Can a Florida city council move its municipal election day from a March date set by an old special law to November to align with state general elections, by ordinance and without holding a referendum?

Subject

Municipal election -- align with state general election

Plain-English summary

The City of Destin had been holding its municipal elections on the second Tuesday in March because of a 1992 special law (Chapter 92-270) that set uniform March election dates for seven Okaloosa County municipalities. By 2019, the city wanted to move its elections to November to align with state general elections. Its city attorneys asked whether the move could be done by ordinance without a referendum. A separate question came from counsel for the Okaloosa County Supervisor of Elections, who flagged a possible conflict between the 1992 special law and the later general statutes.

The AG concluded the city could move the election by ordinance without a referendum. The Legislature's 2008 amendment to § 101.75(3) was the key. That subsection authorized a municipality "by ordinance" to move "any municipal election to a date concurrent with any statewide or countywide election," and it did so "[n]otwithstanding any provision of local law or municipal charter." That "notwithstanding" language overrode the older 1992 special law. Sections 100.3605(2) and 166.021(4) provided complementary authority for the move and clarified that no referendum 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 was Chapter 92-270?

A 1992 special law that set uniform filing and election dates for seven municipalities in Okaloosa County: Cinco Bayou, Crestview, Destin, Fort Walton Beach, Laurel Hill, Mary Esther, and Shalimar. It set "[a]ny election relating to a municipal officer" for the "second Tuesday in March."

What is a "special law" versus a "general law" in Florida?

A "special law" or "local law" is one "relating to, or designed to operate only in, a specifically indicated part of the state." A general law applies statewide. The Florida Supreme Court has long held that, when there is genuine conflict, a special law generally controls over a later general law unless the general law shows clear intent to supersede it.

What did the 2008 amendment add?

The Legislature added the "[n]otwithstanding any provision of local law or municipal charter" clause to § 101.75(3). That language gave general municipal-election-date authority priority over older local laws and charter provisions. The AG treated this as the kind of "intent to supersede" the local law that City of St. Petersburg v. Siebold and similar cases require.

Was a referendum required?

No. Both § 100.3605(2) and § 101.75(3) authorize the change by ordinance. Section 166.021(4)'s referendum requirement is qualified by an exception "for the selection of election dates and qualifying periods for candidates."

What did Florida AG Op. 2013-05 say?

That earlier opinion took the same position: a change in election dates permitted by sections 100.3605 and 101.75(3) can be accomplished by ordinance without referendum. The 2019 opinion built on that foundation.

Did Destin's existing charter language matter?

Destin's 1990 charter Section 3.03 specified the state general election day, which the 1992 special law had effectively preempted. By 2019, the chain of authority restored Destin's ability to choose alignment with the state general election.

What about the seven cities' uniformity goal in Chapter 92-270?

The 1992 act had aimed for uniform dates among the seven Okaloosa cities. The 2008 amendment ended that uniformity by authorizing each municipality to align with state or county elections individually. The Legislature's choice to override the local law was clear from the "notwithstanding" clause.

Could a Florida city move to a different date that did not match a state or county election?

Section 101.75(3) was specifically about alignment "with any statewide or countywide election." A move to some other date would be governed by § 100.3605(2) and might be subject to the referendum requirement of § 166.021(4) for changes that "affect the terms of elected officers and the manner of their election." Different rules apply for different kinds of changes.

Background and statutory framework

Two relevant 2019 statutes

§ 100.3605, Fla. Stat.
- (1): The Florida Election Code (chapters 97-106) governs municipal elections in the absence of a conflicting special act, charter, or ordinance. Local provisions cannot exempt a municipality from Florida Election Code rules that expressly apply to municipalities.
- (2): "The governing body of a municipality may, by ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes."

§ 101.75(3), Fla. Stat.
"Notwithstanding any provision of local law or municipal charter, the governing body of a municipality may, by ordinance, move the date of any municipal election to a date concurrent with any statewide or countywide election."

§ 166.021(4), Fla. Stat. (municipal home rule):
"[N]othing in this act shall be construed to permit any changes in a special law or municipal charter which affect . . . the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, . . . without approval by referendum of the electors as provided in s. 166.031."

The "except for the selection of election dates" language is the critical exception that lets election-date changes happen by ordinance without a referendum.

Conflict resolution between special and general laws

Florida courts apply two rules. First, where a special law and general law conflict and cannot be harmonized, the special law generally controls. Second, that rule yields if the later general law shows intent to supersede the local law. City of St. Petersburg v. Siebold; State ex rel. D'Alemberte v. Sanders.

The "notwithstanding any provision of local law or municipal charter" language in § 101.75(3) is the kind of plain statement of intent to override that triggers exception two. Combined with the broad municipal-home-rule authority in § 166.021(4), the result is that the 2008 amendment displaced the 1992 special law for purposes of election-date alignment.

Application to Destin

The AG concluded the City Council could pass an ordinance moving the election to November to align with the state general election, without holding a referendum. The 1992 special law that had set the second Tuesday in March no longer controlled.

Citations

• § 100.3605(1), (2), Fla. Stat. (election code application; date changes by ordinance)
• § 101.75(3), Fla. Stat. (notwithstanding clause; alignment with statewide/countywide election)
• § 166.021(4), Fla. Stat. (municipal home rule; election-date exception)
• Ch. 92-270, Laws of Fla. (1992 special law for seven Okaloosa cities)
• Ch. 95-178, Laws of Fla. (creating § 100.3605)
• Ch. 2008-95, Laws of Fla., § 23 (creating the notwithstanding clause in § 101.75(3))
• Florida Atty. Gen. Op. 2013-05
• Masone v. City of Aventura, 147 So. 3d 492 (Fla. 2014)
• Thomas v. State, 614 So. 2d 468 (Fla. 1993)
• City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924 (Fla. 2013)
• City of St. Petersburg v. Siebold, 48 So. 2d 291 (Fla. 1950)
• State ex rel. D'Alemberte v. Sanders, 85 So. 333 (Fla. 1920)
• Venice HMA, LLC v. Sarasota Cty., 228 So. 3d 76 (Fla. 2017)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/municipal-election-align-with-state-general-election
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1470

Original opinion text

Kyle S. Bauman
Kimberly R. Kopp
Anchors Smith Grimsley
Romano Kopp Law, P.A.
909 Mar Walt Dr Ste 1014
PO Box 445
Fort Walton Beach, FL 32547-6757
Destin, FL 32541-0445

Dear Mr. Bauman and Ms. Kopp:

As the City Attorneys for the City of Destin ("City"), you have requested an opinion regarding substantially the following question:

Does the City Council of the City of Destin possess the legal authority to move its election day, by ordinance and without referendum, from a date in March of even-numbered years to a date on the first Tuesday following the first Monday in November of even-numbered years to align the election of the City's municipal officers with the state general election?

In sum:

Pursuant to sections 100.3605(2), 101.75(3), and 166.021(4), Florida Statutes (2019), the Destin City Council is authorized to align the election of the City's municipal officers, by ordinance and without referendum, with the state general election.

Background

Section 3.03 of the Destin City Charter, adopted in 1990, provides that the "regular election of the mayor and city council members shall be held on the day of the State General Election in even-numbered years." In 1992, however, the Legislature passed a special law, chapter 92-270, Laws of Florida, that provided for uniform filing and election dates for seven municipalities located in Okaloosa County, Florida, including the City of Destin. In pertinent part, it establishes that "[a]ny election relating to a municipal officer" in those municipalities is set for the "second Tuesday in March." Because "municipal ordinances must yield to state statutes," the City's irreconcilable charter provision was effectively preempted by the controlling requirement of chapter 92-270 at that time. The City, consistent with chapter 92-270, has since held its municipal elections on the second Tuesday in March. In 2006, the City of Destin adopted Ordinance Number 06-03-CC, codified at Section 9.04 of the City of Destin Code of Ordinances, which provides "Elections for members of the city council and for the office of mayor shall be held on the second Tuesday in March in each even numbered year."

The City now proposes to align its municipal elections by ordinance to be concurrent with the state general election, and asserts that, pursuant to sections 166.021(4), Florida Statutes, and 100.3605(2), Florida Statutes, it may do so. Counsel for the Okaloosa County Supervisor of Elections has expressed a concern about the potential conflict between these generally applicable statutes and chapter 92-270.

Analysis

In 1995, the Legislature enacted chapter 95-178, Laws of Florida, which created section 100.3605, Florida Statutes, which provides:

(1) The Florida Election Code, chapters 97-106, shall govern the conduct of a municipality's election in the absence of an applicable special act, charter, or ordinance provision. No charter or ordinance provision shall be adopted which conflicts with or exempts a municipality from any provision in the Florida Election Code that expressly applies to municipalities.

(2) The governing body of a municipality may, by ordinance, change the dates for qualifying and for the election of members of the governing body of the municipality and provide for the orderly transition of office resulting from such date changes.

Thus, absent a conflicting special act, charter or ordinance provision, the Florida Election Code governs, and a municipality may by ordinance change its election date for members of its governing body.

Chapter 95-178 also amended section 166.021(4)—which defines municipal powers—to read in pertinent part:

[N]othing in this act shall be construed to permit any changes in a special law or municipal charter which affect . . . the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, . . . without approval by referendum of the electors as provided in s. 166.031 . . . . (Emphasis added.)

Then, in section 23 of chapter 2008-95, Laws of Florida, the Legislature amended section 101.75(3), Florida Statutes, which now provides:

(3) Notwithstanding any provision of local law or municipal charter, the governing body of a municipality may, by ordinance, move the date of any municipal election to a date concurrent with any statewide or countywide election. The dates for qualifying for the election moved by the passage of such ordinance shall be specifically provided for in the ordinance. The term of office for any elected municipal official shall commence as provided by the relevant municipal charter or ordinance.

Thus, this office has opined that a change in election dates permitted by sections 100.3605 and 101.75(3) may be accomplished by ordinance without referendum. Fla. Atty. Gen. Op. 2013-05.

The question raised by the City, and by the counsel for the Okaloosa County Supervisor of Elections, is whether the previously enacted special law, chapter 92-270, precludes the application of these later enacted statutes of general applicability to the municipalities that fall within the scope of the special law.

Where there exists a genuine conflict which cannot be harmonized between a special law and general law, a special law or local law will control over a later general law unless provisions of the general law show an intent to supersede the local law and are not merely inconsistent with it. Such an intent is plain from the language of section 101.75(3), Florida Statutes, adopted in 2008, which permits municipalities to, "by ordinance, move the date of any municipal election to a date concurrent with any statewide or countywide election", "[n]otwithstanding any provision of local law or municipal charter." If chapter 92-270 is a "local law," then the City is authorized, by section 101.75(3), to align the election of the City's municipal officers with the state general election.

A "local law" is one "relating to, or designed to operate only in, a specifically indicated part of the state." Because chapter 92-270 operates only in seven municipalities in Okaloosa County, it is a "local law." Because the City is authorized to move the date of its municipal election notwithstanding this local law, sections 100.3605, 101.75(3) and 166.021(4) all permit the City to do so by ordinance and without referendum.

Accordingly, I am of the opinion that, pursuant to sections 100.3605(2), 101.75(3), and 166.021(4), the Destin City Council is authorized to align the election of the City's municipal officers with the state general election by ordinance and without referendum.

Sincerely,

Ashley Moody
Attorney General

AM/tlm