Title: Memorandum Of Law re: Question
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 Material Information
Title: Memorandum Of Law re: Question
Alternate Title: Memorandum Of Law re: Question: Are the basin boards located within the geographic jurisdiction of the Southwest Florida Water Management District (District) legal entities under the laws of Florida having the capacity to sue and be sued? Answer Yes. Anal
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 4, Folder 1 ( SF BASIN BOARD CONCEPT ), Item 19
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00051935
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text








MEMORANDUM OF LAW




QUESTION: Are the basin boards located within the
geographic jurisdiction of the Southwest
Florida Water Management District (District)
legal entities under the laws of Florida
having the capacity to sue and be sued?


ANSWER: Yes.


ANAYLSIS: Florida case law on the question of the
authority of public bodies to sue and be sued
a question directed at the fundamental
issue of legal entity --- strongly suggests
that these basin boards have authority to sue
and be sued. In North Miami Beach Water
Board v. Gollin, 171 So.2d 584 (3rd DCA 1965)
the court determined that the water board was
not a legal entity and, consequently, had no
authority to maintain an action for writ of
mandamus. The court's determination turned
on whether the water board was subservient
to the city or an autonomous entity. The
court based its determination of subservience
upon such factors as appointment of the board
by the city council; the capacity of the city
council to remove members of the board; the
power of the city council to fix compensation
for board members; the requirement that the
board's operations conform with city
ordinances; and the authority of the city to
charge and collect rates.







2



In City of Miami, et al, v. Carlos Rodriquez
-Quesada, 388 So.2d 259 (3rd DCA 1980), the
court similarly found that the Little Havana
Community Development Board created by the
City Commission was not a legal entity. In
rendering that decision, the court noted that
the board had been created as an
advisory/citizen-input board by the city
itself and particularly noted the temporary
nature of the board; it had been created by
resolution on April 30, 1979; its members
were duly elected on July 30; the city
commission found that "the board did not
provide an opportunity for residents to-voice
their opinions and had alienated resident
participation within the area"; on January
24, 1980, the city commission abolished the
elective board. Again, the court looked to
the subservience of the advisory board, its
creation by the Commission and the temporary
tenure it enjoyed.


In the case at bar, the members of the eight
basin/boards are appointed by the Governor of
the State of Florida, subject to confirmation
of the Florida Senate. The boards have
substantial authority granted by statute.
These duties are enumerated in Section
373.0695 (a copy of which is attached as
Exhibit A). They have ad valorem taxing
authorities specified in Section 373.0697.
Under this section, the governing board is
required to levy the basin tax requested by
the basin board, and no basin tax shall be
levied within the basin without the formal
approval of the basin board.







3



The basin boards themselves are a creation of
a composite of legislative special acts,
general acts and district rules. The
Manasota Basin Board was created by statute,
F.S. 373.069. The Peace River Basin Board
was created by Chapter 59-1002, Laws of
Florida. The Green Swamp Basin was created
by Chapter 61-691, Laws of Florida. The
creation of the other watershed basins was
mandated by Chapter 61-691, Laws of Florida.
By rule, the district set out the geographic
boundaries of these basins.


Application of the case law to this specific
factual situation implies that basin boards,
as quasi-autonomous entities, probably have
the authority to bring and maintain actions
in courts of law and equity. Florida
statutes, however, answer the question with
even less ambiguity. Section 373.129 (a copy
is attached as Exhibit B) provides as
follows:


"Maintenance of actions. The
department, the governing board of any
water management district, or any
local board is authorized to commence
and maintain proper and necessary
actions and proceedings in any court
of competent jurisdiction for any of
the following purposes: (4) to
defend all actions and proceedings
involving its powers and duties
pertaining to the water resources of
the state".

A review of' the legislative history of this
section confirms that reference to "local
boards" is a reference to basin boards. The
genesis of the section is found in Chapter
57-380, Laws of Florida. Section 16 of that







6.4



act (Senate Bill 119) authorized the "board"
(State Board of Conservation) to maintain
actions in court to defend its powers and
duties pertaining to water resources. In
1963, (following creation of the Southwest
Florida Water Management District by 61-691),
the language of the section was amended to
include "the governing board of any water
management district or any local board".
Other sections of 63-336, Laws of Florida,
make clear that the "local boards" is a
reference to sub-districts of water
management districts. As recently as.1979,
the Florida legislature revisited this
statutory section, updated the reference to
change "division" to read "department", but
chose to leave intact the authorization for
"local boards" to maintain actions.


In conclusion, then, it seems that the
statute disposes of the issue with absolute
certainty. Local boards are authorized by
statute to commence and maintain proper and
necessary actions and proceedings in any
court of competent jurisdiction to defend all
actions and proceedings involving their
powers and duties.



Mygnon C. Evans
Vice President,
Staff Legal Counsel
Florida Citrus Mutual
< Post Office Box 89
Lakeland, FL 33802
(813) 682-1111

7-31-84





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