Can a Florida fire and EMS district raise its ad valorem millage above the special-act-authorized 1 mill cap by board resolution after a one-time referendum?
Plain-English summary
The Key Largo Fire Rescue and Emergency Medical Services District was created by special act, Chapter 2005-329, Laws of Florida. The special act authorizes the District's board to levy an ad valorem tax up to 1 mill on its own (after the original referendum that established that 1-mill rate). To go above 1 mill (and up to the chapter 191 cap of 3.75 mills), the special act requires majority voter approval in a referendum.
Counsel for the District asked whether, after one referendum approving an above-1-mill rate, the board could thereafter set the millage by resolution every year (so long as it stayed at or below the rate already approved). The District's theory was: a one-and-done referendum should suffice, just like the original referendum sufficed for the 1-mill rate.
The AG said no. Chapter 2005-329 expressly authorizes annual board-resolution levies only "so long as the rate of taxation does not exceed 1 mill." The same provision requires referendum approval to set any rate above 1 mill. There's no language in the special act parallel to subsection 6(3) that would let the board set higher rates by resolution after one prior referendum approval.
Section 191.009(1) of the general law confirms the same answer. It says any ad valorem tax that exceeds the amount authorized by prior special act, general law, or county ordinance approved by referendum must be approved by a new referendum. The flip side, in the same provision, says no further referenda are needed for ad valorem taxes already authorized by referendum (here, the 1-mill rate). The District wanted to read the second sentence to cover any rate previously approved by any referendum; the AG read it to cover only the rate authorized by the special act, namely 1 mill.
The contrast with § 191.009(2), which deals with non-ad valorem assessments and expressly allows boards to set the rate annually without a new referendum unless they want to increase, drives the point home. The Legislature knew how to allow once-and-done referendum approval. It chose not to in subsection (1) for ad valorem taxes.
Currency note
This opinion was issued in 2018. 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 did the District's special act actually authorize?
A: Chapter 2005-329, § 5(2) authorized the board to levy ad valorem taxes "in an amount that does not exceed the limit provided in chapter 191." Section 6(1) authorized an annual ad valorem tax "in an amount not to exceed 1 mill." Subsections 6(2) and 6(3) said the initial 1-mill levy required majority voter approval, and after that the board could set the rate annually by resolution "so long as the rate of taxation shall not exceed 1 mill." Section 6(3) added that any rate above 1 mill required referendum approval.
Q: Could the District ever go above 1 mill?
A: Yes, but only if a majority of electors voted for the higher rate in a referendum. The cap was 3.75 mills under chapter 191, and only a higher amount specifically authorized by law and approved by referendum could exceed that.
Q: What did § 191.009(1) add to the analysis?
A: It said any ad valorem tax exceeding the amount previously authorized "by special act, general law of local application, or county ordinance approved by referendum" required a new referendum. The District tried to argue this only required referendum the first time a higher rate was used. The AG read it to require a referendum every year the rate stayed above the special-act amount.
Q: How was § 191.009(2) (non-ad valorem assessments) different?
A: Subsection (2) expressly allowed boards to set non-ad valorem assessment rates annually without a new referendum, except when increasing the assessment by certain amounts above the rate previously approved. That different drafting choice (an explicit "no annual referendum needed" rule) showed the Legislature could have included such language in subsection (1) for ad valorem taxes if it had wanted to.
Q: What was the practical effect on the District?
A: The District had to put the question on the ballot every year that it wanted to levy above 1 mill, even if that rate had been approved in a prior year. This is more burdensome than the alternative the District was advocating, and meant the District couldn't lock in a higher rate through one referendum.
Background and statutory framework
Florida special districts, including independent special fire control districts, derive their taxing authority from a combination of their enabling special acts and chapter 191, Florida Statutes. The Legislature passed chapter 191 to provide a uniform statewide framework for these districts; § 191.004 declares the chapter supersedes special-act provisions to the extent of any conflict.
Chapter 2005-329 created the Key Largo Fire Rescue and Emergency Medical Services District. It set up a tiered taxing structure: a 1-mill ad valorem cap with annual board-resolution renewal once a baseline referendum approved that rate, and a higher cap (up to 3.75 mills) only with continued referendum approval. That tiered structure is consistent with § 191.009(1), which contemplates referendum-approved levels as the baseline and requires fresh approval for higher rates.
The contrast between subsections (1) and (2) of § 191.009 is the key textual move in the opinion. Subsection (1) (ad valorem) says new referendum required to exceed previously authorized amounts; subsection (2) (non-ad valorem) says assessments can be set annually without referendum unless they go up by specified amounts. The Legislature plainly knew how to write a rolling-approval rule. By not writing one in subsection (1), it required referendum for each year above the special-act-authorized millage cap.
Citations and references
Statutes and laws:
- § 191.009, Fla. Stat. (Independent special fire control districts; ad valorem and non-ad valorem assessments)
- Ch. 191, Fla. Stat. (Independent Special Fire Control Districts)
- Ch. 2005-329, Laws of Fla. (Key Largo Fire Rescue and EMS District charter)
Prior AG opinions:
- Op. Att'y Gen. Fla. 99-30 (1999)
Source
- Landing page: https://www.myfloridalegal.com/ag-opinions/renewal-of-ad-valorem-tax-by-referendum-or-resolution
- Original PDF: https://www.myfloridalegal.com/print/pdf/node/1491
Original opinion text
Mr. Matthew S. Francis
Counsel for the Key Largo Fire Rescue and
Emergency Medical Services District
Vernis & Bowling of the Florida Keys, P.A.
81990 Overseas Highway, 3rd floor
Islamorada, Florida 33036
RE: AD VALOREM TAXATION – FIRE AND EMERGENCY DISTRICT – SPECIAL ACT – RESOLUTION – whether a fire rescue and emergency medical services district may levy an ad valorem tax at a rate above the expressly authorized 1 mill by resolution rather than referendum. Ch. 2005-329, Laws of Fla. (2005); § 191.009(1), Fla. Stat. (2017).
Dear Mr. Francis:
We have received your request for an opinion from the Attorney General asking the following question:
May the Key Largo Fire Rescue and Emergency Medical Services District, after holding a referendum to raise the millage rate above 1 mill, thereafter annually fix the millage rate at or below such new millage rate by resolution of the district board without further approval by the electors?
In sum:
Pursuant to chapter 2005-329, section 6, Laws of Florida, and section 191.009(1), Florida Statutes, any year in which the Key Largo Fire Rescue and Emergency Medical Services District wants to levy an ad valorem tax that exceeds the 1 mill authorized in chapter 2005-329, such tax must be approved in a referendum rather than by board resolution.
The Key Largo Fire Rescue and Emergency Medical Services District was created by chapter 2005-329, Laws of Florida. Under subsection 5(2), the District's Board of Commissioners is authorized to annually levy ad valorem taxes against taxable property within the district in an amount that does not exceed the limit provided in chapter 191, Florida Statutes. That limit is 3.75 mills, unless a higher amount has been authorized by law and approved by referendum.[1]
Subsection 6(1) specifically authorizes the board to levy an annual ad valorem tax in an amount not to exceed 1 mill. Under subsections 6(2) and (3), a majority of the electors in the district must approve the initial levy of such tax by referendum, but each year thereafter, the board may fix the rate of taxation by resolution so long as the rate does not exceed 1 mill.[2] If the board seeks a millage rate above 1 mill but below the 3.75 mill limit, it must obtain approval by a majority of electors in a referendum.[3]
The preceding language of the special act expressly authorizes renewal by resolution only when the rate of taxation is 1 mill or below. There is no such provision with regard to rates above 1 mill. The same result follows from application of section 191.009, Florida Statutes, a general law that addresses the levy of ad valorem taxes in independent special fire control districts in subsection (1):
"The levy of ad valorem taxes pursuant to this section must be approved by referendum called by the board when the proposed levy of ad valorem taxes exceeds the amount authorized by prior special act, general law of local application, or county ordinance approved by referendum. Nothing in this act shall require a referendum on the levy of ad valorem taxes in an amount previously authorized by special act, general law of local application, or county ordinance approved by referendum."
As applied to the Key Largo Fire Rescue and Emergency Medical Services District, the first sentence quoted above requires a referendum when the board seeks an ad valorem tax at a rate above the 1 mill authorized by the special act that created the district. Under the second sentence, no further referenda are necessary for an ad valorem tax of 1 mill or less when there has been a referendum approving such rate which was authorized in the special act, chapter 2005-329.[4]
Had the Legislature intended to allow the fire district to levy by resolution an ad valorem tax at a rate greater than 1 mill, so long as such rate was initially approved in a referendum, it would have included a provision expressing such intent in chapter 2005-329, Laws of Florida.
Accordingly, it is my opinion that under the current facts and law, the Key Largo Fire Rescue and Emergency Medical Services District must obtain approval by referendum every year in which it seeks to assess an ad valorem tax above 1 mill.
Sincerely,
Pam Bondi
Attorney General
PB/tebg
[1] Section 191.009(1), Fla. Stat.
[2] "Upon the approval of a majority of the electors voting at the initial election or at an election called by the board, the rate of taxation shall thereafter be fixed annually by resolution of the board without further approval by the electors, provided the rate of taxation shall not exceed 1 mill." Section 6(3), Ch. 2005-329, Laws of Fla.
[3] "The board shall have the authority to increase the millage rate above 1 mill only if a majority of the electors voting in a referendum election approve the increased millage rate in an amount not to exceed the limit provided in chapter 191, Florida Statutes." Id.
[4] In contrast, in subsection 191.009(2), dealing with non-ad valorem assessments, no annual referendum is required unless a fire control district wishes to increase the assessment by a certain amount (as formulated in the provision) above the rate set the previous year or the rate previously set by special act or county ordinance, "whichever is more recent." See Op. Att'y Gen. Fla. 99-30 (1999). The Legislature chose not to include such language in subsection 191.009(1) dealing with ad valorem assessments.