Can a Florida county spend tourist development tax money on beach erosion control and inlet dredging?

Plain-English summary

Collier County asked the Attorney General's office whether its policy of spending tourist development tax revenue on erosion control structures was lawful, whether its ordinance allowing spending on "pass and inlet maintenance" was proper, and whether the tax could pay to dredge an inlet and pass when the sand would be used for beach renourishment.

Assistant Attorney General Lagran Saunders declined to answer the county-specific questions, explaining that the office does not interpret local codes and ordinances and must presume a duly enacted ordinance is valid. He offered general comments instead. Tourist development tax spending under section 125.0104 must be based on the county governing body's determination that the activity directly and primarily promotes tourism. Section 125.0104(5)(a)4. specifically allows spending on beach park facilities and beach improvement, maintenance, renourishment, restoration, and erosion control, including shoreline protection and cleanup or restoration of inland lakes and rivers with public access, as those uses relate to physically preserving the beach or shoreline. The list of authorized purposes excludes everything not named, and whether a particular project fits and promotes tourism is the county's call, not the AG's.

Currency note

This opinion was issued in 2013. 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 can tourist development tax money be spent on?
A: Only the purposes listed in section 125.0104(5)(a). For beaches, section 125.0104(5)(a)4. covers beach park facilities and beach improvement, maintenance, renourishment, restoration, and erosion control, including shoreline protection and cleanup or restoration of inland lakes and rivers with public access.

Q: Did the AG approve Collier County's specific ordinance and policy?
A: No. The office said it does not interpret local ordinances and must presume a validly enacted one is lawful, so it would not opine on the county's existing erosion-control and dredging policy.

Q: Who decides whether a project promotes tourism?
A: The county's governing body. The opinion stressed that determining whether a project promotes tourism and fits the statute's authorized expenditures is a determination the county must make, not the Attorney General.

Q: Can the tax pay for beaches and shorelines of inland freshwater lakes?
A: The opinion pointed to AGO 87-16, which concluded a county could use the tax for inland freshwater lake beaches and shorelines, if the spending was primarily related to promoting tourism in the county.

Background and statutory framework

Section 125.0104, Florida Statutes, the tourist development tax, lets a county tax short-term rentals and spend the revenue only on the purposes the statute enumerates. The Attorney General has long held that the enumeration of permitted uses precludes spending on anything else, and that the threshold question, whether a project directly and primarily promotes tourism, is a factual determination for the county's governing body.

Subsection (5)(a)4. is the beach-and-shoreline category. The opinion traced its history: at the time of AGO 87-16 the statute authorized spending to "finance beach improvement, maintenance, renourishment, restoration, and erosion control," and it was later amended (Chapter 87-280, Laws of Florida) to add shoreline protection, enhancement, cleanup, or restoration of inland lakes and rivers. The office concluded that erosion-control and renourishment-related dredging can fall within this category, but only as a tourism-promoting use the county itself finds qualifies, which is why it left the county's specific ordinance to the county.

Citations and references

Statutes:

• § 125.0104, Fla. Stat. (Tourist Development Tax)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/tourist-development-tax-expenditures-3
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8122

Original opinion text

Mr. Jeffrey A. Klatzkow
Collier County Attorney
3299 East Tamiami Trail
Suite 800
Naples, Florida 34112-5749

Dear Mr. Klatzkow:

On behalf of Collier County, you ask whether the county's policy regarding expenditures of tourist development tax revenues for erosion control structures is a lawful expenditure of such taxes, whether the county's ordinance allowing expenditure of tourist development taxes for "pass and inlet maintenance" is proper, and, if not, whether tourist development taxes may be used to dredge the inlet and pass when the sand will be used for beach renourishment.

Initially, I must note that this office does not interpret local codes and ordinances, but rather renders opinions on the application of state statutes. Additionally, this office must presume the validity of a duly enacted ordinance or local act. Accordingly, this office will not render an opinion on the county's existing ordinance and policy governing the expenditure of tourist development taxes for erosion control structures and the dredging of the inlet pass for sand to be used for beach renourishment. The following general comments, however, are offered for your consideration.

Generally, this office has found that the expenditure of tourist development taxes pursuant to section 125.0104, Florida Statutes, must be based on a determination by the governing body of the county that the activity directly and primarily promotes tourism.[1] Section 125.0104(5)(a)4., Florida Statutes, specifically authorizes the expenditure of such tax revenues

"[t]o finance beach park facilities or beach improvement, maintenance, renourishment, restoration, and erosion control, including shoreline protection, enhancement, cleanup, or restoration of inland lakes and rivers to which there is public access as those uses relate to the physical preservation of the beach, shoreline, or inland lake or river. . . ."

Opinions of this office have consistently stated that the enumeration of those things which may be funded by tourist development taxes precludes the expenditure of such funds for other purposes.[2] Ultimately, however, the determination of whether a project promotes tourism and falls within the enumerated authorized expenditures under the act is one which must be made by the governing body of the county and cannot be made by this office.

In Attorney General Opinion 87-16, this office was asked whether a county could expend tourist development tax revenues to improve, maintain, renourish, or restore public shoreline or beaches of inland freshwater lakes. At that time section 125.0104, Florida Statutes, authorized the expenditure of such funds to "finance beach improvement, maintenance, renourishment, restoration, and erosion control."[3] While the statute was subsequently amended to reflect authorization to spend tax revenues for shoreline protection, enhancement, cleanup, or restoration of inland lakes and rivers,[4] the opinion concluded that the county could use tourist development tax revenues for beaches and shorelines of inland freshwater lakes, if such expenditures were primarily related to promoting tourism within the county.

I trust that these informal comments will provide guidance in your resolution of the questions you have raised.

Sincerely,

Lagran Saunders
Assistant Attorney General

ALS/tsrh

[1] See Op. Att'y Gen. Fla. 10-09 (2010).

[2] See, e.g., Ops. Att'y Gen. Fla. 10-09 (2010) (use of tourist development tax to stock lake with fish questionable in light of restriction of use to enhancement of physical aspects of lakes and rivers); 00-25 (2000) (tourist development tax may not be used to fund private sports facility; however, the promotion of a private event which primarily attracts tourists authorized); 00-29 (2000) (where tourist development plan specifies how each of the projects set forth in the plan are to be funded, excess funds may not be transferred between such accounts without amending the plan as prescribed in s. 125.0104(4)(d), Fla. Stat.).

[3] See s. 125.0104, Fla. Stat. (1986 Supp.).

[4] See s. 6, Ch. 87-280, Laws of Fla., effective Oct. 1, 1987; Ops. Att'y Gen. Fla. 87-16 (1987) was rendered Feb. 18, 1987.