Development Commission was created by Ch. 65-1357,
Laws of Florida, as amended by Ch. 70-628, Laws of Florida*, Section 4, Ch.
65-1357, states:
Membership, appointment, term of office. The Charlotte county
development commission shall be composed of eleven (11) members.
The five (5) members of the Charlotte county board of county
commissioners and the remaining six (6) members of the development
commission appointed or elected according to the provisions of Chapter
63-1207, Laws of Florida 1963, shall constitute the membership of the
Charlotte county development commission, and members of the
development commission shall be elected hereafter in the manner
provided by said chapter 63-1207, Laws of Florida 1963.
The answer to your question requires an examination of the language of 2, Ch.
63-1207, Laws of Florida, which reads in pertinent part as follows:
The Board of County Commisioners of Charlotte County shall appoint
one (1) member from each County Commissioner's District, said
members to serve until the expiration of the term of office of the County
Commissioner from the District wherein the member is appointed. The
remaining member shall be appointed by the Board of County
Commissioners without regard to any residence in any particular district
. (Emphasis supplied.)
This section further provides that the at-large member of the authority shall be
elected for a two-year term commencing with the general election of November,
1964, while the remaining noncounty commissioner members shall be elected for
four-year terms upon the expiration of their respective appointive terms.
Although 2 of Ch. 63-1207, Laws of Florida, does not explicitly require that
the non at-large members of the authority reside in the districts from which
appointed and which they represent, this requirement is nevertheless implicit in
the terms of the statute. In the first place, it must be observed that the county
commissioners, who fill five of the positions on the authority, must reside in the
district from which they were elected. Article VIII, l(e), State Const. Secondly, it
will be noted that 2 of Ch. 63-1207 provides that five members of the authority
shall initially be appointed, with one such member being from each of the five
county commission districts. The fact that the appointive terms and subsequent
elective terms of these members of the authority were tied to the terms of office of
the county commissioners from the respective districts is indicative of a legislative
intent to have representation on the authority continue on a district basis with the
members residing within their respective districts. Finally, it is important to note
that the remaining member of the authority was to be initially appointed and
thereafter elected without regard to residence in any particular district. The express
waiver of district residence requirements for the at-large member implies the
intention to impose such a requirement on the other members of the authority. Any

*Which changed the name to Charlotte County Development Authority-Ed.

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073-53 ANNUAL REPORT OF THE ATTORNEY GENERAL

other interpretation of this language would render meaningless the waiver of
district residence requirements for the at-large member of the authority. It is a
time-honored rule that statutes should be construed so as to give meaning, to the
extent possible, to all of the language employed by the legislature. Arvida Corp. v.
City of Sarasota, 213 So.2d 756 (2 D.C.A. Fla., 1968).
For the foregoing reasons it is my opinion that each member of the Charlotte
County Development Authority, with the exception of the single at-large member,
must reside in the district from which he was appointed or elected. When a member
ceases to reside in the district from which he shall have been elected or appointed,
his office becomes vacant pursuant to the provisions of 114.01(4), F. S. Vacancies
which occur on the Charlotte County Development Authority should be filled in
accordance with the provisions of 5, Ch. 65-1357, Laws of Florida.

073-53-March 12, 1973
STATE BUILDINGS
APPLICABILITY OF SOUTH FLORIDA BUILDING CODE;
DETERMINATION OF COMPLIANCE WITH CODE
To: Chester Blakemore, Executive Director, Department of General Services,
Tallahassee
Prepared by: Henry George White, Assistant Attorney General
QUESTIONS:
1. Do the provisions of Ch. 71-575, Laws of Florida, as amended
by Ch. 72-482, Laws of Florida, apply to state buildings constructed in
Broward County under the auspices of the Division of Building
Construction and Maintenance of the Department of General Services?
2. Do the provisions of the special acts require that compliance
with the South Florida Building Code be determined by Broward
County officials or engineers, as well as by state officials or engineers,
for state buildings being constructed in Broward County?
SUMMARY:
The provisions of Ch. 71-575, Laws of Florida, as amended by Ch.
72-482, Laws of Florida, require that all construction, alterations,
additions, or repairs which are undertaken with respect to state
buildings located in Broward County be in compliance with the
provisions of the South Florida Building Code. However, the authority
to determine whether such state buildings are in compliance with the
code rests with the state Division of Building Construction and
Maintenance in the absence of a clear legislative delegation of that
authority to local governmental officials.
In AGO 071-233 I ruled on a question substantially the same as the first
question you pose. That opinion discussed the long-standing general rule that state
property is exempt from regulation by municipal authorities unless the state has
waived the right to regulate its own property. See 13 Am. Jur. 2d Buildings 7; and
47 Am. Jur. State 56. The same rule was applied in AGO's 062-41 and 071-75 with
respect to county regulation of state property. The issue in AGO 071-233 was
whether the language of Ch. 71-575, Laws of Florida, providing that "[t]he South
Florida Building Code, Dade County 1970 edition, as amended shall apply
to all municipalities and unincorporated areas of Broward County" was a clear
legislative declaration that state-owned buildings be subject to the requirements of

86

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-53

the code in question. It was held that the provisions of Ch. 71-575, supra, did not
constitute an express legislative waiver of the state's control over its own buildings.
Subsequent to the ruling in AGO 071-233, the legislature enacted Ch. 72-482,
Laws of Florida, which amended Ch. 71-575, supra, by adding the following
provision:
Section 2(a). The South Florida Building Code as applicable to
Broward County shall apply countywide in both incorporated and
unincorporated areas to all new buildings and structures, both private
and public, and to all alterations, additions and repairs in any new or
existing building or structure, both private and public, including but not
limited to public schools, county buildings or structures, municipal and
state buildings or structures, hospitals, and any other building or
structure of any governmental authority. (Emphasis supplied.)
The language used in Ch. 72-482, supra, to designate the areas and buildings
covered by the South Florida Building Code is substantially the same as the
language employed in 553.17, F. S., to define the coverage for the Florida
Electrical Code. In AGO 071-75 it was held that the Florida Electrical Code was
expressly made applicable to public buildings, including state buildings, by the
provisions of 553.17. Similarly, I am of the view that the language of Ch. 72-482
expressly requires that all public buildings, including state buildings, conform
with the standards of construction contained in the South Florida Building Code as
adopted in Ch. 71-575, supra. Your first question is, therefore, answered in the
affirmative.
The question of who shall determine whether state buildings in Broward
County are in compliance with the South Florida Building Code is not so readily
answered. Section 3 of Ch. 71-575, supra, reads as follows:
Inspection and enforcement of the South Florida building code shall
be the responsibility of elected or appointed city commissioners, city
councilmen, and mayor of each municipality; and the responsibility of
elected or appointed members of the Board of County Commissioners in
all unincorporated areas within Broward County.
Standing alone, the meaning of 3 seems clear. However, it will be noted that Ch.
72-482, supra, was superimposed on Ch. 71-575 and it was Ch. 72-482 which
brought state buildings under the provisions of Ch. 71-575. Chapter 72-482 does
not contain an express waiver by the state of its right to control its own buildings,
nor a delegation to local authorities of the right to enforce the code as to state
buildings. Of course, when the provisions of the two acts are read together, the
language of 3 of Ch. 71-575 appears to grant to local governmental officials the
power to enforce the South Florida Building Code against state buildings. But this
construction of the statutes in question requires a full exploration of the
consequences which the legislature is presumed to have known would flow
therefrom.
Section 301 of the South Florida Building Code requires that an application for
a permit be filed, and a permit be issued, prior to the construction, alteration, or
repair of any building. An exception is made for repair or maintenance work, the
cost of which does not exceed one hundred dollars for labor and material. Section
302 provides that applications for permits will be accepted only from applicants
who are qualified under separate ordinance. Section 302.2 details the requirements
of the plans and specifications which must accompany applications for permits.
The plans must be approved by the local building official according to the terms of
302.4. Section 303 of the code requires that a permit fee be paid before a permit is
issued. Section 305.2 requires mandatory inspections, by local building officials, at
numerous critical stages of construction. Finally, 307.1 prohibits the occupation
or use of a new structure or addition prior to the issuance of a Certificate of

87

073-53 ANNUAL REPORT OF THE ATTORNEY GENERAL

Occupancy by the local building official. The amount of control which is vested in
local officials under the provisions of the South Florida Building Code explains the
necessity for a careful examination of the question of whether the legislature
intended to grant local authority the power to enforce the code against state
buildings. This question is also important because of the code's conflicts and
duplications with the state's mechanism for supervising construction of its
buildings.
The Division of Building Construction and Maintenance of the Department of
General Services is charged, under 255.25, F. S., with the responsibility of
approving the architectural design and preliminary construction plans for all
buildings which any state agency proposes to construct. Chapter 288, F. S., deals
with commercial development and capital improvements. In 288.18, the division
is made responsible for promoting state building projects in communities where
state buildings are needed. Section 288.15(5) authorizes the Division of Building
Construction and Maintenance to cooperate fully with other state agencies in the
acquisition, construction, extension, and maintenance of public buildings,
facilities, and improvements when such buildings and facilities are intended for
the ultimate use of the state or its instrumentalities. Section 288.15(9) provides that
the provisions of 288.15(5), supra, should be liberally construed in order to
effectuate the purposes and objectives thereof.
The Division of Building Construction and Maintenance has interpreted these
statutory provisions as authorizing and requiring that it supervise all phases of the
construction of state buildings throughout the state. Accordingly, the division
approves all plans for the construction of state buildings and assures that such
plans conform to local building code requirements where such requirements are
not inconsistent with state law. In addition, the division makes regular inspections
of construction projects to further assure that local and state building requirements
are being met. The division also attempts to cooperate with local building officials
to the fullest extent possible. These practices have been followed by the division
since at least 1969 when the Reorganization Act became effective, and, as was
observed in Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788 (Fla. 1952):
Contemporaneous administrative construction of (a) statute by those
charged with its enforcement and interpretation is entitled to
great weight and courts generally will not depart from such construction
unless it is clearly erroneous or unauthorized.
It is apparent that the supervision and control over the construction of state
buildings which is exercised by the Division of Building Construction and
Maintenance is inconsistent with the authority which is vested in local Broward
County building officials under the special acts in question. If Ch. 71-575, supra, as
amended by Ch. 72-482, supra, is interpreted as a waiver of the state's right to
enforce the standards of construction contained in the South Florida Building
Code as to state buildings in Broward County, the state would be required to have
its plans approved by building officials in Broward County and pay permit fees,
which are used in part to offset the costs of making regular inspections during the
course of each building project, even though the state has employed professional
personnel in the Division of Building Construction and Maintenance to perform
these services. An intention to create such an incongruous result should not be
imputed to a legislature which is presumed to have had knowledge of the existing
laws on the subject. Compare City of St. Petersburg v. Siebold, 48 So.2d 291 (Fla.
1959), with Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806
(Fla. 1964). On the contrary, an efficient purpose should be ascribed to legislative
enactments. City of Daytona Beach v. City of Port Orange, 165 So.2d 678 (1 D.C.A.
Fla., 1964).
The inefficiency which results from the statutory construction suggested
above can be avoided by interpreting Ch. 72-482, supra, as an expression of the

88

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-54

legislature's desire that state buildings in Broward County be constructed in
accordance with the provisions of the South Florida Building Code, but that
enforcement of the code and supervision of construction be vested in the Division
of Building Construction and Maintenance in accordance with their long-standing
practice under existing law. This interpretation resolves the uncertainty as to the
legislature's intent with respect to Ch. 72-482 in a manner which benefits the public
and it allows a reasonable field of operation for both the general and special laws on
the subject. See Sunshine State News Co. v. State, 121 So.2d 705 (3 D.C.A. Fla.,
1960), and Markham v. Blount, 175 So.2d 526 (Fla. 1965).
For the foregoing reasons it is my view that until the matter is legislatively or
judicially clarified, Ch. 72-482, supra, should not be deemed to vest in local
building officials in Broward County the authority to enforce the provisions of the
South Florida Building Code as to state buildings. The Division of Building
Construction and Maintenance has the responsibility of assuring that all state
buildings in Broward County are in compliance with the code. The division also
continues to have general supervision and control over all state buildings which are
constructed throughout Florida.

073-54-March 13, 1973
MUNICIPALITIES
REGULATION OF ESTABLISHMENTS LICENSED BY
DIVISION OF BEVERAGE
To: Tom R. Sewell, City Manager, Winter Garden
Prepared by: Stephen F. Dean, Assistant Attorney General
QUESTION:
May a municipality, by ordinance, prohibit sale of alcoholic
beverages for consumption on the premises regardless of alcoholic
content within its city limits, even though a resident business has been
issued a license for such purpose by the Division of Beverage?
SUMMARY:
Under the powers granted municipalities under the state Constitu-
tion and general laws of the state, including the general "home rule"
provisions thereof, a Florida municipality by ordinance may not prohibit
the sale of alcoholic beverages regardless of alcohol content for
consumption on the premises within its city limits to a resident business
establishment which has been issued a license for such purpose by the
Florida Beverage Commission because the state, through a comprehen-
sive system of regulatory laws, maintains preeminence in the regulation
and control of alcoholic beverages.
Throughout this opinion, the specific ordinance enacted by the City of Winter
Garden is as follows:
Section 5-15. Number of licenses allowed in city.
(a) No person, firm, or corporation engaged in or intending to be
engaged in the selling or dealing in alcoholic beverages shall be issued a
license or permit to sell such alcoholic beverages in the corporate limits of
the city so that the number of such licenses within the limits of the city
shall exceed one license to each two thousand five hundred (2,500)
residents, or major fraction thereof.
(b) This section shall not apply to those licenses described in
Section 561.20(2), Florida Statutes, 1959, nor shall it apply to

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073-54 ANNUAL REPORT OF THE ATTORNEY GENERAL

establishments in being as of the date of June 27, 1960.
(c) For purposes of this section, persons, firms, or corporations
engaged in the business of selling alcoholic beverages shall include those
establishments selling all types of alcoholic beverages regardless of their
percentage of alcoholic content.
The above ordinance was enacted pursuant to the following enabling legislation
found at 10(28) of Ch. 61-3004, Laws of Florida:
Powers of City; General. The City of Winter Garden hereby created,
established and organized, shall have full power and authority:

(28) Sale, etc., of Intoxicants. To regulate the hours of sale of
intoxicating liquors, wines and beers within the limits of the city. To
regulate or prohibit the sale, transportation or possession of intoxicating
liquors, wines and beers within the limits of the city.
The Florida Supreme Court considered the specific subject matter raised by
your question in City of Miami v. Kichinko, 22 So.2d 627 (Fla. 1945), when it
quoted at length from the order of Circuit Judge Ross Williams which it affirmed.
The court, in considering the validity of a City of Miami ordinance purporting to
limit the number of liquor licenses according to population, said it is elementary
that municipalities have or can possess only such power as is conferred by
expressed or implied provisions of law. The State Beverage Law does not impair the
right of any municipality to enact ordinances regulating the hours of business and
location of places of business, and prescribing sanitary regulations therefore, of any
licensee under the beverage law within the corporate limits of such city or town.
These powers are all given to municipalities by the State Beverage Act.
Examination of the act fails to disclose any power, expressed or implied, over the
subject of intoxicating liquor, other than enumerated above. Applying the familiar
legal maxim, expression unius est exclusio alterius, the court states it was clearly the
intent of the legislature to inhibit all powers of municipalities over the subject of
intoxicating liquors, except as to those powers specifically enumerated. See
562.45, F. S. Section 562.14, F. S., provides further that exceptet as otherwise
provided by municipal ordinance, no alcoholic beverages may be sold,
consumed, served, or permitted to be served or consumed in any place holding a
license between the hours of midnight and 7:00 a.m. of the following
day."
Section 168.07, F. S. 1971, also deals with municipal powers concerning
alcoholic beverage regulation and provides as follows:
(1) The city or town council may regulate and restrain all tippling,
barrooms and all places where beer, wine or spirituous liquor of any kind
is sold, at retail or to be drunk upon the premises where
sold and taverns, hotels and other houses for public entertain-
ment; require all such places to be kept and used subject to such
reasonable regulations as the council may prescribe; require all keepers
of such places to procure from the city or town a license for keeping the
same, under such pains, penalties and forfeitures as the council may
prescribe.
It should be noted, however, that the scope of the power granted under 168.07 was
considered by the Florida Supreme Court in Nelson v. State, 26 So.2d 60 (Fla.
1946), in which the court reconsidered City of Miami v. Kichinko, supra, with
regard to municipal powers beyond those specifically mentioned in the latter case.
The court, in discussing 168.07, held that said statute gives a city broad police
power to regulate and those powers should not be stricken down unless they run

90

ANNUAL REPORT OF THE ATTORNEY GENERAL 073-54

afoul of some provision of the beverage laws. The corollary to this rule as stated in
the case is that a municipality may regulate areas not regulated by the state in such a
manner that municipal regulation does not run afoul or infringe some provision of
the state regulation.
The most important change in the constitutional and statutory law since
Nelson v. State, supra, has been in the area of general municipal governmental
powers granted pursuant to Art. VIII, 2, State Const., as implemented by 167.005,
F. S. 1971. Together these provisions grant "home rule" to Florida municipalities.
The question therefore becomes whether the grant of home rule would modify the
decisions reached in the cases cited above.
The Supreme Court, considering the question of state and local regulation with
regard to Art. VIII, 2, State Const., in City of Miami Beach v. Fleetwood Hotel,
Inc., 261 So.2d 801 (Fla. 1972), relative to municipal authority to control rents said:
Local governments have not been given omnipotence by home rule
provisions or by Art. VIII, 2 of the State Const. "Matters that because of
their nature are inherently reserved for the State alone and among which
have been the master and servant and landlord and tenant relationships,
matters of descent, the administration of estates. and many other
matters of general and statewide significance, are not proper subjects for
local treatment. ." Wagner v. Mayor and Municipal Council of
Newark, supra, at 800. Mr. Justice Cardozo in Adler v. Deegan, 251 N.Y.
467, 167 N.E. 705, 713 (Ct. App. 1929) made the following statement
which is in support of the abovestated proposition. "There are other
affairs exclusively those of the state. None of these things can be
said to touch the affairs that a city is organized to regulate, whether we
have reference to history or to tradition or to the existing forms of
charters."
Article VIII, 5, State Const., which provides as follows, should also be
considered:
Local option on the legality or prohibition of the sale of intoxicating
liquors, wines or beers shall be preserved to each county. ... Where
legal, the sale of intoxicating liquors, wines and beers shall be regulated
by law. (Emphasis supplied.)
The emphasized portion of the quoted material states that the sale shall be regulated
by law, which refers to the general or special law. It is therefore clear that the state
legislature is vested with the power to regulate the sale of alcoholic beverages by
statute. Under the home rule powers granted to municipalities by the Constitution,
as implemented by 167.005, F. S. 1971, they may exercise any power for municipal
purposes "except as otherwise provided by law" [Art. VIII, 2(b), State Const.], or
where "prohibited by general or special law" (167.005). The state beverage laws
do, however, as hereinabove noted, inhibit the powers of municipalities to control
the licensing and regulation of the sale of alcoholic beverages (except for the
enumerated exceptions therein).
With regard to general or local laws regulating alcoholic beverages pursuant to
Art. VIII, 5, State Const., the legislature completely revised, amended, and
reenacted the State's Beverage Law by substantial changes in Ch. 72-230, Laws of
Florida. The five chapters contained therein constitute a complete plan for the
state's regulation of this area with only limited authority granted to local
governments. The extent of this delegated authority has been reviewed above with
one exception as hereinafter discussed.
The only exception to the general law which provides for local limitation by
population of beverage licenses is contained in 561.20, F. S., as amended in Ch.
72-230, supra, which provides in pertinent part as follows:
(1) No license under 565.02(1)(a)-(f), inclusive, shall be issued so

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073-55 ANNUAL REPORT OF THE ATTORNEY GENERAL

that the number of such licenses within the limits of the territory of any
county shall exceed one such license to each 2500 residents, or major
fraction thereof, within such county, as shown by the last regular
statewide census, either federal or state, of such county. However, such
limitation shall not prohibit the issuance of at least three licenses in any
county that may approve the sale of intoxicating liquors in such county.

(4) The limitations herein prescribed shall not affect or repeal any
existing or future local or special act relating to the limitation by
population and exceptions or exemptions from such limitation by
population of such licenses within any incorporated city or town or
county that may be in conflict herewith.
It would therefore appear that the only delegation of powers to local governments
concerning regulation of licenses by population is contained in 561.20(4), which
would require local regulation be pursuant to a local or special act of the legislature.
In the instant situation the limitation by population of beverage licenses is
contained in a municipal ordinance, not a local or special act of the legislature. Such
regulation by municipal ordinance is not authorized by any provision of the state
beverage law. No local or special law relating to the limitation by population or
exceptions therefrom of beverage licenses within your city has.been brought to my
attention, and I assume that no such local or special law exists.
Therefore, the answer to the question presented must be in the negative.

073-55-March 13, 1973
TRAFFIC CONTROL LAW
ARRESTS IN CONNECTION WITH TRAFFIC ACCIDENTS;
QUESTIONING DRIVER INVOLVED
To: Elton T. Naylon, Chief of Police, Hollywood
Prepared by: Reeves Bowen, Assistant Attorney General
QUESTIONS:
1. When the driver of an automobile involved in an accident has
already left the scene of the accident before the arrival of an
investigating officer, does 316.017, F. S., authorize such officer to go
elsewhere after making his investigation and arrest such driver upon
probable cause to believe that he committed an offense in connection
with the accident?
2. Does the amount of time that has elapsed between the time of
the accident and the time that the officer finds out the identity of the
driver to be arrested make any vital difference?
3. May a police officer arrest a person under 316.017 on the
basis of information turned over to him by another police officer who
conducted the initial investigation?
4. In the event that a police officer ascertains the whereabouts
of a driver who left the scene of a property damage accident and goes
to such driver's home to interview him, does the police officer prior to
any questioning have to advise the suspect of his rights under
Miranda v. Arizona?
SUMMARY:
Section 316.017, F. S., authorizes an officer making an investiga-

92

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