Can a Florida county expand a municipal service unit to fund landscaping, signage, and canal maintenance?

Plain-English summary

Monroe County wanted to expand its 1992 Duck Key Security District (originally a municipal service benefit unit funding security services through annual non-ad valorem assessments) to also pay for landscaping, signage, mangrove trimming, and canal maintenance and restoration. The county asked the AG whether § 125.01(1)(q), Florida Statutes, authorized that expansion.

Attorney General Pam Bondi said the answer turns on a label the county itself has to apply: "essential." The statute lists specific services a county may fund through a municipal service taxing unit (MSTU) or municipal service benefit unit (MSBU), then lets the county add "other essential facilities and municipal services." Landscaping, signage, and canal work are not in the enumerated list, so they qualify only if the county commission, on its own legislative findings, determines that they are "essential" in the sense the Florida Supreme Court has used: "essential to the health, morals, safety, and general welfare of the people."

The AG would not make that finding for Monroe County. Whether the proposed services rise to that level is a mixed question of law and fact, and is reserved to the county. The AG did flag two helpful cross-references: § 170.01(1) lists landscaping, signage, canal reconstruction and repair, and waterway navigation improvements as services traditionally fundable by special assessment, and earlier AG opinions and Florida Supreme Court decisions had recognized landscaping and signage as "well-recognized" municipal services in special-district contexts.

Currency note

This opinion was issued in 2016. 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

Q: What is an MSTU and what is an MSBU?
A: Both are vehicles a county uses under § 125.01(1)(q) to pay for services delivered to a defined sub-area of the unincorporated county. An MSTU is funded by ad valorem property taxes inside the unit. An MSBU is funded by special assessments or service charges, also confined to the unit. The same statute allows either form, and Monroe County had used the MSBU form since 1992.

Q: What services can § 125.01(1)(q) cover?
A: The statute lists fire protection, law enforcement, beach erosion control, recreation, water and reclaimed water, streets and sidewalks, street lighting, garbage and trash collection, sewage, drainage, transportation, indigent and mental health care, and a residual catchall for "other essential facilities and municipal services." The catchall is what the AG focused on.

Q: Why couldn't the AG just say yes or no?
A: The catchall hinges on whether the proposed service is "essential," and "essential" requires a factual record about local need and the relationship between the service and the public welfare. The AG is statutorily limited to legal questions; deciding whether canal maintenance is essential to the residents of Duck Key, or whether landscaping reaches the level of necessity the Supreme Court demands, is a determination only the county can make from its own evidence.

Q: What does "essential" mean here?
A: The AG borrowed the test the Florida Supreme Court applies under Article VII, § 3(a), Fla. Const., for what counts as a "municipal or public purpose." It requires a service to be "essential to the health, morals, safety, and general welfare of the people," with "essential" understood as "basic, necessary, or indispensable," reflecting "great need or necessity."

Q: Did the AG say landscaping and canal work could not be essential?
A: No. The AG signaled cautiously that they might qualify, citing § 170.01(1), which already lists landscaping, signage, and canal reconstruction and repair among services traditionally fundable by special assessment, and a Florida Supreme Court footnote in City of Winter Springs v. State, 776 So. 2d 255, calling landscaping and signage "well-recognized" municipal services. But the county still has to make that finding on its record.

Q: What does this mean procedurally for a county trying to expand a unit?
A: The county should make explicit legislative findings, before passing the amending ordinance, that the new services are essential to the welfare of the unit's residents. The findings should reference the relevant facts (the geography, the service gap, the impact on health and safety) and connect them to the statutory standard. Without that record, an expansion of the unit is exposed on judicial review.

Background and statutory framework

§ 125.01(1)(q) is the home-rule basis for sub-county service districts in Florida. The Legislature laid out its preferred reading rule in subsection (3)(b): the statute is to be "liberally construed in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution." Liberal construction does some work in favor of county discretion.

But the catchall phrase "other essential facilities and municipal services" still has to be a meaningful limit, or the whole list collapses. The AG drew that limit from two sources. First, "essential" comes from the Florida Supreme Court's interpretation of Article VII, § 3(a), the constitutional ad valorem exemption for property used for municipal or public purposes. The Court has read "essential" demandingly, in Florida Department of Revenue v. City of Gainesville, 918 So. 2d 250, and again in City of Ft. Pierce v. Treasure Coast Marina (4th DCA 2016). Second, the structure of the list, with "other" connecting to a range of basic services like fire, law enforcement, and waste collection, signals that any added service has to be "comparable" to those.

Monroe County's facts were favorable: § 170.01(1) is itself a long catalog of municipal services fundable by special assessment, and it specifically names landscaping, signage, "reconstruction, repair, renovation" of canals, and "improvements to permit the passage and navigation of watercraft." A 1999 AG opinion and a 2001 AG opinion had already used § 170.01 as a guidepost for what can count as a fundable municipal service. The AG was effectively pointing the county to the statutory and judicial materials that would support a well-founded finding of essentiality, without making that finding for them.

Citations

• § 125.01(1)(q), Fla. Stat. (MSTU/MSBU authority and enumerated services)
• § 125.01(3)(b), Fla. Stat. (liberal-construction clause)
• § 170.01(1), Fla. Stat. (special-assessment list including landscaping, signage, canal restoration)
• § 197.3632, Fla. Stat. (uniform method for collecting non-ad valorem assessments)
• Art. VII, § 3(a), Fla. Const. (municipal/public purpose ad valorem exemption)
• Fla. Dep't of Revenue v. City of Gainesville, 918 So. 2d 250 (Fla. 2005) (defining "essential")
• City of Winter Springs v. State, 776 So. 2d 255 (Fla. 2001) (landscaping/signage as recognized municipal services)
• Donnelly v. Marion County, 851 So. 2d 256 (Fla. 5th DCA 2003) (county powers reasonably implied or incidental to enumerated authorities)
• Op. Att'y Gen. Fla. 99-70 (1999) (canal maintenance as transportation expenditure)
• Op. Att'y Gen. Fla. 01-82 (2001) (assessment for underground transmission lines)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/counties-municipal-service-taxing-or-benefit-unit
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1505

Original opinion text

Mr. Robert B. Shillinger

County Attorney

Office of the County Attorney

1111 12th Street, Suite 408

Key West, Florida 33040

RE: COUNTIES – MUNICIPAL SERVICE TAXING OR BENEFIT UNIT – ESSENTIAL MUNICIPAL SERVICES – whether the county may expand an existing MSTU/MSBU to provide landscaping, signage, canal maintenance, and canal restoration under s. 125.01(1)(q), Fla. Stat.

Dear Mr. Shillinger:

On behalf of Monroe County, you have asked for an opinion on the following question:

Whether Monroe County is authorized pursuant to section 125.01(1)(q), Florida Statutes, to establish a municipal service taxing or benefit unit for landscaping, signage, and canal maintenance and restoration?

In sum:

Section 125.01(1)(q), Florida Statutes, allows a county to create municipal service taxing or benefit units for the provision of enumerated services and "other essential facilities and municipal service[s]." Whether the intended landscaping, signage, canal maintenance, and canal restoration are essential municipal services is a mixed question of law and fact that the County, rather than this office, must determine.

You state that Monroe County has a municipal service benefit unit that was established in 1992 to provide security services for residential areas of Duck Key by means of annual non-ad valorem assessments.[1] You would like to expand the Duck Key Security District to provide landscaping, signage, and canal maintenance and restoration, within which you include property beautification, lawn trimming, planting and landscaping, installation and repair of signage in the residential areas and rights-of-way, mangrove trimming along canals and waterways, and other canal maintenance and restoration projects to improve navigability and water quality. You indicate that the County understands that if these new services are authorized, the County must amend the ordinance used to create the Duck Key Security District, which is limited to the provision of security services.

Section 125.01(1)(q), Florida Statutes, authorizes the county's legislative and governing body – the board of county commissioners – to establish a municipal service taxing unit ("MSTU") and/or a municipal service benefit unit ("MSBU") to provide the kinds of municipal services enumerated in the statute. Specifically, the statute provides that county government may:

"(q) Establish, and subsequently merge or abolish those created hereunder, municipal service taxing or benefit units for any part or all of the unincorporated area of the county, within which may be provided fire protection; law enforcement; beach erosion control; recreation service and facilities; water; alternative water supplies, including, but not limited to, reclaimed water and water from aquifer storage and recovery and desalination systems; streets; sidewalks; street lighting; garbage and trash collection and disposal; waste and sewage collection and disposal; drainage; transportation; indigent health care services; mental health care services; and other essential facilities and municipal services from funds derived from service charges, special assessments, or taxes within such unit only."

Because the services specifically enumerated in paragraph (q) do not include those that you propose, namely landscaping, signage, canal maintenance, and canal restoration, these would only be allowed if the county commission determines that they qualify as "other essential facilities and municipal services."

As you acknowledge, section 125.01, Florida Statutes, does not define "other essential facilities and municipal services." Use of the term "other" makes clear that the services a county seeks to provide through an MSTU or MSBU must be comparable to the services previously enumerated therein. "The powers enumerated in section 125.01 are not all inclusive, and a county's authority includes that which is 'reasonably implied or incidental to carrying out [its] enumerated powers,' limited only by general or special law."[2] In section 125.01(3)(b), Florida Statutes, the Legislature stated that the provisions of the statute must be "liberally construed in order to effectively carry out the purpose of this section and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution."

The term "essential" applies both to "facilities and municipal services."[3] Absent any statutory definition, it is useful to consider how the term has been employed elsewhere in the municipal-services context.[4] The Florida Supreme Court has specifically addressed the meaning of the term "essential" as it is used when defining "municipal or public purpose" under Article VII, section 3(a) of the Florida Constitution. In order to qualify for an exemption from ad valorem taxation under that provision,[5] an activity must be shown to be "essential to the health, morals, safety, and general welfare of the people within the municipality."[6] (e.s.) The court quoted three dictionary definitions of "essential" – basic, necessary, or indispensable – and concluded that "inherent in the word essential is the concept of great need or necessity."[7]

Accordingly, it is reasonable to conclude that the term "essential" in section 125.01(q), Florida Statutes, indicates that there must be a great need or necessity for the non-enumerated municipal services that are sought to be provided to district taxpayers within an MSTU or MSBU.

This office has looked to section 170.01, Florida Statutes, which constitutes a lengthy listing of municipal services that may be appropriately funded by special assessment, to determine whether a county might provide a particular service to certain property by special assessment.[8] Landscaping and signage are specifically included as municipal services under section 170.01(1), Florida Statutes, as are "reconstruction, repair, renovation" of canals, and "improvements to permit the passage and navigation of watercraft."[9]

The determination of whether the provision of landscaping, signage, and canal maintenance and restoration constitute services essential to the people of Monroe County's proposed MSTU or MSBU presents a mixed question of law and fact which is thus beyond the purview of this office.[10]

Accordingly, it is my opinion that under section 125.01(1)(q), Florida Statutes, which allows a county to provide essential municipal services to municipal service taxing or benefit units, the County must decide the mixed question of law and fact as to whether the intended landscaping, signage, canal maintenance, and canal restoration are essential municipal services.

Sincerely,

Pam Bondi

Attorney General

PB/ebg

[1] Monroe County collects the assessment on each property within the Security District pursuant to the uniform method for collection of non-ad valorem assessments set forth in s. 197.3632, Fla. Stat.

[2] Donnelly v. Marion County, 851 So. 2d 256, 261 (Fla. 5th DCA 2003) (quoting Sockol v. Kimmins Recycling Corp., 729 So. 2d 998, 1001 [Fla. 4th DCA 1999]).

[3] See, e.g., State v. Huggins, 802 So. 2d 276, 277-78 (Fla. 2001) (in the phrase, "occupied structure or dwelling," in a sentencing statute, the adjective "occupied" modified both "structure" and "dwelling"). "Phrases constructed like the phrase at issue … are commonly construed to mean that the adjective modifies subsequent nouns, for example, 'qualified man or woman' and 'governmental fine or penalty' mean 'qualified man or qualified woman' and 'governmental fine or governmental penalty,' respectively." Id. at 278.

[4] See, e.g., Miele v. Prudential-Bache Sec., Inc., 656 So. 2d 470, 472 (Fla. 1995) ("[T]he context in which a term is used may be referred to in ascertaining the meaning of that term."); Sneed v. State, 736 So. 2d 1274, 1276 (Fla. 4th DCA 1999) (the meaning of a statutory term should be consistent with "context and ordinary usage," and "the surrounding body of law into which the provision must be integrated").

[5] Art. VII, s. 3(a), Fla. Const., provides, in part: "All property owned by a municipality and used exclusively by it for municipal or public purposes shall be exempt from taxation."

[6] Fla. Dep't of Revenue v. City of Gainesville, 918 So. 2d 250, 264 (Fla. 2005) (concluding that a statute requiring local governments to pay ad valorem taxes on their telecommunications services did not facially conflict with art. VII, s. 3(a), because such services were not necessarily essential to the health, morals, safety, and general welfare of the people within such local government). Accord City of Ft. Pierce v. Treasure Coast Marina, 2016 WL 1660600 (Fla. 4th DCA 2016). See also State v. City of Jacksonville, 50 So. 2d 532, 535 (Fla. 1951) ("Though there was a time when a municipal purpose was restricted to police protection or such enterprises as were strictly governmental that concept has been very much expanded and a municipal purpose may now comprehend all activities essential to the health, morals, protection and welfare of the municipality.").

[7] Fla. Dep't of Revenue, 918 So. 2d at 264.

[8] See Op. Att'y Gen. Fla. 01-82 (2001) (concluding that the county is authorized to levy a special assessment for replacing above-ground with underground electric transmission lines, so long as supported by appropriate findings).

[9] See City of Winter Springs v. State, 776 So. 2d 255, 257 n.2 (Fla. 2001) (landscaping and signage within a special district were "well-recognized" as municipal services, see, e.g., s. 170.01(1), Fla. Stat., and were the proper subjects of a special assessment bond when supported by legislative findings of the city).

[10] See Op. Att'y Gen. Fla. 99-70 (1999) (observing that the municipality must make the final determination as to whether maintenance of its canal system is a valid transportation expenditure under s. 336.025).