Can a Florida city use local infrastructure surtax money to buy emergency generators and electrical upgrades for its municipal complex?

Plain-English summary

The City of Largo's attorney asked AG Pam Bondi whether the city could spend its voter-approved local-option infrastructure surtax (under section 212.055(2)) on emergency generators, uninterruptible power supply (UPS) units, and the electrical system and site work needed to install them at the Municipal Complex. The Attorney General said yes.

The Largo Municipal Complex housed city hall, the police department, the 911 communications center, and the emergency operations center. The city had five backup generators, three of them long past their useful life, and three UPS units, all expired and no longer supported by the manufacturer. An engineering firm recommended buying two new 750-kilowatt generators with an advanced distribution system, plus new UPS units (including a unit dedicated to the 911 center), plus a comprehensive electrical-system upgrade. The new equipment would be installed as fixtures in the complex.

The Attorney General walked through the statutory definition of "infrastructure" under section 212.055(2)(d)1, which covered any "fixed capital expenditure or fixed capital outlay associated with the construction, reconstruction, or improvement of public facilities" with a useful life of at least five years. Because Chapter 212 did not itself define "fixed capital expenditure" or "fixed capital outlay," the AG drew on the budget-related definitions in section 216.011 and the ordinary dictionary sense of "fixed capital," then applied them to the city's facts.

The generators, UPS units, and associated electrical and site upgrades were long-term fixed assets that would materially improve the functional use of a public facility and would have a five-plus-year useful life. They therefore counted as infrastructure under section 212.055(2), and surtax proceeds could be used to acquire them.

What the opinion meant at the time for other cities

At the time of issuance, the opinion was a useful template for any Florida municipality wanting to use infrastructure surtax money on long-lived backup-power equipment for public facilities. The analytical steps the AG followed (start with the section 212.055(2)(d)1 definition, then pull section 216.011 definitions when the operative statute did not define a term, then apply five-year life and material improvement tests) were the same approach the AG had used in other surtax opinions involving particular categories of equipment and infrastructure.

The opinion did not address operational or fuel costs, software-only purchases, or assets with useful lives under five years. It also did not address the separate question of whether a particular ballot question had been worded broadly enough to cover the purchase, that is a local-counsel question that depends on the specific surtax ordinance and ballot language.

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 was the local-option infrastructure surtax?
A: Section 212.055(2), Florida Statutes, allowed counties (and, after voter approval, certain cities) to levy a discretionary sales surtax of 0.5% or 1%, to be used to "finance, plan, and construct infrastructure," among other limited uses. The surtax had to be authorized by ordinance and approved by voters in a referendum.

Q: What did the statute mean by "infrastructure"?
A: Section 212.055(2)(d)1.a defined infrastructure to include "any fixed capital expenditure or fixed capital outlay associated with the construction, reconstruction, or improvement of public facilities that have a life expectancy of 5 or more years and any related land acquisition, land improvement, design, and engineering costs."

Q: Why did the AG borrow definitions from chapter 216?
A: Chapter 212 did not define "fixed capital expenditure" or "fixed capital outlay," but chapter 216 (state planning and budgeting) did. The AG invoked the canon, supported by Goldstein v. Acme Concrete Corp., that when the Legislature uses identical phrases in different chapters of the statutes, the terms are presumed to mean the same thing.

Q: What was the five-year test?
A: To count as infrastructure under section 212.055(2), the asset had to have a useful life of five years or more. The AG accepted the city's engineering description (industrial-scale generators, UPS units, hardened electrical components) as satisfying that test.

Q: What about routine repairs or replacements?
A: The statutory definition reached "additions, replacements, major repairs, and renovations to real property which materially extend its useful life or materially improve or change its functional use." Routine maintenance that did not materially extend useful life or change function would not have qualified.

Q: Did this opinion clear surtax-funded operating costs (fuel, software subscriptions, staffing)?
A: No. The opinion was about capital acquisitions. Operating expenses generally fell outside the infrastructure definition.

Q: Did the AG require a separate ballot question for emergency generators?
A: The opinion did not address ballot wording. Whether a particular city's surtax referendum was broad enough to cover this specific purchase was a local-counsel question that turned on the ballot text and the implementing ordinance.

Background and statutory framework

The local government infrastructure surtax in section 212.055(2) was one of several discretionary sales surtaxes Florida had authorized over the years. The infrastructure surtax was narrowly tied to long-lived public capital investment, by design, to keep one-time surtax revenue from being spent on recurring operations. The five-year useful life test and the "fixed capital outlay" phrasing both pushed the same direction.

The AG had issued several earlier opinions on what did and did not count as "infrastructure" under section 212.055(2). Common patterns: equipment integrated into a public facility (HVAC, electrical systems, security systems) tended to qualify; standalone vehicles and software-only purchases were more contested; pure operating expenses did not qualify. This opinion fit the integrated-equipment pattern. The new generators and UPS units would be installed as fixtures and would materially improve the functional use of the Municipal Complex, so they were a comfortable fit within infrastructure.

The opinion cited two Florida Supreme Court cases for canons of construction, but neither was a substantive ruling on infrastructure surtax: Goldstein for the identical-terms canon, and Southeastern Fisheries for the plain-meaning canon. Both are general statutory-interpretation authorities; the AG's analysis turned on the language of sections 212.055 and 216.011 themselves and on the city's factual recitation.

Citations and references

Statutes:

• Section 212.055(2), Fla. Stat. (Local government infrastructure surtax)
• Section 216.011, Fla. Stat. (Definitions; planning and budgeting)

Cases:

• Goldstein v. Acme Concrete Corp., 103 So. 2d 202 (Fla. 1958), identical-terms canon of construction
• Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984), plain-meaning canon

Prior AG opinions referenced:

• Op. Att'y Gen. Fla. 83-32 (1983), prior application of the identical-terms canon

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/infrastructure-surtax-emergency-generators
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1521

Original opinion text

Mr. Alan S. Zimmet, B.C.S.

City Attorney

City of Largo

Post Office Box 296

Largo, Florida 33779-0296

RE: INFRASTRUCTURE SURTAX – EMERGENCY GENERATORS – MUNICIPALITY – using infrastructure surtax to fund purchase of emergency generators, power source units, and associated site improvements and upgrades, as fixed capital expenditure or outlay. s. 212.055(2), Fla. Stat.

Dear Mr. Zimmet:

As City Attorney for the City of Largo, you have asked for my opinion on the following question:

May the City of Largo use proceeds from the local government infrastructure surtax collected pursuant to section 212.055(2), Florida Statutes, to fund the purchase of emergency generators and Uninterruptible Power Source units for the city's Municipal Complex, and to fund site improvements and upgrades necessary to activate and utilize this equipment?

In sum:

Emergency generators and Uninterruptible Power Source units, and the site improvements and electrical system upgrades necessary to ensure proper functioning of such equipment within the Municipal Complex, constitute infrastructure under section 212.055(2), Florida Statutes, which may be acquired using funds from the Largo infrastructure surtax.

Section 212.055(2), Florida Statutes, authorizes local governments to enact an ordinance for approval by electors that would levy a discretionary sales surtax of .5 percent or 1 percent, to be used "to finance, plan, and construct infrastructure[,]" among other uses, as stated in subsection (2)(d)1. The statute defines "infrastructure" in subsection (2)(d)1. as:

"a. Any fixed capital expenditure or fixed capital outlay associated with the construction, reconstruction, or improvement of public facilities that have a life expectancy of 5 or more years and any related land acquisition, land improvement, design, and engineering costs."

Although "fixed capital expenditure" and "fixed capital outlay" are not defined in Chapter 212, Florida Statutes, they are defined in Chapter 216, Florida Statutes, which relates to state planning and budgeting. When the Legislature uses the identical words or phrases in different chapters of the Florida Statutes, we may assume that it intended the terms to mean the same thing.[1]

Under section 216.011, Florida Statutes:

"(m) 'Expenditure' means the creation or incurring of a legal obligation to disburse money.

• • *

(p) 'Fixed capital outlay' means the appropriation category used to fund real property (land, buildings, including appurtenances, fixtures and fixed equipment, structures, etc.), including additions, replacements, major repairs, and renovations to real property which materially extend its useful life or materially improve or change its functional use and including furniture and equipment necessary to furnish and operate a new or improved facility, when appropriated by the Legislature in the fixed capital outlay appropriation category."

It may also be useful to consider the common understanding and definitions of the component parts of the phrases, "fixed capital expenditure" and "fixed capital outlay."[2] The term "fixed capital" refers to "money invested in fixed assets, such as land and machinery," and "fixed asset" refers more specifically to a "long-term" item that is owned and has value, such as "equipment, land, or an industrial plant."[3] In order to satisfy the requirements of section 212.055(2), Florida Statutes, the asset must have a life expectancy of five years or longer.

Based upon the provisions and definitions quoted above, section 212.055(2), Florida Statutes, permits a local government to seek voter approval of a sales surtax that will be used to replace, perform major repair of, or renovate long-term fixed assets in a public facility, such as machinery and equipment, in order to materially extend the property's useful life or improve its functional use. This includes the acquisition of equipment necessary to implement the improvements.

You state in your memorandum of law that the city's main offices are housed in its Municipal Complex, including the city hall, the Largo Police Department, the 911 Communications Center, and the Emergency Operations Center. There are currently five generators used for backup emergency power within the Municipal Complex, three of which have far exceeded their useful life expectancy. The remaining two are smaller and capable of providing only limited resources and are within the typical 20-year generator replacement cycle. In addition, there are three Uninterruptible Power Source units, all of which have reached the end of their useful lives and are no longer supported by the manufacturer. Finally, the electrical system itself has never been comprehensively updated, and its components that manage the emergency power supply are not compatible with power generated by new technology. You assert that substantial upgrades to the electrical system are necessary before new emergency power equipment can be utilized.

The condition of these power sources led the city to engage an engineering firm to evaluate the emergency backup power system and make any necessary recommendations for improvements to meet current and future needs of the Municipal Complex. You were informed that the city should purchase two 750 KW power generators that use internal combustion engines and include an advanced distribution system. There would also be new Uninterrupted Power Supply units to provide battery backup power for the electrical system in the Municipal Complex, with a separate unit dedicated to the 911 Communications Center. The equipment would be incorporated as fixtures in the Municipal Complex property and buildings. This new equipment would allow the complex to operate in an emergency situation with little or no interruption in its power supply and would have the ability to specifically divert energy to critical operations during an emergency or disaster while still conserving power.

Based on the condition of the power sources that you describe, replacement of the outdated fixed machinery and equipment for generating and managing emergency backup power will materially improve the functional use of the Municipal Complex. The machinery and equipment purchased will have a life expectancy of five or more years. Associated site improvements and electrical system upgrades are equally necessary to implement the emergency machinery and equipment replacements. Accordingly, the items described properly constitute infrastructure under section 212.055(2), Florida Statutes, and it is my opinion that proceeds from the local government infrastructure surtax would properly be used to purchase the machinery, equipment, and associated improvements for the Municipal Complex.

Sincerely,

Pam Bondi

Attorney General

PB/tebg

[1] Goldstein v. Acme Concrete Corp., 103 So. 2d 202, 204 (Fla. 1958). And see Op. Att'y Gen. Fla. 83-32 (1983).

[2] When a statute does not specifically define words of common usage, such words must be given their plain and ordinary meaning. See Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984).

[3] Black's Law Dictionary, "fixed capital" & "fixed asset" (within definition of "capital asset"), http://web2.westlaw.com (10th ed. 2014). These dictionary definitions taken from the same source relied upon in prior Attorney General Opinions addressing this subject have changed slightly.