Title: Opinion File 73-68 thru 73-69
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Permanent Link: http://ufdc.ufl.edu/WL00003346/00001
 Material Information
Title: Opinion File 73-68 thru 73-69
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collection - Opinion File 73-68 thru 73-69
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 31
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003346
Volume ID: VID00001
Source Institution: Levin College of Law, 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






Oct-ober 5, 1973 KEY Wk.-,:*. _,--


TO: LMB
FR: TEC
RE: Do basin boards of the SWFWMD possess Tne power to sue or
be sued, enter into contracts, etc? (or) A pursuit of
that fabled unicorn legislative intent.


Section 373.083 F.S. (1972 Supp.) authorizes the governing
board of the various water management districts, in subsection (1),
to enter into contracts, sue and be sued, and appoint or remove
employees. There is no comparable authorization for basin boards
in any of the statutes dealing with water management in the State.
Indeed, nowhere in those materials can provision be found which
delegates to the basin boards any "general" powers.

The legislature d% however specifically enumerate certain
duties which are to the responsibility of the various basins.
(Section 12 (11) of Ch. 73-190, Laws of Florida) These duties have
remained substantially unchanged since the SWFWMD was first formed.
(Section 6 of Ch. 61-691 Laws of Florida) When a statute imposes
a duty, it generally also confers by implication the power and
reasonable means necessary for its performance (30 Fla. Jur.,
Statutes, 83.) It becomes necessary therefore to look to the
entire statute to determine whether possession of the power to
enter into contracts, sue and be sued, and appoint or remove
employees is reasonably necessary to enable the basins to carry
out their duties. (See Re Warner's Estate (1948), 160 Fla. 460,
35 So. 2d 296)

If one ignores the whole statutory scheme and focusesaolely on
the duties assigned to the basin boards, one could reasonably infer
that the basins indeed possess at least the power to enter into
contracts. How else could the basin obtain the professional
expertise necessary to meet their obligations? Presumably, the
basins would also have the right to enforce their contracts by
suit. We have thus drawn an inference from an inference certainly
a weak method of statutory construction.

A necessary corollary to the implication of the foregoing
powers would seem to be also that the legislature intended for the
various basins to have some modicum of independence, separate from
the District. It is at this point that the foregoing chain of
reasoning begins to break down completely.






7 3-69




The express provisions of the statutes give the District the
power and authorization to:

(1) enter into contracts, sue or be sued, appoint and
remove employees 373.083 (1) F.S. (1972 Supp.)
(2) issue orders to implement or enforce the state water
plan 373.083 (2) F.S. (1972 Supp.)
(3) establish district works 373.087 F.S. (1972 Supp.)
(4) issue permits for construction projects which involve
artificial recharge of water into underground formations -
373.106 (1) F.S. (1972 Supp.)
(5) do any act necessary to replinish the ground water in
the District 373.106 (2) F.S. (1972 Supp.)
(6) promulgate regulations 373.113 F.S. (1972 Supp.)
(7) acquire the fee title to realty 373.136 (2) F.S.
(1972 Supp.)
(8) declare existence of water shortages 373.246 (2)
F.S. (1972 Supp.)
(9) apportion, ration or limit the use of water in the
District 373.246 (7) F.S. (1972 Supp.)

The list of powers could go on considerably longer, but I
believe the point is made when one realizes that the basins are
expressly empowered to do none of the foregoing. The basins were
not created by the legislature, they were created by the District.
( 5 of Ch. 61-691 Laws of Florida, 12 (5) of Ch. 73-190 Laws
of Florida) The District is thtirely responsible for the water
plan within its boundaries. The District is the representative
of the State and is the body through which the State responds to
the needs of the public. The basins, in my opinion, are not
authorized to act for the State within their boundaries. They
are responsible not to the public but to the District.

The posture of the basin boards is in effect W 9 m--.e a
a dependent subdivision of the District. While it appears evident
that the basins are responsible for providing localized "input" for
the District; it is equally evident that the District and not the
basins is the decision making body. It would be inconsistent and
in my opinion unreasonable to imply on behalf of the basins the
existence of a power to "decide" questions independently from the
District.


TEC/gh


I




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