Can a Florida town that was chartered by special act amend its charter by referendum, and will the Department of Revenue treat a re-enacted charter provision as valid?

Plain-English summary

The Town of Fort Myers Beach had held a referendum that removed a section from its charter relating to revenue sharing under section 218.23, Florida Statutes. After the removal, the town faced an open question: could the town re-enact the removed provision by another referendum, and would the Department of Revenue then recognize the town's eligibility for state revenue sharing? The Town Attorney, Dawn Perry-Lehnert, asked the AG's office.

Assistant Attorney General Lagran Saunders said the office had to presume the validity of the prior referendum that repealed the provision. On re-enactment, he cited earlier AG guidance that a charter adopted or readopted after the 1973 Municipal Home Rule Powers Act must be amended under section 166.031, Florida Statutes. Fort Myers Beach and its charter were created by special act in 1995, so that section controlled this proposed amendment. It allows an ordinance or a petition signed by 10 percent of registered electors to submit an amendment to voters, with a majority vote required for adoption. The quoted statute also says its procedures are supplemental to other charter-amendment laws and do not diminish existing municipal powers.

The Department of Revenue question was sent back where it belonged. The office would not opine on whether DOR would, in fact, recognize the town's revenue-sharing eligibility after the re-enactment. That was a determination DOR had to make under the criteria in section 218.23, not a question of the town's authority.

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.

Check the current text of sections 166.031 and 218.23 before using this 2016 letter to plan an amendment or assess revenue-sharing eligibility.

Common questions

Q: Why couldn't the town just keep the special-act charter unchanged?
A: It could have, but it chose to amend it. The town had held a referendum that repealed a section. By the time the question reached the AG, the section was gone and the question was how to put it back, not whether to keep it.

Q: Does it matter that the charter was created by special act, not general law?
A: The opinion says section 166.031 controlled this town's proposed amendment because the town and its charter were created by special act in 1995, after the Municipal Home Rule Powers Act's 1973 enactment. It cites earlier AG opinions on charters adopted or readopted after 1973.

Q: What are the two ways to put a charter amendment on the ballot?
A: Section 166.031(1) provides two paths. First, the governing body of the municipality adopts an ordinance proposing the amendment. Second, electors gather signatures from at least 10 percent of the registered voters as of the last preceding municipal general election, and file a petition. Either way, the proposal goes to the voters at the next general election within the municipality or at a special election called for that purpose. Adoption requires a majority of the electors voting on the amendment.

Q: What kind of charter content is off-limits to amendment by referendum?
A: The quoted subsection (1) excludes the part of a charter describing municipal boundaries from its general referendum procedure. The quoted statute also provides specific procedures for boundary redefinition, abolishing charter departments, and removing language judicially held unconstitutional. The letter does not survey other amendment laws; subsection (3) says section 166.031 is supplemental to them.

Q: Why wouldn't the AG say whether DOR would recognize the re-enacted provision?
A: The letter says whether re-enactment would be recognized for revenue sharing under section 218.23 is a question for the Department of Revenue. The AG's office said it would not comment on another public entity's authority or actions without a request from that entity.

Q: Is there any taxing authority a city can pick up through home rule?
A: The letter's footnote says a municipality derives no taxing authority from home-rule power; such authority comes from general law under Article VII, section 9(a), of the Florida Constitution. It cites City of Tampa v. Birdsong Motors, Inc., Belcher Oil Company v. Dade County, and Contractors and Builders Association of Pinellas County v. City of Dunedin.

Background and statutory framework

The letter describes municipalities' home-rule authority under section 166.021, Florida Statutes, and quotes section 166.031's charter-amendment procedures. Subsection (3) expressly says section 166.031 is "supplemental to the provisions of all other laws relating to the amendment of municipal charters" and is not intended to diminish existing municipal powers.

The letter cites earlier AG opinions for the proposition that a municipal charter adopted or readopted after the 1973 Municipal Home Rule Powers Act must be amended under section 166.031. Fort Myers Beach's 1995 special-act charter fit that description. This conclusion does not mean section 166.031 displaced all other amendment laws.

The letter leaves the town's revenue-sharing eligibility question under section 218.23 to the Department of Revenue. It does not decide whether restoring the charter provision would satisfy that agency.

Citations and references

Statutes:

• § 166.031, Fla. Stat. (amending municipal charters)
• § 166.021, Fla. Stat. (powers of municipalities)
• § 218.23, Fla. Stat. (revenue-sharing eligibility)

Constitutional provision: Art. VIII, § 2(a), Fla. Const.

Cases:

• Edwards v. State, 422 So. 2d 84 (Fla. 2d DCA 1982)
• Pierce v. Division of Retirement, 410 So. 2d 669 (Fla. 2d DCA 1982)
• City of Tampa v. Birdsong Motors, Inc., 261 So. 2d 1 (Fla. 1972)
• Belcher Oil Company v. Dade County, 271 So. 2d 118 (Fla. 1972)
• Contractors and Builders Association of Pinellas County v. City of Dunedin, 329 So. 2d 314 (Fla. 1976)

Prior AG opinions cited: Ops. Att'y Gen. Fla. 75-223 (1975); 84-83 (1984); 97-53 (1997); 2001-15; 80-87 (1980); 93-35 (1993).

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/referenda-charters
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8061

Original opinion text

Ms. Dawn E. Perry-Lehnert

Town Attorney

Town of Fort Myers Beach

2525 Estero Boulevard

Fort Myers Beach, Florida 33931

Dear Ms. Perry-Lehnert:

On behalf of the Town of Fort Myers Beach, you ask whether a provision in the town's charter established by special act may be amended by referendum and whether a charter provision thus removed may be re-enacted by referendum to ensure that the Florida Department of Revenue will recognize the town's eligibility to receive revenue sharing.

In sum, this office must presume the validity of the repeal of a provision in the town's charter by referendum and would advise that the re-enactment of the provision by referendum would be controlled by section 166.031, Florida Statutes. Whether the Florida Department of Revenue will recognize the town's eligibility to receive revenue sharing through re-enactment of the charter provision is a determination to be made by that agency, not this office.

Initially, I would note that this office must presume the validity of actions which have been taken by a public official or entity and will not render a legal opinion on such a matter. In this instance, you state that the town has held a referendum which removed a section from the town's charter relating to revenue sharing pursuant to section 218.23, Florida Statutes. This office, therefore, offers no comment on the validity of the repeal of the charter provision.

A municipality possesses home rule power to enact legislation concerning any subject upon which the state Legislature may act except, among other things, any subject that is expressly prohibited by the Constitution or any subject that is expressly preempted to state or county government by the Constitution or by general law.[1] The term "express," as used in section 166.021, Florida Statutes, has been construed to mean a reference that is distinctly stated and not left to inference.[2]

Municipal charters may be amended pursuant to general or special law.[3] Section 166.031, Florida Statutes, addresses the means by which a municipality may amend its charter:

"(1) The governing body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part describing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purpose.

(2) Upon adoption of an amendment to the charter of a municipality by a majority of the electors voting in a referendum upon such amendment, the governing body of said municipality shall have the amendment incorporated into the charter and shall file the revised charter with the Department of State. All such amendments are effective on the date specified therein or as otherwise provided in the charter.

(3) A municipality may amend its charter pursuant to this section notwithstanding any charter provisions to the contrary. This section shall be supplemental to the provisions of all other laws relating to the amendment of municipal charters and is not intended to diminish any substantive or procedural power vested in any municipality by present law. A municipality may, by ordinance and without referendum, redefine its boundaries to include only those lands previously annexed and shall file said redefinition with the Department of State pursuant to the provisions of subsection (2).

(4) There shall be no restrictions by the municipality on any employee's or employee group's political activity, while not working, in any referendum changing employee rights.

(5) A municipality may, by unanimous vote of the governing body, abolish municipal departments provided for in the municipal charter and amend provisions or language out of the charter which has been judicially construed, either by judgment or by binding legal precedent from a decision of a court of last resort, to be contrary to either the State Constitution or Federal Constitution.

(6) Each municipality shall, by ordinance or charter provision, provide procedures for filling a vacancy in office caused by death, resignation, or removal from office. Such ordinance or charter provision shall also provide procedures for filling a vacancy in candidacy caused by death, withdrawal, or removal from the ballot of a qualified candidate following the end of the qualifying period which leaves fewer than two candidates for an office." (e.s.)

This office has previously stated that a municipal charter adopted or readopted after the enactment of the Municipal Home Rule Powers Act in 1973 must be amended in accordance with section 166.031, Florida Statutes.[4] The Town of Fort Myers Beach and its charter were created by special act in 1995.[5] Accordingly, the town must amend its charter pursuant to section 166.031, Florida Statutes.[6]

Whether re-enactment of the previously deleted section in the town's charter will be recognized by the Florida Department of Revenue for purposes of revenue sharing under section 218.23, Florida Statutes, is a question which would more appropriately be addressed to that agency. This office will not comment on the authority or actions of a public entity absent a request from that entity.[7]

Sincerely,

Lagran Saunders

Assistant Attorney General

LS/tsh

________________

[1] Section 166.021, Fla. Stat.

[2] See Edwards v. State, 422 So. 2d 84, 85 (Fla. 2d DCA 1982); Op. Att'y Gen. Fla. 84-83 (1984). Cf. Pierce v. Division of Retirement, 410 So. 2d 669, 672 (Fla. 2d DCA 1982).

[3] Section 2(a), Art. VIII, Fla. Const.

[4] See Ops. Att'y Gen Fla. 75-223 (1975); 97-53 (1997); and 2001-15 (city may amend its charter to remove requirement that city commissioner reside within the city only if approved by referendum of qualified electors of the municipality).

[5] Chapter 95-494, Laws of Fla.

[6] A municipality, however, derives no taxing authority from its home rule power, as such is authorized by general law pursuant to Art. VII, s. 9(a), Fla. Const. Cf. City of Tampa v. Birdsong Motors, Inc., 261 So. 2d 1 (Fla. 1972); Belcher Oil Company v. Dade County, 271 So. 2d 118 (Fla. 1972); Contractors and Builders Association of Pinellas County v. City of Dunedin, 329 So. 2d 314, 319 n.7 (Fla. 1976); Ops. Att'y Gen. Fla. 80-87 (1980) and 93-35 (1993).

[7] See "Frequently Asked Questions About Attorney General Opinions," s. III, "Persons to Whom Opinions May Be Issued" at http://myfloridalegal.com/pages.nsf/Main/dd177569f8fb0f1a85256cc6007b70ad#persons.