Can a Florida county use its 'bed tax' (tourist development tax) to repair or improve a city-owned museum building that is operated as a museum by a for-profit company?

Subject

Tourist development tax -- for-profit museum

Plain-English summary

Monroe County asked whether it could use tourist development tax (TDT) revenue to install a new fire sprinkler system at the Key West Shipwreck Museum. The building was owned by the City of Key West but leased to and operated as a museum by a for-profit corporation.

The AG concluded the answer was no. Section 125.0104(5)(a) lets counties use TDT funds for museums but limits eligible museums to two categories: (1) publicly owned and operated, or (2) owned and operated by not-for-profit organizations. The Key West Shipwreck Museum fit neither. Public ownership of the building was not enough; the operator's status mattered too. Because the operator was a for-profit corporation, the museum was outside the statute, and TDT revenue could not be used to fund the sprinkler upgrade.

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 is the tourist development tax?

Florida's Local Option Tourist Development Act, codified in § 125.0104, authorizes counties to impose a tax on short-term rentals of living quarters or accommodations within the county. The tax is sometimes called the "bed tax" or TDT.

What can TDT revenue be used for?

Section 125.0104(5) lists permissible uses, all tied to the act's purpose of advancing tourism and the tourist industry. AG opinions over many decades have framed the act narrowly around "the advancement, generation, growth and promotion of tourism." Subsection (5)(a)1 lets counties use revenue to "acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote one or more" specified types of facilities, including aquariums and museums.

What did § 125.0104(5)(a)1.c require for museums?

The museum had to be either (1) "publicly owned and operated and open to the public," or (2) "owned and operated by not-for-profit organizations and open to the public," and within the boundaries of the county or sub-county special taxing district where the tax was levied.

Was the Key West Shipwreck Museum publicly owned and operated?

It was publicly owned. The City of Key West owned the building. But it was not publicly operated; the operator was a for-profit corporation that leased the building from the city.

Could the for-profit operator qualify it as a not-for-profit museum?

No. The second category required ownership and operation by a not-for-profit organization. Public ownership combined with for-profit operation didn't fit either category.

Why did the AG read the statute strictly?

The AG cited two settled construction principles. Thayer v. State (Fla. 1976): "where a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned." Alsop v. Pierce (Fla. 1944): "[w]hen the Legislature has prescribed the mode, that mode must be observed. When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way."

Could the city sell the building to a not-for-profit and then qualify?

The opinion does not address that scenario directly. A bona fide change in ownership or operating structure could move the museum into one of the two qualifying categories. But the answer would depend on the specific structure of any new arrangement.

What about other tourism-related uses for the building?

§ 125.0104(5)(a) lists other permissible uses, including convention centers, sports stadiums, and beach park facilities. None of those generally apply to a small for-profit museum. If the City wanted public funds for the sprinkler upgrade, it would need a different funding source.

Background and statutory framework

Florida's Local Option Tourist Development Act (§ 125.0104) authorized counties to impose a tax on short-term rentals of living quarters or accommodations. This is the "bed tax" most counties use to fund tourism-related projects.

§ 125.0104(5)(a)1 listed eligible uses for TDT revenue, including:

1. To acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote one or more:

[...]

c. Aquariums or museums that are publicly owned and operated or owned and operated by not-for-profit organizations and open to the public, within the boundaries of the county or subcounty special taxing district in which the tax is levied . . . .

The two qualifying categories were:

1. Publicly owned and operated: both ownership and operation by a public entity.
2. Owned and operated by not-for-profit organizations: both ownership and operation by a 501(c)(3) or similar nonprofit.

The Key West Shipwreck Museum was a hybrid: city-owned, but leased to a for-profit operator. The AG's reading of the statute as listing exhaustive categories meant the hybrid structure did not qualify.

The opinion follows a long line of AG opinions interpreting § 125.0104 narrowly. Tenn. Att'y Gen. Op. 2017-06 reiterated the statute's tourism focus, citing back to opinions from 1983.

Citations

• § 125.0104, Fla. Stat. (Local Option Tourist Development Act)
• § 125.0104(5), Fla. Stat. (permissible uses of TDT revenue)
• § 125.0104(5)(a)1.c, Fla. Stat. (aquarium and museum eligibility)
• Thayer v. State, 335 So. 2d 815 (Fla. 1976)
• Alsop v. Pierce, 19 So. 2d 799 (Fla. 1944)
• Fla. AG Ops. 2017-06, 14-02, 13-29, 83-18

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/tourist-development-tax-for-profit-museum
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1471

Original opinion text

Mr. Robert B. Shillinger
Monroe County Attorney
1111 12th Street, Suite 408
Key West, FL 33040

Dear Mr. Shillinger:

On behalf of the Monroe County Board of County Commissioners, you have requested an opinion on the following question:

Whether, under section 125.0104(5)(a), Florida Statutes (2019), tourist development tax funds can be used to repair or improve a publicly owned museum which is operated by a for-profit corporation?

In sum:

Section 125.0104(5)(a) does not authorize the use of tourist development tax funds to repair or improve a publicly owned museum which is operated by a for-profit corporation.

Your letter reflects that this question arises from a proposal by the City of Key West, as a potential applicant for a grant funded by tourist development taxes, to upgrade and install a new fire sprinkler system at the Key West Shipwreck Museum. The museum is located on property owned by the city but operated by a for-profit corporation which leases the facility from the city.

The Local Option Tourist Development Act, section 125.0104, Florida Statutes, authorizes counties to impose a tax on short-term rentals of living quarters or accommodations within the county (with certain exceptions not pertinent here). This office has often stated that "'the intent and purpose of the act was to provide for the advancement, generation, growth and promotion of tourism, the enhancement of the tourist industry, and the attraction of conventioneers and tourists from within and without the state to a particular area or county of the state.'"

Subsection (5) of the act sets forth various purposes for which revenues from the tax may be expended. Pursuant to section 125.0104(5)(a)1., such funds may be used:

1. To acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote one or more:

• • *

c. Aquariums or museums that are publicly owned and operated or owned and operated by not-for-profit organizations and open to the public, within the boundaries of the county or subcounty special taxing district in which the tax is levied . . . .

(Emphasis added.) This language makes it clear that tourist development tax revenues may only be used for specified purposes related to the operation of museums that are either (1) publicly owned and operated and open to the public or (2) owned and operated by not-for-profit organizations and open to the public. The property you describe fits neither category. The statute makes no provision for the use of tourist development tax revenues for repair of publicly owned buildings leased to for-profit corporations operating a museum on the premises.

"[W]here a statute enumerates the things on which it is to operate, or forbids certain things, it is ordinarily to be construed as excluding from its operation all those not expressly mentioned." Further, "[w]hen the Legislature has prescribed the mode, that mode must be observed. When the controlling law directs how a thing shall be done that is, in effect, a prohibition against its being done in any other way." Given the statute's straightforward requirements, this office is unable to render a formal opinion which would further clarify the statute.

Therefore, it is my opinion that section 125.0104(5)(a)1., Florida Statutes, does not authorize the use of tourist development tax funds to repair or improve a publicly owned building which is operated as a museum by a for-profit corporation.

Sincerely,

Ashley Moody
Attorney General

AM/tlm