Can a Florida county skip a performance audit if a proposed sales surtax would last longer than the one it replaces?

Subject

Audit exemption to extend discretionary sales surtax

Plain-English summary

Florida law required a county proposing a discretionary sales surtax referendum to submit the proposal to the Office of Program Policy Analysis and Government Accountability, which would retain a CPA to conduct a performance audit. The Legislature excepted referenda proposing "the same discretionary surtax" already in place. Charlotte County had been collecting a 1% local-option surtax and asked whether matching the old rate was enough, or whether the proposed duration also had to match.

The AG concluded that "same" required matching in "all material respects," and duration was material when the prior surtax included a duration. Charlotte County’s 2014 referendum had approved a six-year term (January 1, 2015 through December 31, 2020). If a new referendum proposed a longer term, it would not propose "the same" tax and the audit exemption would not apply.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is a discretionary sales surtax?

A local-option sales tax authorized by section 212.055, Florida Statutes. This opinion concerned the local government infrastructure surtax under subsection (2).

Why is a performance audit required?

The opinion said section 212.055(11) required the county to submit its proposed surtax to the Office of Program Policy Analysis and Government Accountability, which would retain a certified public accountant to conduct a performance audit of the program associated with the surtax.

What was the audit exemption?

§ 212.055(11)(d) provided that the audit requirement did not apply to a referendum held to adopt "the same discretionary surtax" in place during the month of December immediately before the referendum.

What did "same" mean in the statute?

The statute did not define "same." The AG turned to the ordinary meaning, citing Black's Law Dictionary's definition ("identical or equal; resembling in every relevant respect") and the American Heritage Dictionary's ("similar in kind, quality, quantity, or degree" or "conforming in every detail").

Was duration material?

The AG concluded yes, duration was material when included in the prior surtax. The court's reasoning in Florida Department of State v. Slough (Fla. 2008) supported that view: the Florida Supreme Court there held that a ballot summary's omission of a one-year amendment duration was fatally misleading, treating duration as material to voters.

Did the statute always require duration?

No. Section 212.055 did not require any of the discretionary surtaxes to include a duration. But it required that an enacting ordinance specify "the maximum length of time the surtax may be imposed, if any." If the prior surtax included one, that duration became part of what made it "the same."

What would a longer proposed term mean for Charlotte County?

A referendum proposing a term longer than the six years approved in 2014 would not qualify for the "same surtax" exemption. The county would have to submit the proposed surtax to OPPAGA, which would retain a CPA for the performance audit before the referendum.

Background and statutory framework

Section 212.055 of the Florida Statutes authorized counties to impose various discretionary sales surtaxes, including the local government infrastructure surtax in subsection (2). Subsection (11) (formerly (10), redesignated by Chapter 2019-64) required performance audits before any referendum to "adopt a discretionary sales surtax." Subsection (11)(d) exempted a referendum to adopt "the same discretionary surtax" already in place during the prior December.

Charlotte County had imposed a 1% local-option surtax in 1998 and extended it multiple times. The 2014 referendum approved an extension at 1% for the period January 1, 2015 through December 31, 2020.

The AG's reasoning relied on three points:

1. The statute used "the same discretionary surtax." The AG read "same" by its ordinary meaning.

2. Black's Law Dictionary and American Heritage Dictionary defined "same" to require identity or correspondence in relevant or material respects.

3. Florida Supreme Court precedent (Slough) treated duration as material to voters.

The opinion concluded that a referendum proposing to extend the duration of an existing surtax was not "the same" surtax, and the audit requirement applied.

Citations

• § 212.055(2), Fla. Stat. (2019) (local government infrastructure surtax)
• § 212.055(11), Fla. Stat. (performance-audit requirement)
• § 212.055(11)(d), Fla. Stat. (exemption for "the same" surtax)
• Chapter 2019-64, Laws of Florida (renumbering subsection (10) to (11))
• Florida Department of State v. Slough, 992 So. 2d 142 (Fla. 2008)
• Florida Dept. of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954 (Fla. 2005)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/audit-exemption-to-extend-discretionary-sales-surtax
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1473

Original opinion text

Ms. Janette S. Knowlton

County Attorney for Charlotte County

18500 Murdock Circle, Suite 573

Port Charlotte, Florida 33948-1068

RE: DISCRETIONARY SALES SURTAX-PERFORMANCE AUDIT EXEMPTION-whether the duration of a discretionary sales surtax must be the same as the immediately preceding surtax to be exempt from the requirement of a new performance audit. S. 212.055(11)(d), Fla. Stat.

Dear Ms. Knowlton:

This office has received your request for an Attorney General opinion on behalf of the Charlotte County Board of County Commissioners asking essentially the following question regarding the local government infrastructure surtax authorized by section 212.055(2), Florida Statutes (2019):

Does section 212.055(11)(d), Florida Statutes, which exempts a county from obtaining a performance audit when voters are being asked to adopt “the same discretionary surtax” as the surtax being replaced, require only the surtax rate to be the same, or does it also require the duration of the surtax as described in the enacting ordinance and ballot question to be the same?[[1] The Legislature enacted Chapter 2019-64, Laws of Florida, in the 2019 legislative session, adding a new section 212.055(10), and redesignating the former subsection (10) as a new subsection (11), with some changes to the provision. Former subsection (10)(d), now (11)(d), is unchanged.

1]

In sum:

To be exempt from the requirement of a performance audit pursuant to section 212.055(11)(d), Florida Statutes, the proposed discretionary sales surtax being voted upon must be the same as the immediately preceding surtax in all material respects, which would include the duration of the tax if duration was included in the preceding surtax.

You state that Charlotte County enacted a one percent discretionary sales surtax in 1998 pursuant to section 212.055(2), Florida Statutes, and has extended it multiple times. In 2014, voters approved a new surtax at one percent to apply through 2020 in the following ballot measure:

Title: Extension of the one percent (1%) local option sales tax from January 1, 2015, to December 31, 2020.

Question: Should the one percent local option sales tax be extended for six (6) years from January 1, 2015, to December 31, 2020, with the proceeds to be used for infrastructure as defined by law, including school security and technology improvements; road improvements; and public safety and service buildings; and libraries, parks and recreational facilities.

Section 212.055(11) provides that when a referendum is held to “adopt a discretionary sales surtax under this section,” the county must submit a copy of its proposed surtax to the Office of Program Policy Analysis and Government Accountability, which in turn must retain a certified public accountant to conduct a performance audit of the program associated with the surtax. No audit is required, however, when the following condition is met:

(d) This subsection does not apply to a referendum held to adopt the same discretionary surtax that was in place during the month of December immediately before the date of the referendum. (Emphasis added.)

Therefore, a performance audit is required before a surtax referendum unless the same surtax is being adopted as was previously in place. The phrase “the same discretionary surtax that was in place,” is not defined in chapter 212, and thus the words must be given their plain and ordinary meaning.[[2] Black’s Law Dictionary (11th ed. 2019), defines “same” as: “Identical or equal; resembling in every relevant respect.”[[3] See also American Heritage Dictionary of the English Language (5th ed. 2018) (“[s]imilar in kind, quality, quantity, or degree”; “[c]onforming in every detail”).3] Although section 212.055, Florida Statutes does not require any of the discretionary sales surtaxes authorized therein to include a duration, the statute does require that an enactment specify “the maximum length of time the surtax may be imposed, if any.” You point out that the County included both the surtax rate and its duration in its ballot question.

The duration of time during which taxpayers will pay a discretionary surtax is a material and relevant aspect of the surtax to be approved or rejected by voters. For example, in Florida Department of State v. Slough, 992 So. 2d 142 (Fla. 2008), the Florida Supreme [4]Court found the ballot title and summary for a proposed constitutional amendment addressing certain ad valorem taxation issues to be fatally misleading because they omitted the one-year duration of the amendment. This omission could lead voters to believe that the surtax would be “permanent and continuous” rather than limited in time. Thus, a referendum proposing to extend the length of time taxpayers must pay a discretionary surtax would not be “the same” as the existing surtax which may expire sooner.

It is therefore my opinion that a local government is exempt from obtaining a performance audit pursuant to section 212.055(11)(d), Florida Statutes, when the discretionary sales surtax being voted upon is the same in all material respects as the prior surtax, which would encompass duration of the tax if such is included in the prior surtax.

Sincerely,

Ashley Moody

Attorney General

AM/tebg

[1] The Legislature enacted Chapter 2019-64, Laws of Florida, in the 2019 legislative session, adding a new section 212.055(10), and redesignating the former subsection (10) as a new subsection (11), with some changes to the provision. Former subsection (10)(d), now (11)(d), is unchanged.

[2] See, e.g., Florida Dept. of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 961 (Fla. 2005).

[3] See also American Heritage Dictionary of the English Language (5th ed. 2018) (“[s]imilar in kind, quality, quantity, or degree”; “[c]onforming in every detail”).