Title: Sundown Act, Chapter 82-46; Regulatory Sunset Act, Chapter 84-94
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 Material Information
Title: Sundown Act, Chapter 82-46; Regulatory Sunset Act, Chapter 84-94
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum of Law July 6, 1987 By: L.M. Buddy Blain
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 17
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000846
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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LAW OFFICES
BLAIN & CONE, P A.

L. M. BUDDY BLAIN 202 MADISON STREET
THOMAS E. CONE, JR. TAMPA, FLORIDA 33602
HALLIE S. EVANS (813) 223-3888
CHARLES G. STEPHENS MEMORANDUM OF LAW
OF COUNSEL
E. CLAYTON YATES
JOHN P. CORCORAN, JR.


SUBJECT: Sundown Act, Chapter 82-46; Regulatory Sunset Act,
Chapter 84-94

DATE: July 6, 1987
BY: L. M. Buddy Blain

QUESTION: What are the consequences of repeal of the governing
boards and basin boards of water management districts?

FACTS:

In 1982 the Florida Legislature passed the new Sundown Act,
Chapter 82-46, which provides for periodic legislative review and
repeal of certain advisory boards, commissions and boards of
trustees adjunct to executive agencies. These advisory boards,
commissions and boards of trustees are to be repealed on specific
dates unless reenacted following such review. The governing
boards and basin boards of the Water Management Districts
(hereafter WMDs), established by Florida Statutes Chapter 373,
will be repealed on October 1, 1988, pursuant to the 1982
legislation. However, the State will remain divided into five
WMDs as set out in Section 373.069, since that section is not
repealed.

SUMMARY:

Many problems may be anticipated as a result of the Sundowning of
the governing boards and basin boards as now set out in the
Sundown Act if the law is not reenacted. The constitutionally
authorized ad valorem tax for water management purposes will be
lost. Southwest Florida Water Management District (hereafter
SWFWMD) will continue to exist under Chapter 61-691, 1961 Florida
Laws and Florida Statutes Chapter 373; but without a governing
board and with no express authority to contract, to hire
employees, etc. South Florida Water Management District
(hereafter SFWMD) will also continue but with similar
difficulties. Vast amounts of land and interests in land held in
the name of the WMDs will lie dormant and possibly lost for water
management purposes. Contracts, including employment contracts,
may be unlawfully impaired. The rules of the WMDs will remain in
the Florida Administrative Code with the force and effect of law;
but probably without enforcement; other than by third parties.








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L. M. Buddy Blain
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DISCUSSION:

The legislature intended for the conservation, preservation,
management and control of the waters of the state to be
accomplished by the WMDs. Section 373.016(3), Florida Statutes
(1985). It will be impossible for the WMDs to accomplish these
goals if the provisions affecting WMDs are in fact repealed. Not
only are the governing and basin boards to be repealed but also
almost every express power that would permit a substituted head
to operate the WMDs. A statutorily created entity has only those
powers expressly granted to it by the legislature (e.g., granted
by statute). Division of Family Services v. State, 319 So 2nd
72, 76 (Fla 1 DCA 1975). None of the powers which are to be
repealed are granted anywhere else to the WMDs. Therefore, no
body will be able to operate the WMDs.

As the only alternative, the conservation, preservation,
management and control of the waters of the State will have to be
accomplished by the Department of Environmental Regulation
(hereafter DER). DER, as well as the WMDs, has the authority to
carry out the permitting functions under Parts II, III and IV of
Chapter 373. 1 DER may also exercise any power authorized to be
exercised by a WMD. Sections 373.016(3) and 373.026(7), Florida
Statutes (Supp., 1986). However, these powers conferred on DER
will not alleviate all the undesirable consequences created by


1Florida Statutes Section 373.219 (1985) authorizes
DER to require permits for the consumptive use of water and to
impose reasonable conditions.
DER is given the responsibility for administering Part 3,
Regulation of Wells. To accomplish this, DEr may adopt rules and
regulations and take such other actions as may be necessary to
carry out the provisions of Part 3. See Section 373.309, Florida
Statutes (1985). Part 4, Management and Storage of Surface
Waters, may also be administered by DER. See Sections 373.403 -
373.443 (1985).











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Memorandum of Law
L. M. Buddy Blain
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the simplistic provisions 2 repealing the governing boards and
basin boards.

Below is a discussion of the consequences of the repeal of the
governing boards and basin boards as they relate to rules,
permits, personnel, real estate titles, contracts and agreements,
taxing capability, transfer of records of the WMDs and the status
of SWFWMD and SFWMD.

A. Taxation

Perhaps the least desirable consequence of the repeal of the
governing boards and basing boards of the WMDs is the loss of the
ability to provide ad valorem funding for water management
purposes.

The Florida Constitution of 1968, Article VII, Section 9(b)
(1976), authorizes the levy of ad valorem taxes for water
management purposes. Article VII, Section l(a) prohibits the
state from levying an ad valorem tax. Section 373.503, Florida
Statutes (1985) implements the constitutionally authorized ad
valorem tax for water management purposes. That section provides
that only the WMDs created by Chapter 373 may levy the ad valorem
tax authorized by the Constitution. Any other unit of government
is prevented from levying such ad valorem tax. Section
373.503(2)(a), Florida Statutes (1985).


2Chapter 82-46, Section 1(15)(a)2-3, 1982, Laws of Florida
provides:
The following provisions of the Florida Statutes are repealed on
October 1, 1988, and shall be reviewed by the legislature
pursuant to this section:
(a) Department of Environmental Regulation.--
2. Sections 373.0693 and 373.0695, relating to basin boards
of the water management districts.
3. Sections 373.073-373.103 relating to the governing
boards of the water management district.










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L. M. Buddy Blain
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In order for the WMDs to levy the ad valorem tax granted to them
they must act through some agent or body. With the repeal of the
governing and basin boards there is no such body. As stated
above, DER may exercise any power the WMDs are authorized to
exercise. However, DER is a state agency. The Constitution
prohibits the state from levying an ad valorem tax. Further,
Chapter 373 expressly prevents DER from levying the ad valorem
tax granted to WMDs. This is done by allowing only WMD powers,
to levy the tax. See Section 373.503(2)(a), Florida Statutes
(1985).

Additionally, the court in St. Johns River Water Management
District v Deseret Ranches, 406 So. 2d 1132 (Fla. 5 DCA, 1981)
gave an indication that it would not approve of DER levying the
water management ad valorem tax. In response to an argument that
the WMDs were merely alter egos of DER and levying an
unconstitutional state ad valorem tax the court stated:

It should also be noted that Section 503(2)(a)
Florida Statutes Chapter 373, (1981) is specific
in its admonition that only WMDs may levy the
millage authorized by the Constitution for water
management purposes. Therefore, only the
Districts and not the Department, determine whether,
or in what amounts, such levies will be made.

id, at 1140, footnote 11. This indicates that if DER determines
whether and in what amount the levy will be, it will be viewed as
a State ad valorem tax.

Without the governing boards and basin boards of the WMDs the
constitutionally permitted ad valorem tax for water management
purposes will be lost.

B. Real Estate Titles

Title to real property or interests therein is acquired in the
name of WMD. Section 373.139, Florida Statutes (Supp., 1986).
Repeal of the governing boards of the WMDs will not affect the
status of title to parcels of property owned by the WMDs.
Property will continue to be held in the name of the particular
WMD.

However, no transactions involving those lands could ever take
place without some action by the legislature. This is because
the provisions allowing for the sale (Section 373.093) (1985) and


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Memorandum of Law
L. M. Buddy Blain
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lease of lands or interest in land (Section 373.089) by the
Governing Boards and therefore the WMDs are also to be repealed.3
These interests could lie dormant for years. This raises the
possibility of ownership reverting to the previous owner due to
the land or interest therein not being used for the purpose
acquired.

C. Contracts and Agreements

Contracts and agreements are executed in the name of the WMD.
Therefore, contracts made on behalf of the WMD would
theoretically continue on without interruption even though the
Governing Board that executed those contracts on behalf of the
WMD no longer existed.

The Sundown Act also repeals the power of the governing boards of
the WMD (and so the authority of the WMDs) to contract.4 Though
the WMDs would have no contractual authority, contracts executed
prior to the repeal, by some mechanism, would have to be
completed. There will have to be some action by the legislature
to complete the contracts (e.g., make final payment) in view of
the fact that at that point there will be no person or body with
authority to complete the performance of the contracts.
Otherwise, there may be an impairment of contracts which is
prohibited by Article I Section 10 of the Florida Constitution.
Neither the authority nor the ability to perform a contract may
be impaired during the continuance of a contract. Mittendorf v
Hoy, 151 So 1, 3 (Fla. 1933).

D. Employees

Employees are hired on behalf of and are employed by the WMDs,
not the governing boards. The employment term of most of the
staff is by verbal agreement for an indefinite term. On
October 1, 1988, the provision authorizing the governing board to
hire employees is repealed.5 There are no other provisions

3See Chapter 82-46 Section 1(15) (a)3, 1982, Laws of Florida.
4Authority to contract is set out in Section 373.083(1),
Florida Statutes (1985), which is repealed by Chapter 82-46,
Section 1(15)(a)3.
5Chapter 82-46, Section 1(15)(a)3, 1982, Florida Laws,
repeals, among others, Sections 373.079 and 373.083, Florida
Statutes (1985), which authorizes the governing boards to hire
employees.


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Memorandum of Law
L. M. Buddy Blain
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enabling the WMDs to employ personnel. The WMDs will not be able
to continue the employment of these staff members. This would
undoubtedly lead to many hundreds of unemployment claims.

There would also be no authority to continue the employment of
employees retained by written contract for a time certain as
there would be no authority to retain employees or to contract.

If these contracts are not made subject to the Sundown Act, some
legislative action will be necessary to avoid the impairment of
contracts issue.

E. Rules, Permitting

The governing boards of the WMDs have promulgated rules and
instituted permitting systems to implement Chapter 373 that have
the force and effect of law. Florida Livestock Board v Gladden,
76 So. 2d 291, 293 (Fla. 1954). These rules of the WMDs will
remain in the Florida Administrative Code even if the governing
boards are Sundowned. The various permits issued by the WMDs
will also remain valid until their expiration date. However,
there will be no body to oversee compliance with permit
conditions or the permitting system. Third parties can seek
compliance in furtherance of their own interests.

To repeal these rules action by the Legislature or the Land and
Water Adjudicatory Committee will be necessary. See Section
373.114, Florida Statutes (1985). Repeal would be necessary to
avoid conflicts in the event that DER chose to exercise its own
authority under Parts II, III and IV of Chapter 373 and issue its
own rules and permitting systems.

DER could enforce these rules promulgated by the governing boards
rather than promulgate its own by acting pursuant to Section
373.129, Florida Statutes (1985). That section authorizes DER to
enforce rules and regulations issued pursuant to Chapter 373.

F. Transfer of Records

Section 1 of Chapter 82-46, Laws of Florida, requires that the
executive agency to which a Sundowned body is adjunct store the
records of such body. The WMDs were not created as adjunct to
any executive agency. Therefore, there is no appropriate
mechanism to perform this mandate.




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L. M. Buddy Blain
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The only logical procedure that could be followed as to this
transfer of records would be to follow Florida Statutes Section
119.05 (1985). That Section provides that whoever has the
custody of any public records shall, at the expiration of his
term of office, deliver to the Division of Archives, History and
Records Management of the Department of State, all records,
books, writings, letters and documents kept or received by him in
the transaction of his official business. But, this does not
comply with Chapter 82-46 Section 1, Laws of Florida.

G. Chapter 61-691 and Chapter 25270, 1949

Though the governing boards and basin boards of the WMDs created
by Chapter 373 are repealed by the 1982 Act (to take effect in
1988), there still remained authority for the continuation of the
governing boards of the Southwest Florida Water Management
District and the South Florida Water Management District.
Chapter 61-691 created the Southwest Florida Water Management
District. Chapter 25270, 1949 created the Central and Southern
Florida Flood Control District (CSFFCD). This District's name
was changed to South Florida Water Management District pursuant
to Chapter 77-104 Section 113, Laws of Florida.

Chapter 61-691 provided that SWFWMD was to operate under Chapter
378, Florida Statutes, as amended from time to time. Chapter
378 was ultimately repealed in 1972 by Chapter 72-299 (Chapter
373) so that SWFWMD presently operates under Chapter 373.
Chapter 61-691 created a governing board and basin boards and
provided for ad valorem taxation.

In 1984 the legislature repealed portions of Chapter 61-691 which
created the governing board and authorized creation of the basin
boards. 6 SWFWMD derived authority for its activities from
Chapter 378 and presently from Chapter 373. As discussed in
above sections, the authority to engage in these activities is
repealed by the Sundown Act. Consequently, the governing and
basin boards will not continue under Chapter 61-691. There is no
authority to continue staff, to sue and be sued, etc.

The Central and Southern Florida Flood control District was to
operate pursuant to Chapter 25209. See Chapter 25270, Section 4,
1949 Florida Laws. Chapter 25209 was codified as Chapter 378

6 Chapter 84-341, Section 11, Laws of Florida, repeals among
others, Sections 5, 6, 8, 9 and Subsection (2) of Section 7,
Chapter 61-691, Laws of Florida.


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L. M. Buddy Blain
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Florida Statutes. Chapter 378 was subsequently repealed by
Chapter 72-299, 1972 Florida Laws (Chapter 373). Therefore, any
powers to be exercised by SFWMD (CSFFCD) would have to be found
in its enabling legislation (Chapter 25270) or Chapter 373, as
amended from time to time. Chapter 25270 describes the
boundaries of CSFFCD, authorizes the District to levy ad valorem
taxes and turns over the functions of the Okeechobee Flood
Control District to CSFFCD. All other functional powers were
given to the District via Chapters 378 and 373. As discussed in
above sections almost all express powers given to the WMDs are to
be repealed. The Sundown Act then, leaves SFWMD as merely a
fictional geographic entity with no powers except taxing and no
way to exercise that power.

CONCLUSION:

It is a laudatory effort to review each advisory board,
commission and board of trustees created by the legislature to
ensure that the public purpose is still being served. However,
in the case of the governing boards and basin boards of the WMDs
a simple repeal of the "heads" of these special purpose taxing
units while leaving the body does not serve the public interest.

Many problems are anticipated by the Sundowning, as now
legislated, of the governing boards and basin boards. The rules
of the WMDs will remain in the Florida Administrative Code with
the force and effect of law. Vast amounts of land and interests
in land in the name of WMDs will lie dormant; title to which may
revert to the previous owners after having expended public funds
to acquire them. Contracts, including employment contracts, will
be unlawfully impaired. The constitutionally authorized ad
valorem tax for water management purposes will be lost. SWFWMD
will no longer have its governing or basin boards. The District
will remain without a head or express authority to contract, hire
employees, etc. SFWMD will continue but with the same
difficulties.

Even though DER may exercise many powers authorized to be
exercised by a water management district, most of necessary
powers have been repealed, effective October 1, 1988.

DER lacks the resources necessary to accomplish Chapter 373 by
itself. DER would not have the funding now available to WMDs
through ad valorem taxation to fund water management functions.
The purpose and intent of Chapter 373 will not be carried out.
This will be a disservice to Florida residents who realize the



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Memorandum of Law
L. M. Buddy Blain
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importance of water management. This is evidenced by the voters
in 1976 when they imposed a tax on themselves for water
management purposes.

The repeal of the governing.boards and basin boards of the WMDs
and the powers now vested in them without reenactment next
legislative session will result in allowing the water management
system which Florida now enjoys to be destroyed.



OC2LMLAW.MEM




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