Who decides whether a Florida city candidate meets the residency requirement?

Plain-English summary

The Lakeland City Attorney asked, on behalf of the city commission, who is responsible for verifying residency when a complaint challenges the sworn oath of a city commission candidate. The concern was whether certain candidates had met the one-year residency requirement in the city charter. Assistant Attorney General Joslyn Wilson responded with informal comments that mostly declined the question.

The office explained that the inquiry turned on interpreting the city charter, and that it generally does not issue opinions on questions requiring only an interpretation of local codes, ordinances, or charters rather than state law. To the extent state law was implicated, that would fall under the Florida Election Code, and section 106.23(2), Florida Statutes, authorizes the Division of Elections in the Department of State to give advisory opinions on election-law questions, which is where such questions are usually referred. The comments did offer a general summary of how Florida courts treat residency: it means actual presence in a place plus the intention to remain, a mixed question of law and fact decided case by case. Officials commonly weigh evidence such as a driver license, vehicle and voter registration, declarations of domicile, bank accounts, and tax returns, and significant weight goes to the person's own declaration. The courts also resolve doubts about a candidate's eligibility in favor of eligibility.

Currency note

This opinion was issued in 2009. 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: Did the Attorney General say who has to verify a candidate's residency?
A: No. The office declined that part of the question because it depends on interpreting the city charter, and the office generally does not opine on local charter provisions. It pointed to the Division of Elections for state election-law questions.

Q: Where do Florida election-law questions go?
A: Under section 106.23(2), Florida Statutes, the Division of Elections in the Department of State may issue advisory opinions on provisions or possible violations of Florida election laws, and the Attorney General's office said such questions are generally referred there.

Q: How do Florida courts define residency for a candidate?
A: As actual presence in a place combined with the intention to remain. The office described it as a mixed question of law and fact, decided on the facts of each case, with evidence like a driver license, vehicle and voter registration, declarations of domicile, and tax returns, and significant weight given to the person's own declaration.

Q: If residency is unclear, who wins?
A: The opinion noted that Florida courts resolve doubts or ambiguities about a candidate's eligibility in favor of eligibility, citing the principle that the people have the sovereign right to select their own officers.

Background and statutory framework

The Florida Attorney General's published policy is that opinions are generally not issued on matters requiring only the interpretation of local codes, ordinances, or charters. Because the Lakeland question was framed around the charter's one-year residency requirement, it fell into that category. The office identified the Florida Election Code as the relevant body of state law and noted that section 106.23(2), Florida Statutes, channels election-law advisory questions to the Division of Elections.

For the substantive residency standard, the comments collected longstanding Florida case law. Decisions such as Bloomfield v. City of St. Petersburg Beach and Perez v. Marti hold that legal residence requires both fact (actual presence) and intent (to make the place a permanent home). Ervin v. Collins and Smith v. Crawford supply the tiebreaker rule that doubts about a candidate's qualification are resolved in favor of eligibility, reflecting the people's right to choose their officers.

Citations and references

Statutes:

• s. 106.23(2), Fla. Stat. (Division of Elections advisory opinions)
• s. 102.168, Fla. Stat. (contest of election)

Cases:

• Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364 (Fla. 1955), residence requires fact plus intent
• Perez v. Marti, 770 So. 2d 284 (Fla. 3d DCA 2000), legal residence as fixed abode with intent to make permanent home
• Ervin v. Collins, 85 So. 2d 852 (Fla. 1956), doubts resolved in favor of eligibility
• Smith v. Crawford, 645 So. 2d 513 (Fla. 1st DCA 1994), doubts about candidate qualification resolved for the candidate

Related opinion:

• Op. Att'y Gen. Fla. 73-193 (1973) (residency as a mixed question of law and fact)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-candidates-determining-residency
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8204

Original opinion text

Mr. Timothy J. McCausland
Lakeland City Attorney
228 South Massachusetts Avenue
Lakeland, Florida 33801

Dear Mr. McCausland:

On behalf of the Lakeland City Commission, you ask this office's opinion regarding who is responsible for verifying residency when a complaint questions the sworn oath of a candidate. You state that a question has been raised as to whether some of the candidates for the city commission have met the one-year residency requirement imposed by the city charter.

Your inquiry would appear to involve the interpretation of the city charter. As stated in this office's statement concerning Attorney General Opinions, a copy of which is enclosed, "[o]pinions generally are not issued on questions requiring an interpretation only of local codes, ordinances or charters rather than the provisions of state law." To the extent that state law may be implicated, it would appear that such provisions would be contained in the Florida Election Code.[1] Pursuant to section 106.23(2), Florida Statutes, the Division of Elections in the Department of State is authorized to provide advisory opinions relating to any provisions or possible violations of Florida election laws. As discussed in this office's statement, supra, questions arising under the Florida Election Code are generally referred to the Division of Elections.

Regarding the issue of residency, the Florida courts have stated that residency generally means an actual presence in a place and the intention to remain in that place.[2] As stated by the Florida Supreme Court,[3] the "establishment of one's residence will usually depend on a variety of acts or declarations all of which must be weighed in the particular case as evidence would be weighed upon any other subject." As this office has noted, the question of residency presents a mixed question of law and fact to be settled or determined from the facts of each particular case.[4] As evidence of that intent, public officials will generally consider such things as a driver license, automobile registration, voter registration, declarations of domicile, location of bank account, rent receipts, home mortgage, tax returns, and employment documents. As you note, the courts have recognized that significant weight will be given to an individual's declaration.[5] Moreover, the courts have recognized that if there are doubts or ambiguities regarding eligibility of a candidate, such doubts should generally be resolved in favor of eligibility.[6]

Thank you for contacting the Attorney General's Office.

Sincerely,

Joslyn Wilson
Assistant Attorney General

JW/tsh

Enclosure: Policy Statement

[1] See, e.g., s. 102.168, Fla. Stat.

[2] See, e.g., Bloomfield v. City of St. Petersburg Beach, 82 So. 2d 364 (Fla. 1955) (where good faith intention coupled with an actual removal evidenced by positive overt acts, then the change of residence is accomplished and becomes effective because legal residence consists of the concurrence of both fact and intention); Perez v. Marti, 770 So. 2d 284, 289 (Fla. 3d DCA 2000), review denied, 773 So. 2d 56 (Fla. 2000) (legal residence is place where person has fixed abode with the present intention of making it their permanent home); Keveloh v. Carter, 699 So. 2d 285 (Fla. 5th DCA 1997) (change of residence is accomplished and becomes effective when there is a good-faith intention to establish it, coupled with the actual physical move to a new residence, as evidenced by positive overt acts). And see Williams v. General Insurance Company, 468 So. 2d 1033 (Fla. 3d DCA 1985) (person who is a frequent visitor at a certain address and arranges for mail to be left there does not convert him into a resident of that address).

[3] Bloomfield, supra at 369; Perez, supra (establishment of residence depends on variety of acts or declarations, all of which must be weighed in the particular case).

[4] See, e.g., Op. Att'y Gen. Fla. 73-193 (1973).

[5] See, e.g., Ogden v. Ogden, 33 So. 2d 870, 873 (Fla. 1947) ("best proof of one's domicile is where he says it is"), overruled in part on other grounds, Pawley v. Pawley, 46 So. 2d 464 (Fla. 1950); Frank v. Frank, 75 So. 2d 282, 286 (Fla.1954); Coons v. Coons, 765 So. 2d 167, 172 (Fla. 1st DCA 2000).

[6] See Ervin v. Collins, 85 So. 2d 852 (Fla. 1956) (where there are doubts or ambiguities as to eligibility, they should be resolved in favor of a free expression of the people; it is the sovereign right of the people to select their own officers and the rule is against imposing disqualifications to run recognizing the sovereign right of the people to select their officers); Smith v. Crawford, 645 So. 2d 513, 520 (Fla. 1st DCA 1994) ("the law requires judges to resolve doubts about qualification of a political candidate in favor of the candidate").