If a Florida county wants to extend its 1% local sales surtax with a longer duration than the prior version, can it skip the costly performance audit that ordinarily comes before a surtax referendum?

Subject

Audit exemption to extend discretionary sales surtax

Plain-English summary

Florida law required counties to commission a performance audit by an outside CPA before holding a referendum on a new discretionary sales surtax. The Legislature created an exception for referenda that proposed "the same discretionary surtax" already in place. Charlotte County had been collecting a 1% local-option sales surtax for years and wanted to ask voters to extend it again, but at the same time wanted to lengthen its duration beyond the prior six-year window. The County Attorney asked whether "same" meant only the same rate, or whether 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. Because Charlotte County's prior 2014 referendum had explicitly approved the surtax for a six-year window (January 1, 2015 through December 31, 2020), a new referendum that extended the same rate for a longer period was not "the same" tax. The audit exemption did not apply, and a performance audit was required.

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, that counties may impose on top of the state sales tax. The "infrastructure surtax" under § 212.055(2) is one variation; revenue is restricted to specified categories like roads, public buildings, and parks.

Why is a performance audit required?

When the Legislature added the audit requirement, it directed the Office of Program Policy Analysis and Government Accountability to retain a CPA to audit the program tied to the surtax before voters consider it. This was meant to give voters independent information about how the prior surtax revenue had been used.

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 did this mean for Charlotte County's planned referendum?

Because Charlotte County's 2014 referendum included an explicit six-year window, any new referendum that extended the same rate for longer than six years would not be "the same" surtax. The County would have needed to commission a performance audit before holding such a referendum.

Does this apply to a referendum extending an open-ended surtax?

The opinion suggested that if the prior surtax had no duration in its enacting language, a referendum on the same rate without duration would be "the same." Counties whose prior referenda specified durations were the ones bound by this rule.

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 audit exemption was framed narrowly.

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)
• Ch. 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
• Original PDF: 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?

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.

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. Black's Law Dictionary (11th ed. 2019), defines "same" as: "Identical or equal; resembling in every relevant respect." 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").

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 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