Can a Florida county use tourist development tax (bed tax) money to add bicycle-friendly shoulders to a county road?

Plain-English summary

Lake County, Florida, hosts large cycling events along Sugarloaf Mountain Road, an unshouldered scenic road that climbs the highest peak in central Florida. The Mount Dora Bicycle Festival, the Horrible Hundred, and the Great Floridian Triathlon together draw thousands of riders. The county wanted to widen the road by adding shoulders that would double as bicycle lanes during these events, and asked if it could pay for the improvement out of tourist development tax (bed tax) revenue.

Specifically, Lake County asked about the small-county "nature center" option in section 125.0104(5)(b), which allows counties under 750,000 in population to spend TDT revenue to "acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote one or more zoological parks, fishing piers or nature centers which are publicly owned and operated."

Attorney General Ashley Moody answered no. A road shoulder is not a "nature center" under any common-sense reading of those words. Earlier AG opinions had defined "nature center" as a focal point for activity, like the zoological parks and fishing piers it sits next to in the statute (Op. Att'y Gen. Fla. 94-12). Earlier opinions had allowed funding for free-standing recreational trails that connect to public nature preserves (Op. Att'y Gen. Fla. 2012-38), but contiguous shoulders on a county road do not turn the road into a nature center. Under section 334.03(30), shoulders are part of the "transportation facility" with which they are colocated, and section 335.065(1)(a) treats bicycle ways as an element of transportation planning, not nature programming. Broward Cty. v. Bouldin makes the same point at common law: road shoulders serve "road purposes."

The opinion did not say Lake County could never spend TDT money on these shoulders. It said the small-county nature-center subsection was not the right vehicle. Section 125.0104(5)(a)6. allows TDT use for "transportation… facilities" that are major capital improvements, but only if the further conditions in that paragraph are met. Lake County would need to look there, not at the nature-center option, if it wanted to use TDT for the road work.

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.

Background and statutory framework

Florida's tourist development tax, often called the "bed tax," is the local-option tax counties may impose under section 125.0104 on transient lodging of less than six months. The statute specifies a closed list of permissible uses for the revenue. Counties cannot spend TDT money on whatever they like; the revenue is hypothecated to tourism-related purposes the Legislature has identified.

Section 125.0104(5)(b) is one of the smallest-population options. It allows a county with fewer than 750,000 residents to use TDT revenue for zoological parks, fishing piers, and nature centers that are publicly owned and operated (or owned and operated by a not-for-profit corporation and open to the public). Lake County was within that population threshold.

Statutory interpretation here followed State v. Peraza: the words of a statute take their plain and ordinary meaning, with dictionary definitions used when the term is undefined. The Legislature did not define "nature center." The 1994 AG opinion (94-12) drew on the Webster's definition: "nature" as outdoor scenery and "center" as a focal point for activity. Sugarloaf Mountain Road, with shoulders or without, did not fit that pattern.

Two structural points reinforced the textual reading. First, section 125.0104(5)(a)6. addresses transportation facilities separately and conditionally; the Legislature evidently treated transportation facilities as a different funding category from nature centers. Second, the road-shoulder definition in Broward Cty. v. Bouldin and the transportation-planning framework in section 335.065(1)(a) treat shoulders as part of the road, not as separate recreational infrastructure.

Common questions

Q: Can Lake County pay for these shoulders out of TDT revenue at all?
A: Possibly, under a different subsection. Section 125.0104(5)(a)6. allows TDT money for major capital improvements that include transportation facilities, but only if the additional conditions in that paragraph are met. Lake County would need to evaluate that path. The 2019 opinion only ruled out the nature-center route.

Q: What about a separate paved bicycle trail that runs through nature preserves?
A: The 2019 opinion drew a sharp line between contiguous road shoulders and free-standing recreational trails. AG Opinion 2012-38 looked favorably at funding an 18-mile multi-use pathway adjacent to coastal dune lakes and forests, treating it as comparable to a nature center. The key was that it was a separate trail, not part of a road's transportation footprint.

Q: What does "nature center" mean in Florida law for TDT purposes?
A: A focal point for outdoor scenery, comparable to a zoological park or a fishing pier. Section 125.0104(5)(b) groups all three together. Earlier AG opinions said the funding may go to "the actual nature center facility and environs, including personnel to run the center" (Op. Att'y Gen. Fla. 2016-18). It is the facility itself, not roads that pass near nature.

Q: Can a county use TDT money to promote cycling events directly?
A: That is a different question and depends on which subsection of section 125.0104(5) the county invokes. Several subsections allow TDT money for tourism promotion and advertising. The county would need to match the proposed use to a specific authorization in the statute and document the promotion-of-tourism connection.

Q: What if the county is over 750,000 in population?
A: Section 125.0104(5)(b) is the small-county option. Counties over 750,000 have other authorized uses but not this particular nature-center provision. The reasoning would be similar: a road shoulder is not a nature center under any plain reading.

Citations

Statutes:

• § 125.0104(5)(b), Fla. Stat. (2018) (small-county TDT use for zoological parks, fishing piers, and nature centers)
• § 125.0104(5)(a)6., Fla. Stat. (2018) (TDT use for major capital improvements including transportation facilities)
• § 334.03(30), Fla. Stat. (2018) (transportation facility definition)
• § 335.065(1)(a), Fla. Stat. (2018) (bicycle ways as transportation planning element)

Cases:

• State v. Peraza, 259 So. 3d 728 (Fla. 2018)
• Broward Cty. v. Bouldin, 114 So. 2d 737 (Fla. 2d DCA 1959)

Prior AG opinions:

• Op. Att'y Gen. Fla. 94-12 (1994)
• Op. Att'y Gen. Fla. 2012-38
• Op. Att'y Gen. Fla. 2016-18

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/tourist-development-tax-nature-center-road-shoulder
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1481

Original opinion text

Ms. Melanie Marsh

Lake County Attorney

Post Office Box 7800

Tavares, Florida 32778-7800

RE: TOURIST DEVELOPMENT TAX REVENUE, SHOULDER OF ROAD AS NATURE CENTER – authority to use tourist development tax revenue to add contiguous shoulders to each side of paved scenic road.

§ 125.0104(5)(b), Fla. Stat. (2018).

Dear Ms. Marsh:

On behalf of the Lake County Board of County Commissioners (“Board”), you have requested an opinion addressing the following (rephrased) question:

Under section 125.0104(5)(b), Florida Statutes (2018) (which, in pertinent part, authorizes a county having a population of less than 750,000 to use tourist development tax revenues to “acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote one or more… nature centers which are publicly owned and operated”), may the County use tourist development tax revenue to add contiguous shoulders to each side of a County-maintained road at the same time that the road is resurfaced, where the road is used by bicyclists in various competitive multi-day cycling events which draw tourists from all over Florida and the United States, and the County finds that the addition of the shoulders will primarily promote tourism in Lake County?

In sum:

Because the proposed construction of shoulders contiguous to the described scenic paved road would not “construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote” a “nature center,” the County may not, under section 125.0104(5)(b), use tourist development tax revenue to add contiguous shoulders to each side of the road.

A Scenic Highway Is Not a “Nature Center”

In your letter, you describe the relevant circumstances as follows:

At 312 feet, Sugarloaf Mountain, located in Lake County, is one of the highest points in Florida and provides a scenic overlook of the surrounding area. The County maintains a road, Sugarloaf Mountain Road (the Road), that traverses up and down Sugarloaf Mountain. The Road is paved and is twenty (20) feet wide and does not have any shoulders. The Road attracts many tourists, mainly bicyclists and other athletes, from all over Florida and the United States. Several competitive bicycling events spanning several days and triathlons that utilize the Road are held each year due to the enjoyment of the views and the challenge of traveling up Sugarloaf Mountain. These tourism events include, but are not limited to, the Mount Dora Bicycle Festival (up to 1,000 participants), the Horrible Hundred (approximately 500 participants), and the Great Floridian Triathlon (approximately 1,200 participants). Notably, the Road remains open to general traffic flow during these events, although at times there is additional traffic control to assist with the increased event traffic.

Section 125.0104(5)(b), Florida Statutes, permits a county of less than 750,000 in population to use tourist development tax dollars:

“to acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote one or more zoological parks, fishing piers or nature centers which are publicly owned and operated or owned and operated by a not-for-profit corporation and open to the public.”

The operative question, then, is whether, under section 125.0104(5)(b), construction of shoulders contiguous to Sugarloaf Mountain Road would “construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote” a “nature center.” In its letter, the County posits that it could find that “the shoulders are part of a public recreational trail,” and that such “recreational trail” would qualify as a “nature center.”

The words used in a statute should be given their plain and ordinary meaning. State v. Peraza, 259 So. 3d 728, 731 (Fla. 2018). The Legislature has not defined the term “nature center.” Where the Legislature has not defined a term, it is appropriate to interpret the term according to its common understanding, unless the term is used in a technical sense, and to refer to dictionary definitions. Id.

The common understanding of the term “nature center” does not include a road shoulder. In Florida Attorney General Opinion 94-12 (1994), this office, referring to the dictionary, observed that the “term ‘nature’ is defined as ‘the aspect of the out-of-doors (as a landscape), natural scenery,’” and “[u]se of the word ‘center’ connotes ‘a point around which things revolve: a focal point for attraction, concentration, or activity.’” This interpretation is consistent with the statute’s use of the term “nature center” in a list of other focal points like “zoological parks” and “fishing piers.” In Florida Attorney General Opinion 2016-18, the Attorney General observed that “authorizing use of tourist development tax revenues to ‘acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or promote’ a nature center, appear[ed] to allow the county to direct funds only to support the actual nature center facility and environs, including personnel to run the center.” While, depending on the circumstances, constructing, extending, enlarging, remodeling, repairing, improving, or maintaining freestanding recreational trails[1] providing a network for pedestrians and bicyclists to access public nature preserves might qualify under the statute, such activities pertaining to road shoulders will not.

The contiguous paved shoulders of a road—even when demarcated as “bicycle lanes”—are part of the local transportation facility[2] with which they are colocated. This is reflected in section 335.065(1)(a), Florida Statutes, which states that bicycle ways “shall be given full consideration in the planning and development of transportation facilities, including the incorporation of such ways into…local transportation plans and programs.”[3]

This interpretation is also consistent with other parts of the statute which distinguish “nature centers” from “transportation facilities.” Section 125.0104(5)(a)6., Florida Statutes, allows tourist development tax revenues to be used to “acquire, construct, extend, enlarge, remodel, repair, improve, maintain, operate, or finance” major capital improvements, “including…transportation…facilities,” but such funds may be used for that purpose only if the additional conditions set forth in the statute are satisfied. For all these reasons, it is my opinion that tourist development tax revenue funds may not be used, under section 125.0104(5)(b), Florida Statutes, to construct shoulders contiguous to a scenic paved road.

Sincerely,

Ashley Moody

Attorney General

AM/ttlm

[1] Cf. Op. Att’y Gen. Fla. 2012-38 (discussing a project described by Walton County as an “18-mile multi-use pathway” adjacent to, inter alia, coastal dune lakes and coastal forests, and deemed comparable to the public recreational trail considered in Florida Attorney General Opinion 94-12).

[2] See § 334.03(30), Fla. Stat. (2018) (“‘Transportation facility’ means any means for the transportation of people or property from place to place which is constructed, operated, or maintained in whole or in part from public funds.”).

[3] Consistent with this concept, it has been recognized that “road purposes” are fulfilled by adjacent shoulders. See Broward Cty. v. Bouldin, 114 So. 2d 737, 739 (Fla. 2d DCA 1959) (“[I]t is well settled that when a public easement by prescription is acquired for road purposes, the width of the easement is not limited to that portion of the roadway actually traveled or paved. It includes also the land which is needed and used for the support and maintenance of the paved or traveled portion. This includes shoulders and ditches.”). (Emphasis added.)