Can a Florida special district buy land with a boat ramp, and must the ramps be open to the public if it does?

Plain-English summary

The Lake Asbury Municipal Services District, a special district in Clay County whose job is maintaining several lakes and dams, asked Attorney General Pam Bondi two questions. Could it buy parcels of land with boat ramps that would give both the district and district lot owners access to the lakes? And if it did, would it have to let the general public use those ramps?

On the first question, the AG said yes, with a condition: the district could acquire boat-ramp land and spend its funds on it if the district's governing board determined the purchase primarily serves the district's purpose of maintaining the lakes and dams. The district's enabling act (Chapter 86-392, Laws of Florida) lets it buy property needed to carry out that purpose, and the district itself uses boat ramps to reach the lakes for weed control, dam inspection, and water-quality testing. But the board, not the AG, had to make that public-purpose determination. On the second question, the AG flagged a constitutional limit. Article VII, section 10 of the Florida Constitution bars government from using public funds to benefit private parties. If the district bought and maintained ramps but limited their use to district lot owners, that could look like spending public money to give a privilege to select private individuals, which the constitution forbids. Incidental use by the general public, on the other hand, raises no such concern, because no specific private parties are singled out for benefit. So the district was authorized to buy the property to serve district purposes and incidentally provide public access, but restricting the ramps to lot owners was constitutionally risky.

Currency note

This opinion was issued in 2012. 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.

The public-purpose limit in Article VII, section 10 is a durable feature of Florida constitutional law, and the cases the AG relied on were well established even in 2012. Still, the district's specific powers come from its enabling act, which the Legislature can amend, so confirm the current law before acting on this analysis.

Common questions

Q: Can a Florida special district buy land and build or acquire boat ramps?
A: Only if doing so carries out the district's statutory purpose. The AG explained a special district has only the powers expressly granted by its enabling law or necessarily implied to carry those out. Here, because the district maintains lakes and dams and uses ramps to reach the water, acquiring ramp land could fit, but the district's board had to make that determination.

Q: Does buying a boat ramp with public money mean the public must be allowed to use it?
A: The AG's concern was the reverse: restricting the ramps to district lot owners could violate Article VII, section 10 by using public funds to benefit select private individuals. Allowing incidental general-public use avoids that problem. The opinion did not require unlimited public access, but warned against limiting access to lot owners only.

Q: What is the public-purpose requirement in Article VII, section 10?
A: It bars the state and its subdivisions from using their taxing power or pledging public credit to aid a private person or entity. An expenditure is allowed if it primarily serves a public purpose, even if private parties also benefit incidentally. A purely private benefit dressed up as a broad public purpose does not pass.

Q: Who decides whether buying the land serves a public purpose?
A: The district's governing board. The AG repeatedly stressed that this fact-bound public-purpose determination is for the board to make and cannot be delegated to the Attorney General's office.

Background and statutory framework

Special districts in Florida are creatures of statute with limited powers. Under Halifax Drainage District of Volusia County v. State, 185 So. 123 (Fla. 1938), such an entity has only the powers expressly granted or necessarily implied, and any reasonable doubt about a power is resolved against its exercise. The Lake Asbury district's authority comes from Chapter 86-392, Laws of Florida (1986), which lets it acquire property and build capital projects to maintain the named lakes and dams.

The public-funds analysis rests on Article VII, section 10 of the Florida Constitution. Bannon v. Port of Palm Beach District, 246 So. 2d 737 (Fla. 1971), describes the provision's purpose: protecting public resources from being exploited for private ventures. The key precedent was Northern Palm Beach County Water Control District v. State, 604 So. 2d 440 (Fla. 1992), where the Florida Supreme Court upheld district-financed road improvements because the district retained ownership and the Legislature had declared a public purpose, while cautioning that limited public access raises a question whether the public purpose is only incidental to a private one. The Court there quoted Orange County Industrial Development Authority v. State, 427 So. 2d 174 (Fla. 1983): a broad general public purpose will not sustain a project that in actual use is purely private.

Citations and references

Constitution and session laws:

• Art. VII, § 10, Fla. Const. (no public funds or credit to aid private parties)
• Ch. 86-392, Laws of Fla. (1986) (Lake Asbury Municipal Services District)

Cases:

• Halifax Drainage District of Volusia County v. State, 185 So. 123 (Fla. 1938), special districts have only expressly granted or implied powers
• Bannon v. Port of Palm Beach District, 246 So. 2d 737 (Fla. 1971), purpose of the public-funds limit
• Northern Palm Beach County Water Control District v. State, 604 So. 2d 440 (Fla. 1992), public purpose and retained ownership
• Orange County Industrial Development Authority v. State, 427 So. 2d 174 (Fla. 1983), broad public purpose cannot sustain a purely private use

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/special-districts-public-funds
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1606

Original opinion text

Mr. Wayne E. Flowers

Attorney for the Lake Asbury Municipal

Services District

315 South Monroe Street, Suite 830

Tallahassee, Florida 32301

RE: SPECIAL DISTRICTS – PUBLIC FUNDS – LAKE ASBURY MUNICIPAL SERVICE BENEFIT DISTRICT – authority to purchase land with boat ramp and allow public use. s. 10, Art. VII, Fla. Const.

Dear Mr. Flowers:

On behalf of the Lake Asbury Municipal Services District, you ask substantially the following questions:

1. May the Lake Asbury Municipal Services District acquire parcels of land with boat ramps which, in addition to providing access to lakes for district purposes, would provide access to lot owners within the district?

2. If so, must the district allow the general public to use the boat ramps?

In sum:

1. The Lake Asbury Municipal Services District may acquire parcels of land with boat ramps should the district’s governing board determine that such acquisition primarily facilitates the purpose of maintaining the lakes and dams under the district’s jurisdiction.

2. While the incidental use of the boat ramps by the general public would not raise concerns regarding the propriety of acquiring and maintaining the property for district purposes, restricting the use to lot owners within the district could be seen as an expenditure of public funds in order to facilitate the private use of the boat ramps for select individuals and thus prohibited.

Question One

Chapter 86-392, Laws of Florida (1986), creates the Lake Asbury Municipal Services District (district). [1] The purpose of the district is the "continuing maintenance of the lakes and dams known as Lake Asbury, South Lake Asbury, and Lake Ryan in Clay County, Florida." [2] Among the powers granted to the district’s governing board is the authority to "purchase, hold, lease, sell, or otherwise acquire and convey such real and personal property and interest therein as may be necessary or proper to carry out the purpose of this act" and to "acquire, construct, operate, maintain, equip, improve, extend, and enlarge capital projects within or without the district for the purposes of enabling the district to perform the specialized public functions or services as herein provided[.]" [3] (e.s.)

The enabling legislation for the district grants authority to acquire property and expend district funds for capital projects in carrying out the purpose of the district, i.e., maintaining the lakes and dams under the district’s jurisdiction. This limitation reiterates the long-standing interpretation by Florida courts and this office that the exercise of such powers is limited to carrying out expressly stated purposes. As a statutorily created entity, the district has only such powers and authority as have been expressly granted by law or may be necessarily implied therefrom in order to carry out an expressly granted power. [4] Any reasonable doubt as to the lawful existence of a particular power sought to be exercised must be resolved against the exercise thereof. [5] The implied powers accorded to administrative agencies must be indispensable to powers expressly granted, that is, those powers that are necessary or fairly or reasonably implied as an incident to those powers. [6]

There is no doubt that the district has the authority to acquire property such as parcels of land and expend funds for capital projects such as boat ramps when such actions fulfill the district’s purpose of maintaining the lakes and dams within the district. It would appear that access to the lakes would be necessary to facilitate their maintenance and that of the dams. [7] Such a determination, however, must be made by the governing body of the district and cannot be delegated to this office. [8]

Question Two

The issue of whether boat ramps acquired and maintained by the district must be open to the general public or may be restricted to lot owners within the district requires a discussion of the appropriate expenditure of public funds. [9] Article VII, section 10, Florida Constitution, prohibits the state and its subdivisions from using their taxing power or pledging public credit to aid any private person or entity. The purpose of this constitutional provision is "to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would be at most only incidentally benefited." [10] If the expenditure primarily or substantially serves a public purpose, however, the fact that the expenditure may also incidentally benefit private individuals does not violate Article VII, section 10. [11]

In order to satisfy Article VII, section 10, Florida Constitution, the expenditure of district funds must be for a public purpose. This office, in determining whether public funds may be expended for improvements to private property such as private roads, has considered whether the governmental entity has a property right or interest in such property or whether the public has an easement or right to use the property.

For example, in Attorney General Opinion 79-14, this office concluded that the expenditure of public funds by a municipality to repair or maintain private streets in which the municipality has no property rights or interest, and over which the public has no easement or right of use, would appear to contravene the public purpose requirements of Article VII, section 10, Florida Constitution.[12] Similarly, this office in Attorney General Opinion 85-101 concluded that public funds could not be used to maintain a private bridge that was not open to or set apart for the public and upon which the public had no right to travel.

In Northern Palm Beach County Water Control District v. State, [13] the Supreme Court of Florida concluded that Article VII, section 10, Florida Constitution, did not prohibit the water control district from issuing bonds to finance on-site road improvements in a district created for the purpose of draining and reclaiming the land. In reaching its decision, the Court relied on the fact that the district's taxing power was not involved, there was no pledge of the district's credit, the Legislature had set forth a declaration of the public purpose to be served, and the district would retain ownership of the roadways in question.

The Court expressed concern that public access to the roads would be limited:

"[T]he fact that public access to the roads will be limited raises a question of whether the stated public purposes are only incidental to a primary private purpose . . . ." [14] The fact that the district retained ownership of the roadways in question, coupled with the legislative declaration of a public purpose, "leads us to the conclusion that the on-site road improvements serve a public purpose." [15] The Court stated, however, that "[a] broad, general public purpose . . . will not constitutionally sustain a project that in terms of direct, actual use, is purely a private enterprise." [16]

The district’s purchase of boat ramps and restriction of their use to only those members of the public owning lots within the district could raise concerns similar to those highlighted by the Court in Northern Palm Beach County Water Control District, i.e., citing a broad general public purpose of maintaining the dams and lakes may not constitutionally sustain the use of the ramps by only those members of the public who own lots within the district. Such a limited use only by the lot owners would have the appearance of providing a privilege to specific private individuals to the exclusion of the general public. [17] The incidental use of the boat ramps by the general public, however, would not raise similar concerns, since there would be no specific private individuals who would benefit from the expenditure of public funds.

Accordingly, it is my opinion that the district is authorized to purchase property and expend district funds for capital projects to fulfill the purposes of the district, i.e., the maintenance of lakes and dams within the district and incidentally provide access to such property to the general public.

Sincerely,

Pam Bondi

Attorney General

PB/tals

[1] Section 1, Ch. 86-392, Laws of Fla. (1986).

[2] Section 2(1), Ch. 86-392, Laws of Fla. (1986).

[3] Section 2(4), Ch. 86-392, Laws of Fla. (1986).

[4] See Halifax Drainage District of Volusia County v. State, 185 So. 123, 129 (Fla. 1938); Ops. Att’y Gen. Fla. 96-90 (1996) and 89-42 (1989).

[5] See Halifax Drainage District at 129; State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So. 2d 628 (Fla. 1st DCA 1974), cert. dismissed, 300 So. 2d 900 (Fla. 1974); City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d 493 (Fla. 1973). And see, e.g., Ops. Att'y Gen. Fla. 02-30 (2002) and 04-48 (2004).

[6] See, e.g., Gardinier, Inc. v. Florida Department of Pollution Control, 300 So. 2d 75, 76 (Fla. 1st DCA 1974); Williams v. Florida Real Estate Commission, 232 So. 2d 239, 240 (Fla. 4th DCA 1970).

[7] You state that the district and its contractors use the boat ramps to access the lakes to perform certain functions, such as, aquatic weed control, dam and water control structure inspection and maintenance, and water quality testing.

[8] See, e.g., Ops. Att'y Gen. Fla. 86-35 (1986) and 90-74 (1990).

[9] While the question of whether the district may acquire the boat ramps and prohibit their use by any members of the public has not been raised, such a prohibition would not alter the conclusion that the district may obtain the subject property upon an appropriate determination that such action fulfills a district purpose.

[10] Bannon v. Port of Palm Beach District, 246 So. 2d 737, 741 (Fla. 1971).

[11] See, e.g., State v. Housing Finance Authority of Polk County, 376 So. 2d 1158, 1160 (Fla. 1979). If the county's taxing power or pledge of credit is involved, the improvements must serve a paramount public purpose. See Orange County Industrial Development Authority v. State, 427 So. 2d 174 (Fla. 1983). If, however, neither the taxing power nor a pledge of credit is involved, then it is enough to show only that a public purpose is involved. Linscott v. Orange County Industrial Development Authority, 443 So. 2d 97 (Fla. 1983).

[12] And see Padgett v. Bay County, 187 So. 2d 410 (Fla. 1st DCA 1966); Collins v. Jackson County, 156 So. 2d 24 (Fla. 1st DCA 1963); Op. Att'y Gen. Fla. 73-222 (1973) (expenditure of county funds to provide minor work or repair on private roads). Cf. Brumby v. City of Clearwater, 149 So. 203 (Fla. 1933), in which the Supreme Court of Florida voided a contract between a city and a private individual whereby the city financed the dredging of a channel leading to the private individual's place of business, because "the contract clearly required the appropriation of public money for the individual benefit of the appellant[.]"

[13] 604 So. 2d 440 (Fla. 1992).

[14] Id. at 443.

[15] Id.

[16] Id., quoting, Orange County Industrial Development Authority v. State, 427 So. 2d 174, 179 (Fla. 1983).

[17] Cf. City of Maitland v. Orlando Bassmasters Association of Orlando, Florida, Inc., 431 So. 2d 178 (Fla. 5th DCA 1983), in which the district court found no rational basis in a municipal ordinance which prohibited nonresidents of the city from obtaining parking permits for boat trailer spaces in a municipal lakefront park; rather, the only basis for the ordinance was the fact that residents desired an assured parking space near the municipal boat ramp. See also Op. Att’y Gen. Fla. 76-124 (1976) (while municipality may charge a fee for individual use of a municipally owned park or other municipal recreational facility which is reasonably related to the expense incurred in operating and maintaining the park or facility, the municipality may not charge a higher fee to nonresidents than residents unless all relevant economic factors establish a rational foundation for such differentiation).