Title: Opinion File 74-57 thru 74-62
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Permanent Link: http://ufdc.ufl.edu/WL00003387/00001
 Material Information
Title: Opinion File 74-57 thru 74-62
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 74-57 thru 74-62
General Note: Box 14, Folder 4 ( Opinion File 1974 - 1975 - 1974-1975 ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003387
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


1 ATTOkNEYS AT LAW s
i uS sN arsr P. 0o, Bx 0 s .
TAMPA, fLORIOA sOa*
TEuiWPHfNe SIl-04

March 11, 1974


STo Mr. Clint Bohultz


Dear Clint s

fnlolwed herevith is a wasorand4m of the law concerning the
question of whether or not the District can eI11 gasoline
to its employees, board u lmber and consultants during the
energy arises when they get to Brookaville and are unable
to acme and go for the meetings or other work of the DistriCt.
5 If you have any questions concerning this, please let us
hear from you.
Sincerely,



Mgg/rb yron Q. Gibbons
S enal


- __~-_~_L~L-LLL--~YL~_*l~














MEMO


TO: Myron Gibbons

FROM: Rob Williams






Attached is my research memorandum regarding
the question of whether the District can sell gas to
its employees, consultants, etc. I have also done some
preliminary research on the sale tax aspects of selling
gas but in view of my conclusions and also of the fact
that the gasoline crisis is now substantially reduced,
I didn't know whether you wanted me to spend any further
time on this question in preparing a formal memorandum
on that question.





1 0*rN 759





MEMORANDUM


TO: Myron Gibbons

FROM: Rob Williams

RE: SWFWMD Sale of gasoline to employees, etc, #10-0001

DATE: March 7, 1974 .
0


QUESTION NO. 1:


Can the District sell gasoline to its employees,
board members, and consultants during the energy crisis
When they get to Brooksville and are unable to come and go
for the meetings or other work of the District?


DISCUSSION:


On the Federal level, I can find no regulations
prohibiting the resale of fuel allocated to a public entity
under existing allotments. Moreover, I have discussed the
above question, in a hypothetical manner, with the Federal
Energy Office in Jacksonville.and have been advised that
there is no prohibition of gasoline sales of the type pro-
posed by the District at the present time.

Although federal regulations do not presently
prohibit the proposed sale by the District, the authority
of the District to sell gasoline to its employees, etc.,
under state law, is, in my opinion, doubtful. Since the
nature of the District is somewhat unique in that it has
characteristics of both private and public bodies, the
legal principles applicable to the District on this ques-
f tion are not explicit. It is clear, however, that the
District is not a private corporation, but rather is a
public corporation and thus the rules relating to private
corporations would not apply. Accordingly, it seems clear
that the law of municipal corporations is the appropriate
body of law applicable to the above question and, indeed,
one authority has stated that:

Taxing Districts, such as water
supply districts [etc.], while
not technically municipal corpor-
ations, are at least quasi ones,
and, as to their powers, are
Governed by the rules applicable
to municipal corporations. 56
Am. Jur. 2d Municipal Corporations
13.












The threshold issue raised by the above question
is whether the District, as a public entity, may sell gas-
oline to private citizens, albeit employees, under any
circumstances. As a general rule, it seems well established
that a public entity, such as a municipal corporation, cannot
be constitutionally authorized by the legislature to engage
in the business of selling and distributing to its inhabitants,
at reasonable rates and without discrimination the conveniences
or even the necessities of life, if the business is of such a
nature that it could be and ordinarily was carried on by
private individuals without the aid of any franchise from
the state. 56 Am. Jur. 2d Municipal Corporations, etc., 212.
In fact, at least one court has followed this rule even in
times of scarcity of supply. See, White Oil and Refinning
Company v. Gunderson, 205 NW 614 (S.D. 1925)

On the other hand, the more favorable rule is
that where conditions arise such that the supply of fuel
r is so small and the difficulty of obtaining it so great,
that persons desiring it would be unable to supply them-
selves through private enterprise, then, since it is
conceivable that agencies of government might be able to
obtain fuel when citizens generally could not, the govern-
ment may constitute itself an agent for the relief of the
community and, consequently, the money expended for the
purchase and sale of gas would be for a "public use". 56
Am. Jur. 2d Municipal Corporations 212.

On the basis of the above general propositions,
therefore, it seems reasonable to conclude that in times
of emergency a public entity could be authorized by the
legislature to sell fuel to its employees where the public
benefit is clear. See, Laughlin v. City of Portland, 90
A. 2d 318 (Me. 1914).

In the instant case, however, it is clear that
there is no express legislative authorization for the
District to sell gasoline to its employees. A further
question is therefore presented as to whether assuming
a genuine emergency, express authority is, in fact, neces-
^ sary to empower the sale of gasoline by the District, as
a public entity. On this issue, it is held that whether
a public entity may engage in business of a private nature
is purely a legislative function. 23 Fla. Jur. Municipal
Corporations, 72. Moreover, in the absence of organic
prohibitions, the relevant Florida decisions indicate that
express authorization by statute is necessary before a
public entity can engage in an activity tantamount to
private business. e.g., City of Lakeland v. Amos, 143 So.
744 (Fla. 1932). This conclusion is further supported by
the fact that all decisions found in other jurisdictions
allowing emergency sales of gasoline to private citizens
predicated such sales on express statutory authority from
Sthe legislature.











Moreover, the above conclusion seems particularly
valid in view of the other, more general propositions of law
which are firmly established in Florida. First, it is uniform-
ly held that where a reasonable doubt exists as to whether a
public entity, such as a municipal corporation, has the power
to perform a certain act, then that doubt should be resolved
against the exercise of that power. See generally, 23 Fla.
Jur. Municipal Corporations, 64. Second, the use of public
funds may only be for a "public purpose". In this regard,
the public purpose must have a primary, as distinguished
from incidental, benefit to the public, which primary benefit
must be clearly shown. See, e.g., O'Neill v. Burns, 198 So.
2d 1 (Fla. 1967). In addition, the Florida Supreme Court has
held that municipal corporations are deemed to be within the
broader category of "public corporations", the other sub-
category being public quasi corporations, such as road districts,
school districts, etc. Forbes Pioneer Boar Line v. Board of
Com'rs of Everglades Drainage Dist., 83 So. 346 (Fla. 1919).
Moreover, this latter category is stated as having "only a
" portion of the powers of corporations", while the former
has full fledged powers. Id. Finally, the Forbes case further
holds that a public quasi corporation is a governmental agency
of the state for definite purposes and has only such authority
"as is delegated to it by law". Forbes supra.

In view of the above general principles, and the
clear absence of general or special statutory authority author-
izing the District to sell gas to its employees or even to
conduct activities of that general nature, it is my opinion
that the District probably does not have the power to conduct
the proposed sale of gasoline to its employees, board members,
and consultants. Certainly, if such activity were to be chal-
lenged in court I think it is reasonable to conclude that a
court of law would hold that the District was acting without
authority of law and, thus, improperly.

On the other hand, Florida Statutes 378.151, does
grant to the District discretionary power to adopt reasonable
rules and regulations to implement the District's purpose.
Thus, in view of the case law pertaining to the sale of
fuel by municipal corporations, under emergency conditions,
^ it also seems reasonable that if a true emergency does exist,
then the implementation of emergency programs, by the District
regarding the sale of fuel to employees, under the discretionary
provisions of F.S. 378.151, might pass judicial scrutiny.
However, in order for such an emergency rule to obtain even
threshold validity, it would be necessary for the District to
adopt an appropriate resolution to the effect that an emergency
did exist and that it would be impossible for the District to
carry out its obligations under law, due to the shortage of
fuel, unless the proposed sale of gasoline program to employees
was implemented. Such a resolution would certainly establish
a prima facie showing of emergency conditions and assuming
that a real emergency does in fact exist, any later doubt would
probably be resolved in favor of that determination. See, e.g.,
Morrison v. Farnell, 126 Fla. 385, 171 So. 528 (Fla. 1936)







r`






CONCLUSION:


Because of the unique nature of the problem presented,
there is no authority which offers a conclusive answer to the
instant question; accordingly, the question can only be resolved
through the analysis and application of general principles of
law to the specific facts and issues presented. Therefore,
based upon the above analysis, it is my opinion that the District's
power to sell gasoline to its employees, board members, and
consultants is doubtful and from a legal standpoint feel that
our opinion should be in the negative.

From a practical standpoint, however, it seems that
if the District were to resolve that a true emergency does
exist ardthereafter were to implement the proposed plan, it
f' would be unlikely that such an act would be challenged by a
private citizen in Court.




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