HomeMy WebLinkAboutAttorney General Opinion to Questions on Charter Revisions
"-r~
Advisory Legal Opinion
Number: AGO 88-30
Date: July 26, 1988
Subject: Amendments and conflicting provisions in charter
Mr. Richard L. Doody
City Attorney
City of Tamarac
5811 Northwest 88th Avenue
Tamarac, Florida 33321
Dear Mr. Doody:
You have asked substantially the following questions:
(1) Do the provisions of s. 166.031, F.S., providing for
charter amendments, prevail over conflicting provisions
contained in a municipal charter?
(2) May only the governing body of a municipality submit
proposed amendments to the charter for referendum?
(3) Should the governing body propose an amendment to the
charter by ordinance?
(4) Does the language in s. 166.031(3), F.S., stating that
the provisions of the section are supplemental to the
provisions of all other laws, refer to state laws?
In sum, it is my opinion that:
(1) The provisions of s. 166.031, F.S., prevail over
conflicting provisions contained in a municipal charter.
(2) Section 166.031, F.S., permits changes to a municipal
charter to be proposed by the governing body or by petition
of the electors of the municipality.
(3) The governing body must submit its proposed amendment
to the municipal charter to the electors by ordinance.
(4) The provisions of s. 166.031(3), F.S., are supplemental
Page 1 of 5
. ..
to other provisions of state law.
QUESTION ONE
Section 2(a), Art. VIII, State Const., provides that
municipal charters may be amended pursuant to general or
special law. Section 166.031(1), F.S., states:
The governing body of a municipality may, by ordinance, or
the electors of a municipality may, by petition signed by
10 percent of the registered electors as of the last
preceding municipal general election, submit to the
electors of said municipality a proposed amendment to its
charter, which amendment may be to any part or to all of
said charter except that part describing the boundaries of
such municipality. The governing body of the municipality
shall place the proposed amendment contained in the
ordinance or petition to a vote of the electors at the next
general election held within the municipality or at a
special election called for such purpose. (e.s.)
A legislative directive as to how a thing shall be done is,
in effect, a prohibition against it being done in any other
way. (FN1) This office has previously concluded that any
charter provision adopted or readopted subsequent to the
effective date of the Municipal Home Rules Powers Act, Ch.
166, F.S., can only be amended in accordance with the
provisions of s. 166.031, F.S. (FN2) In addition, this
office in AGO 75-223 specifically advised the City of
Tamarac that its charter could not be amended except as
provided in s. 166.031, F.S.
Moreover, while Florida courts have recognized that
legislation may be concurrent, that is, enacted by both
state and local government in areas which have not been
specifically preempted by the state, concurrent legislation
enacted by municipalities may not conflict with state law.
(FN3)
Therefore, based upon the above, I am of the opinion that
the procedure for amending municipal charters set forth in
s. 166.031, F.S., would prevail over a conflicting
provision in the City of Tamarac charter.
QUESTION TWO
Section 166.031(1), F.S., authorizes the governing body by
ordinance, or the electors of the municipality by petition
signed by 10 percent of the registered electors as of the
last preceding municipal general election, to submit to the
electors of the municipality a proposed amendment to its
charter. The governing body is responsible for placing the
Page 2 of 5
proposed amendment contained in the ordinance or petition
to a vote of the electors at the next general election held
within the municipality or at a special election called for
that purpose. Section 166.031, F.S., thus authorizes the
amendment of a municipal charter by two methods, by
ordinance or by initiative petition.
As noted in Question One, concurrent legislation enacted by
a municipality may not conflict with state law; if such
conflict arises, state law will prevail. As a corollary, a
municipality cannot forbid that which the Legislature has
licensed, authorized or required, nor may it authorize that
which the Legislature has forbidden. (FN4)
Accordingly, inasmuch as s. 166.031, F.S., authorizes both
the governing body and the electors to submit proposed
amendments to the charter for referendum, I am of the
opinion that a municipal charter may not limit the
authority to propose amendments to its terms to only the
governing body of a municipality.
QUESTION THREE
Section 166.031(1), F.S., states that the governing body of
a municipality may, by ordinance, submit to the electors a
proposed amendment to the charter. The statute further
provides that the governing body shall place the proposed
amendment contained in the ordinance to a vote of the
electors. As stated previously, a legislative direction as
to how a thing shall be done is, in effect, a prohibition
against it being done in any other way. (FNS)
Based upon the above language, it appears clear that the
municipal governing body may propose an amendment to the
municipal charter only by ordinance. (FN6)
QUESTION FOUR
Section 166.031(3), F.S., provides in part that "[t]his
section shall be supplemental to the provisions of all
other laws relating to the amendment of municipal charters
and is not intended to diminish any substantive or
procedural power vested in any municipality by present
law." You ask whether the reference to law in the above
statute refers to state law.
The t6lrm "by law" as used in the Constitution or statutes
has generally been interpreted to mean a statute adopted by
both houses of the State Legislature. (FN7) Accordingly,
the reference in s. 166.031(3), F.S., to Iflawslf would
appear to refer to other state statutes relating to the
amendment of municipal charters. (FN8) It would not appear
Page 3 of 5
to authorize a municipality by ordinance or charter to
alter the terms of s. 166.031, F.S.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tjw
FN1 Alsop v. Pierce, 19 So.2d 799, 805-806 (Fla.1944);
Thayer v. State, 335 So.2d 815, 817 (Fla.1976).
FN2 See, AGO 77-135; and see, AGO 79-80 in which this
office concluded that the Lake Wales City Commission may
not unilaterally amend its municipal charter but rather was
bound by the provisions of s. 166.031. Cf., s. 166.031(3),
F.S., authorizing the amendment of a municipal charter
pursuant to s. 166.031, F.S., notwithstanding any charter
provisions to the contrary.
FN3 City of Miami Beach v. Rocio Corporation, 404 So.2d
1066 (3 D.C.A. Fla., 1981), pet. for rev. denied, 408 So.2d
1092 (Fla.1981); Board of Trustees of City of Dunedin v.
Dulje, 453 So.2d 177 (2 D.C.A.Fla., 1984), stating that a
municipality may not enact legislation which directly
conflicts with a state statute; where a conflict arises,
the state statute must prevail. And see, City of Hialeah v.
Martinez, 402 So.2d 602 (3 D.C.A.Fla., 1981), pet. for rev.
dismissed, 411 So.2d 380 (Fla.1981) (municipal charter
cannot make unlawful that which the Legislature has made
lawful) .
FN4 Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972); City
of Hialeah v. Martinez, supra. See generally, Scavella v.
Fernandez, 371 So.2d 535 (3 D.C.A.Fla., 1979) (where state
had granted right or permission to do something within a
certain period of time, county could not prohibit or
restrict the exercise of that right); AGO 82-92. Cf.,
Gaines v. City of Orlando, 450 So.2d 1174, 1177 n. 2 (5
D.C.A.Fla., 1984) (upon submission of petition signed by 15
percent of city's registered voters, city had clear legal
duty to verify those signatures and then to hold the
election pursuant to Ch. 166, F.S.).
FN5 See, footnote 1, supra.
FN6 See, Reino v. State, 352 So.2d 853 (Fla.1977) (where
language of statute is clear and unequivocal, legislative
Page 4 of 5
intent may be gleaned from words used without applying
incidental rules of construction); Citizens of State v.
Public Service Commission, 425 So.2d 534 (Fla.1982) (where
language of statute is plain and unambiguous as to fix
legislative intent, courts should not depart from plain
language used by Legislature) .
And see, AGO 78-61 stating that the governing body may
propose an amendment to the municipal charter by ordinance
and submit the same to the electors of the municipality for
approval.
FN7 See, Advisory Opinion to Governor, 22 So.2d 398
(Fla.1945) (term IIby law" as used in Constitution means a
statute passed by both houses of the Legislature) ;
Grapeland Heights Civic Association v. City of Miami, 267
So.2d 321, 324 (Fla.1972) (II 'law' in our constitution
means an enactment by the State Legislature ... not by a
City Commission or any other political bodyll); Broward
County v. Plantation Imports, Inc., 419 So.2d 1145 (4
D.C.A.Fla., 1982); AGO's 84-51, 84-39 and 79-109. And see,
State ex reI. Veale v. City of Boca Raton, 353 So.2d 1194
(4 D.C.A.Fla., 1977) (term "provided by lawll means provided
by statute); AGO 85-19.
FN8 See, e.g., ss. 101.161 (referenda; ballots); 100.342,
F.S. (notice of special election or referendum) .
Home I News I Opinions I Consumers I Lemon Law I Crime Victims I Open Government
Prosecution I Criminal Justice I Florida's AG I SG I Services I Jobs I Directory I Maps
Page 5 of 5