sc15-890-advisory-opinion-to-the-attorney-general-re-limits-or-prevents ( 2015 )

Supreme Court of Florida
____________
No. SC15-780
____________
ADVISORY OPINION TO THE ATTORNEY GENERAL RE: LIMITS OR
PREVENTS BARRIERS TO LOCAL SOLAR ELECTRICITY SUPPLY.
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No. SC15-890
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE: LIMITS OR
PREVENTS BARRIERS TO LOCAL SOLAR ELECTRICITY SUPPLY
(FINANCIAL IMPACT STATEMENT).
[October 22, 2015]
PER CURIAM.
The Attorney General of Florida has petitioned this Court for an advisory
opinion as to the validity of a citizen initiative amendment to the Florida
Constitution, titled “Limits or Prevents Barriers to Local Solar Electricity Supply,”
and the corresponding Financial Impact Statement submitted by the Financial
Impact Estimating Conference. The constitutional amendment is being proposed
by Floridians for Solar Choice, Inc. (the “Sponsor”), pursuant to article XI, section
3, of the Florida Constitution. We have jurisdiction. See art. IV, § 10, art. V,
§ 3(b)(10), Fla. Const.
This Court’s review of the amendment is limited to two issues. First, we
must determine if the proposed amendment meets the requirements of article XI,
section 3, Florida Constitution, which provides that “any such revision or
amendment, except for those limiting the power of government to raise revenue,
shall embrace but one subject and matter directly connected therewith.” Second,
we must determine if the ballot title and summary satisfy the requirements of
section 101.161(1), Florida Statutes (2014). That statute provides that when a
constitutional amendment is submitted to the vote of the people, “a ballot summary
of such amendment . . . shall be printed in clear and unambiguous language on the
ballot.” § 101.161(1), Fla. Stat. Section 101.161(1) also mandates that the ballot
summary of the amendment “shall be an explanatory statement, not exceeding 75
words in length, of the chief purpose of the measure.” § 101.161(1), Fla. Stat. The
ballot shall also include a separate Financial Impact Statement concerning the
measure prepared by the Financial Impact Estimating Conference according to the
requirements of section 100.371(5), Florida Statutes (2014). See § 101.161(1), Fla.
Stat.; § 100.371(5), Fla. Stat.
As we explain, we conclude that that proposed amendment embraces a
single subject and matter directly connected therewith, and that the ballot summary
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explaining the chief purpose of the measure is not clearly and conclusively
defective. We also conclude that the accompanying Financial Impact Statement
complies with section 100.371(5), Florida Statutes. Accordingly, we approve the
proposed amendment and Financial Impact Statement for placement on the ballot
so long as the remaining requirements of article XI, section 3, of the Florida
Constitution, are met.1
I. BACKGROUND
On April 24, 2015, the Attorney General petitioned this Court for an
opinion as to the validity of an initiative petition sponsored by Floridians for
Solar Choice, Inc., pursuant to article XI, section 3, of the Florida
Constitution. The sponsor submitted a brief supporting the validity of the
initiative petition. The Attorney General submitted a brief in opposition, as
did the Florida Chapter of the National Congress of Black Women, Inc.; the
Orlando Utilities Commission; the National Black Chamber of Commerce;
1. Article XI, section 3, Florida Constitution, also requires that the sponsor
file “with the custodian of state records a petition containing a copy of the
proposed revision or amendment, signed by a number of electors in each of one
half of the congressional districts of the state, and of the state as a whole, equal to
eight percent of the votes cast in each of such districts respectively and in the state
as a whole in the last preceding election in which presidential electors were
chosen.”
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the Florida State Hispanic Chamber of Commerce; the Florida Chamber of
Commerce; the Florida Electric Cooperatives Association, Inc.; Florida
Power & Light Company, Duke Energy Florida, Gulf Power Company, and
Tampa Electric Company; the City of Coral Gables; the Florida Council for
Safe Communities; and the Florida League of Cities, Inc., and Florida
Municipal Electric Association, Inc.
The amendment proposed by Floridians for Solar Choice, Inc., would add
the following new section 29 to article X of the Florida Constitution:
ARTICLE X, SECTION 29. Purchase and sale of solar electricity.—
(a) PURPOSE AND INTENT. It shall be the policy of the state to
encourage and promote local small-scale solar-generated electricity
production and to enhance the availability of solar power to
customers. This section is intended to accomplish this purpose by
limiting and preventing regulatory and economic barriers that
discourage the supply of electricity generated from solar energy
sources to customers who consume the electricity at the same or a
contiguous property as the site of the solar electricity production.
Regulatory and economic barriers include rate, service and territory
regulations imposed by state or local government on those supplying
such local solar electricity, and imposition by electric utilities of
special rates, fees, charges, tariffs, or terms and conditions of service
on their customers consuming local solar electricity supplied by a
third party that are not imposed on their other customers of the same
type or class who do not consume local solar electricity.
(b) PURCHASE AND SALE OF LOCAL SMALL-SCALE SOLAR
ELECTRICITY.
(1) A local solar electricity supplier, as defined in this section, shall
not be subject to state or local government regulation with respect to
rates, service, or territory, or be subject to any assignment,
reservation, or division of service territory between or among electric
utilities.
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(2) No electric utility shall impair any customer’s purchase or
consumption of solar electricity from a local solar electricity supplier
through any special rate, charge, tariff, classification, term or
condition of service, or utility rule or regulation, that is not also
imposed on other customers of the same type or class that do not
consume electricity from a local solar electricity supplier.
(3) An electric utility shall not be relieved of its obligation under law
to furnish service to any customer within its service territory on the
basis that such customer also purchases electricity from a local solar
electricity supplier.
(4) Notwithstanding paragraph (1), nothing in this section shall
prohibit reasonable health, safety and welfare regulations, including,
but not limited to, building codes, electrical codes, safety codes and
pollution control regulations, which do not prohibit or have the effect
of prohibiting the supply of solar-generated electricity by a local solar
electricity supplier as defined in this section.
(c) DEFINITIONS. For the purposes of this section:
(1) “local solar electricity supplier” means any person who supplies
electricity generated from a solar electricity generating facility with a
maximum rated capacity of no more than 2 megawatts, that converts
energy from the sun into thermal or electrical energy, to any other
person located on the same property, or on separately owned but
contiguous property, where the solar energy generating facility is
located.
(2) “person” means any individual, firm, association, joint venture,
partnership, estate, trust, business trust, syndicate, fiduciary,
corporation, government entity, and any other group or combination.
(3) “electric utility” means every person, corporation, partnership,
association, governmental entity, and their lessees, trustees, or
receivers, other than a local solar electricity supplier, supplying
electricity to ultimate consumers of electricity within this state.
(4) “local government” means any county, municipality, special
district, authority, or any other subdivision of the state.
(d) ENFORCEMENT AND EFFECTIVE DATE. This amendment
shall be effective on January 3, 2017.
The ballot title for the proposed amendment, which is limited by law to
fifteen words, is stated as “Limits or Prevents Barriers to Local Solar Electricity
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Supply.” The ballot summary, which is limited by law to seventy-five words,
states:
Limits or prevents government and electric utility imposed barriers to
supplying local solar electricity. Local solar electricity supply is the
non-utility supply of solar generated electricity from a facility rated up
to 2 megawatts to customers at the same or contiguous property as the
facility. Barriers include government regulation of local solar
electricity suppliers’ rates, service and territory, and unfavorable
electric utility rates, charges, or terms of service imposed on local
solar electricity customers.
On May 7, 2015, the Financial Impact Estimating Conference forwarded to
the Attorney General the following financial impact statement regarding the
initiative petition:
Based on current laws and administration, the amendment will result
in decreased state and local government revenues overall. The timing
and magnitude of these decreases cannot be determined because they
are dependent on various technological and economic factors that
cannot be predicted with certainty. State and local governments will
incur additional costs, which will likely be minimal and partially
offset by fees.
The sponsor submitted a brief supporting the validity of the financial impact
statement and its compliance with section 100.371(5), Florida Statutes. Florida
Power & Light Company, jointly with Duke Energy Florida, Gulf Power
Company, and Tampa Electric Company, also submitted a brief agreeing that the
financial impact statement complied with section 100.371(5), Florida Statutes. We
begin by setting forth our standard of review for this citizen initiative proposal.
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II. STANDARD OF REVIEW
This Court applies a deferential standard of review to the validity of a citizen
initiative petition. In re Advisory Op. to the Att’y Gen. re Use of Marijuana for
Certain Med. Conditions, 132 So. 3d 786, 794 (Fla. 2014). We are reluctant to
interfere with Florida citizens’ right to formulate “their own organic law” by self-
determination. Id. (quoting Advisory Op. to Att’y Gen. re Right to Treatment &
Rehab. for Non-Violent Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002)). Thus,
we abide by the principle that “[s]overeignty resides in the people and the electors
have a right to approve or reject a proposed amendment to the organic law of this
State, limited only by those instances where there is an entire failure to comply
with a plain and essential requirement.” Id. (quoting Pope v. Gray, 104 So. 2d 841,
842 (Fla. 1958)).
As noted earlier, in determining the validity of an amendment to the
constitution arising from a citizen’s initiative, this Court examines two
requirements: (1) the ballot title and summary must satisfy the requirements of
section 101.161(1), Florida Statutes; and (2) the proposed amendment must satisfy
the single-subject requirement of article XI, section 3, of the Florida Constitution.
Use of Marijuana for Certain Med. Conditions, 132 So. 3d at 795. As this Court
has stated:
In addressing these two issues, our inquiry is governed by
several general principles. First, we do not consider or address the
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merits or wisdom of the proposed amendment. Second, “[t]he Court
must act with extreme care, caution, and restraint before it removes a
constitutional amendment from the vote of the people.” Specifically,
where citizen initiatives are concerned, “[the] Court has no authority
to inject itself in the process, unless the laws governing the process
have been ‘clearly and conclusively’ violated.” Hence, our review is
narrow and limited to the two questions set out above.
In re Advisory Op. to the Att’y Gen. re Fairness Initiative Requiring Legislative
Determination that Sales Tax Exemptions & Exclusions Serve a Pub. Purpose, 880
So. 2d 630, 633 (Fla. 2004) (citations omitted). Thus, without considering or
addressing the merits or wisdom of the proposed amendment, we turn first to
determine if the amendment meets the single-subject requirement of article XI,
section 3, of the Florida Constitution.
III. SINGLE-SUBJECT REQUIREMENT
The single-subject requirement is at its base a “rule of restraint” designed to
protect Florida’s organic law from “precipitous and cataclysmic change.” In re
Advisory Op. to Att’y Gen.—Save Our Everglades, 636 So. 2d 1336, 1339 (Fla.
1994). The single-subject requirement protects against two things. First, it
prevents “logrolling,” in which several separate issues are combined in a single
initiative to attempt to secure approval of not only a popular issue but also “an
otherwise unpopular issue” that is included in the same proposal. See Use of
Marijuana for Certain Med. Conditions, 132 So. 3d at 795 (quoting Save Our
Everglades, 636 So. 2d at 1339). Of the several different ways in which the
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Florida Constitution provides for amendment, “[o]nly the initiative process in
section 3 contains the restrictive language that ‘any such revision or amendment
shall embrace but one subject and matter directly connected therewith.’ ” Save
Our Everglades, 636 So. 2d at 1339 (quoting Fine v. Firestone, 448 So. 2d 984,
988 (Fla. 1984)). The inclusion of the single-subject requirement recognizes that
only the citizen’s initiative process—as contrasted with the legislative joint
resolution process, the constitutional revision commission process, or the
constitutional convention process—lacks the “filtering” process for carefully
considered drafting and the public hearing process contained in those other
methods of amendment or revision. Save Our Everglades, 636 So. 2d at 1339
(quoting Fine, 448 So. 2d at 988). For these reasons, this Court is called upon to
provide careful scrutiny of the initiative proposal to ensure that it meets the
constitutional single-subject requirement.
The opponents of the initiative in this case contend, first, that the proposed
amendment violates the single-subject requirement by impermissibly logrolling
several separate subjects, some of which certain voters may view favorably and
others of which those same voters may view unfavorably, thus forcing the voters to
choose whether to accept an unfavorable provision in order to secure another
desired one. To comply with the single-subject requirement, and to avoid this
impermissible logrolling, a citizen initiative amendment “must manifest ‘a logical
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and natural oneness of purpose.’ ” Advisory Op. to Att’y Gen. re Fla. Marriage
Prot. Amend., 926 So. 2d 1229, 1233 (Fla. 2006). We have explained:
In addressing the issue of logrolling, this Court determines whether
the amendment manifests a “logical and natural oneness of purpose.”
Advisory Op. to Att’y Gen. re Fla.’s Amendment to Reduce Class
Size, 816 So. 2d 580, 582 (Fla. 2002) (quoting Fine v. Firestone, 448
So. 2d 984, 990 (Fla. 1984)). A proposed amendment meets this test
when it “may be logically viewed as having a natural relation and
connection as component parts or aspects of a single dominant plan or
scheme. Unity of object and plan is the universal test.” Fine, 448 So.
2d at 990 (quoting City of Coral Gables v. Gray, 154 Fla. 881, 19 So.
2d 318, 320 (1944)).
Advisory Op. to Att’y Gen. re: Indep. Nonpartisan Comm’n to Apportion
Legislative & Cong. Dists. Which Replaces Apportionment by Legislature, 926 So.
2d 1218, 1225 (Fla. 2006).
Although the proposed amendment contains a number of provisions—some
dealing with economic barriers to supply of solar electricity and others dealing
with government regulation with respect to rates, service, or territory—the logical
and natural oneness of purpose of the amendment remains the same. The various
provisions are all directly connected to the amendment’s purpose—and its
dominant plan or scheme—and, thus, the proposed amendment does not engage in
impermissible logrolling. The proposed amendment states in its “PURPOSE AND
INTENT” section that regulatory and economic barriers to be prohibited include:
rate, service and territory regulations imposed by state or local
government on those supplying such local solar electricity, and
imposition by electric utilities of special rates, fees, charges, tariffs, or
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terms and conditions of service on their customers consuming local
solar electricity supplied by a third party that are not imposed on their
other customers of the same type or class who do not consume local
solar electricity.
The remainder of the proposed amendment spells out in greater detail what barriers
and regulations will be prohibited and what barriers will be limited by the
amendment in carrying out the stated purpose and intent. This amendment
accomplishes a “oneness of purpose,” while also providing that the exemptions
from regulation do not include reasonable health, safety, and welfare regulations
that do not prohibit or have the effect of prohibiting the supply of solar-generated
electricity as allowed by the amendment.
We conclude that the proposed amendment has a “logical and natural
oneness of purpose” to remove legal and regulatory barriers to local solar
electricity suppliers who seek to supply and sell up to 2 megawatts of solar
generated electricity to purchasers on the same or contiguous property to the
supplier. This is the dominant plan or scheme that the various provisions of the
amendment accomplish by exempting such a local solar electricity supplier from
state or local government regulation with respect to rates, service, or territory, and
by removing or limiting other regulatory barriers to provision of the solar
generated electricity provided for in the proposal. The provisions “encompass[] a
single plan and merely enumerate[] various elements necessary to accomplish the
plan.” Use of Marijuana for Certain Med. Conditions, 132 So. 3d at 796 (quoting
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Advisory Op. to Att’y Gen. re Standards for Establishing Legislative Dist.
Boundaries, 2 So. 3d 175, 182 (Fla. 2009)).
We recognize that “enfolding disparate subjects within the cloak of a broad
generality does not satisfy the single-subject requirement.” Advisory Op. to Att’y
Gen.—Restricts Laws Related to Discrimination, 632 So. 2d 1018, 1020 (Fla.
1994) (quoting Evans v. Firestone, 457 So. 2d 1351, 1353 (Fla. 1984)). In Evans,
we struck an initiative from the ballot that proposed to establish citizens’ rights in
civil actions for several reasons, including that one of the provisions was not
“directly connected” to the other two provisions. 457 So. 2d at 1354. However,
we find that the various provisions of the proposed amendment in this case are not
“disparate subjects” and instead are directly connected to the purpose of the
amendment and to each other.
The second question for our determination is whether the proposal violates
the single-subject requirement by substantially altering or performing the functions
of multiple branches of state government. See Advisory Op. to Att’y Gen. re Fla.
Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or
Magnetic Levitation Sys., 769 So. 2d 367, 369 (Fla. 2000). We conclude that the
amendment in this case does not run afoul of this requirement. We have explained
that “[a]lthough a proposal may affect several branches of government and still
pass muster, no single proposal can substantially alter or perform the functions of
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multiple branches.” Save Our Everglades, 636 So. 2d at 1340 (footnote omitted).
See also Advisory Op. to Att’y Gen. re Funding of Embryonic Stem Cell Research,
959 So. 2d 195, 198 (Fla. 2007). As we reiterated in Save Our Everglades, “We
have found proposed amendments to meet the single-subject requirement even
though they affected multiple branches of government.” 636 So. 2d at 1340 n.1
(emphasis added) (quoting Advisory Op. to Att’y Gen.—Limited Political Terms
in Certain Elective Offices, 592 So. 2d 225, 227 (Fla. 1991)).
The opponents contend that the proposal is invalid because it would impact
both state and local governments by removing some regulatory authority from
both, by establishing state policy relating to solar electricity supply, and by
limiting the Legislature’s authority. However, the opponents do not indicate how
this amendment will interfere with or take over the state’s energy policy.
Moreover, a proposed amendment will not fail simply because it affects several
branches of government; rather, it will fail if the proposal “substantially alters or
performs the functions of multiple branches” of government. Use of Marijuana for
Certain Med. Conditions, 132 So. 3d at 795. The amendment, to fail this test, must
alter or perform the functions of multiple branches of government and thereby
cause “precipitous” or “cataclysmic” changes to the government structure. See
Live Human Embryo, 959 So. 2d at 213 (citing Advisory Op. to Att’y Gen. re
Additional Homestead Tax Exemption, 880 So. 2d 646, 650 (Fla. 2000)).
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Although we recognize that the proposed amendment would limit the
authority of the Legislature and other governmental entities to regulate in certain
areas relating to the non-utility solar providers created under the amendment, we
conclude that the amendment does not substantially alter or perform the functions
of multiple branches of government producing “precipitous” or “cataclysmic”
changes. For the reasons set forth above, we hold that the proposed citizen
initiative amendment does not violate the single-subject requirement of article XI,
section 3, of the Florida Constitution. We turn next to the question of whether the
ballot title and summary comply with the requirements of section 101.161, Florida
Statutes.
IV. BALLOT TITLE AND SUMMARY
Section 101.161(1), Florida Statutes, provides in pertinent part that the
substance of the amendment shall be “printed in clear and unambiguous language
on the ballot” and that the “summary of the amendment . . . shall be an explanatory
statement, not exceeding 75 words in length, of the chief purpose of the measure.”
This “clear and unambiguous” requirement “ensures that a voter has notice of the
subject matter and issues addressed by the proposed amendment.” Live Human
Embryo, 959 So. 2d at 213. We must also consider the question of whether the
language of the ballot title and summary will affirmatively be misleading. Use of
Marijuana for Certain Med. Conditions, 132 So. 3d at 797. Thus, the ballot
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summary must set forth the “chief purpose of the amendment” and may not
mislead the voter. See Live Human Embryo, 959 So. 2d at 213-14.
The ballot title and summary must each “stand on its own merits and not be
disguised as something else.” Askew v. Firestone, 421 So. 2d 151, 156 (Fla.
1982). The ballot title and summary may not “ ‘fly under false colors’ or ‘hide the
ball’ with regard to the true effect of an amendment.” Fla. Dep’t of State v.
Slough, 992 So. 2d 142, 147 (Fla. 2008) (quoting Armstrong v. Harris, 773 So. 2d
7, 16 (Fla. 2000)). The purpose of this requirement is “to assure that the electorate
is advised of the true meaning, and ramifications, of an amendment.” Askew, 421
So. 2d at 156. However, there is no requirement that the ballot summary explain
its complete terms “at great and undue length.” Right to Treatment & Rehab. for
Non-Violent Drug Offenses, 818 So. 2d at 498 (quoting Metro. Dade Cty. v.
Shiver, 365 So. 2d 210, 213 (Fla. 3d DCA 1978)). We have noted that such a
requirement would actually hamper rather than aid the intelligent exercise of the
voting privilege. Id.
After careful scrutiny of the text of the ballot title and summary, and the text
of the amendment, and after consideration of all the arguments of counsel, we
conclude that the ballot title and summary in this case do not run afoul of these
requirements. Without considering the merits of the measure, we find that the title
and summary clearly and unambiguously inform the voter that the amendment will
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prevent government and electric utilities from imposing regulatory barriers to
supplying local solar electricity up to 2 megawatts to customers at the same or
contiguous property. The summary explains that the regulations which will be
limited or prevented include government regulation of local solar electricity
suppliers’ rates, service and territory, and unfavorable electricity rates, charges, or
terms of service. Although the phrase “unfavorable electricity rates, charges, or
terms of service” is not defined in the ballot summary, it can fairly be said to
reflect that portion of the amendment that prohibits an electric utility from
imposing on a local solar electricity supplier’s customer “any special rate, charge,
tariff, classification, term or condition of service, or utility rule or regulation, that
is not also imposed on other customers of the same type or class that do not
consume electricity from a local solar electricity supplier.” Thus, the phrase is not
ambiguous or misleading.
By reading the ballot title and summary, the voter will be informed that
government regulations—by both local government and state government—which
would impede or impair the provision of local solar electricity will be limited, and
that some such regulations will be completely prevented. Further, the summary
informs the voter that under the amendment, the solar electricity supply will be a
“non-utility” supply. This informs the voter that such a provider will not be
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subject to at least some of the regulations that currently apply to a public “utility.”2
Again, without considering the merits of such changes in the law governing
utilities, we must conclude the ballot title and summary are not ambiguous or
misleading, and do inform the voter of the changes that would be implemented
under the amendment.
As we have said many times, our “duty is to uphold the proposal unless it
can be shown to be ‘clearly and conclusively defective.’ ” Use of Marijuana for
Certain Med. Conditions, 132 So. 3d at 795 (quoting In re Advisory Op. to Att’y
Gen. re Florida’s Amend. to Reduce Class Size, 816 So. 2d 580, 582 (Fla. 2002));
see also Advisory Op. to Att’y Gen. re Med. Liab. Claimant’s Comp. Amend., 880
So. 2d 675, 676 (Fla. 2004). We conclude that this high threshold has not been
met. The proposal has not been shown to be “clearly and conclusively defective”
in any respect. For these reasons, the ballot title and summary are approved for
placement on the ballot. However, we must also determine if the Financial Impact
Statement meets the requirements of article XI, section 5(c), Florida Constitution,
and section 100.371(5)(a), Florida Statutes.
2. Florida law currently defines “public utility” to be “every person,
corporation, partnership, association, or other legal entity . . . . supplying electricity
. . . to or for the public within this state.” § 366.02(1), Fla. Stat. (2014). However,
that definition excludes certain cooperatives, municipalities, and others.
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V. FINANCIAL IMPACT STATEMENT
The Florida Constitution mandates that our advisory opinion address the
Financial Impact Statement. See Use of Marijuana for Certain Med. Conditions,
132 So. 3d at 809. Article XI, section 5(c), of the Florida Constitution, states that
“[t]he legislature shall provide by general law, prior to the holding of an election
pursuant to this section, for the provision of a statement to the public regarding the
probable financial impact of any amendment proposed by initiative pursuant to
section 3” of article XI of the Constitution. The Legislature implemented this
mandate by enactment of section 100.371(5)(a), Florida Statutes, which requires
that within forty-five days after receipt by the Secretary of State of a proposed
amendment to the state constitution by initiative petition, “the Financial Impact
Estimating Conference shall complete an analysis and financial impact statement
to be placed on the ballot of the estimated increase or decrease in any revenues or
costs to state or local governments resulting from the proposed initiative.”
§ 100.371(5)(a), Fla. Stat. The Financial Impact Statement must be clear and
unambiguous, and no more than 75 words in length. § 100.371(5)(b)2., Fla. Stat.
Our review of the Financial Impact Statement is narrow and only addresses
“whether the statement is clear, unambiguous, consists of no more than seventy-
five words, and is limited to address the estimated increase or decrease in any
revenues or costs to the state or local governments.” Advisory Op. to Att’y Gen. re
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Referenda Required for Adoption & Amend. of Local Gov’t Comprehensive Land
Use Plans, 963 So. 2d 210, 214 (Fla. 2007). We conclude that the Financial
Impact Statement in this case meets these requirements. As noted earlier, the
Financial Impact Statement for the proposed amendment states:
Based on current laws and administration, the amendment will
result in decreased state and local government revenues overall. The
timing and magnitude of these decreases cannot be determined
because they are dependent on various technological and economic
factors that cannot be predicted with certainty. State and local
governments will incur additional costs, which will likely be minimal
and partially offset by fees.
The Financial Impact Statement is sixty-two words in length, which complies with
the statutory word limit. The statement addresses only the estimated increase or
decrease in revenues and costs to state and local governments. It clearly and
unambiguously states that there will be decreased revenues for state and local
governments and that the fees may offset a portion of any increased costs. The
statement also clearly and unambiguously explains that timing and magnitude of
the decreased revenues could not be determined because of various technological
and economic factors. “[T]he financial impact statement is necessarily indefinite
but not unclear or ambiguous.” Advisory Op. to Att’y Gen. re Fla. Growth Mgmt.
Initiative Giving Citizens the Right to Decide Local Growth Mgmt. Plan Changes,
2 So. 3d 118, 124 (Fla. 2008). Further, the fact that the Financial Impact
Estimating Conference is unable to determine the actual financial impact does not
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render the Financial Impact Statement invalid. See Florida Marriage Prot. Amend.,
926 So. 2d at 1241. For these reasons, we hold that the Financial Impact Statement
meets the requirements of law.
VI. CONCLUSION
For the reasons set forth above, we conclude that the initiative petition and
ballot title and summary meet the legal requirements of article XI, section 3,
Florida Constitution, and section 101.161(1), Florida Statutes. Further, the
Financial Impact Statement complies with section 100.371(5), Florida Statutes.
Therefore, we approve the proposed amendment and Financial Impact Statement
for placement on the ballot.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and PERRY,
JJ., concur.
POLSTON, J., concurs in part and dissents in part with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
POLSTON, J., concurring in part and dissenting in part.
I concur with the majority’s conclusion that the initiative in this case does
not violate the single-subject requirement. However, because I conclude that the
ballot summary is confusing and does not accurately describe the scope of the
proposed amendment, I would not approve the initiative for placement on the
ballot.
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Section 101.161(1), Florida Statutes (2014), provides the following clarity
requirements for the ballot summary:
The ballot summary of the amendment or other public measure shall
be an explanatory statement, not exceeding 75 words in length, of the
chief purpose of the measure. . . .
The purpose of these requirements is “to provide fair notice of the content of the
proposed amendment so that the voter will not be misled as to its purpose, and can
cast an intelligent and informed ballot.” Advisory Op. to Att’y Gen. re Term
Limits Pledge, 718 So. 2d 798, 803 (Fla. 1998).
This Court’s review of the validity of a ballot title and summary under
section 101.161(1) involves two inquiries:
First, the Court asks whether “the ballot title and summary . . . fairly
inform the voter of the chief purpose of the amendment.” [Advisory
Op. to Att’y Gen. re] Right to Treatment and Rehabilitation for Non-
Violent Drug Offenses, 818 So. 2d [491, 497 (Fla. 2002)]. Second,
the Court asks “whether the language of the title and summary, as
written, misleads the public.” Advisory Op. to Att’y Gen. re Right of
Citizens to Choose Health Care Providers, 705 So. 2d 563, 566 (Fla.
1998).
Advisory Op. to the Att’y Gen. re Fairness Initiative Requiring Leg. Determination
That Sales Tax Exemptions & Exclusions Serve a Public Purpose, 880 So. 2d 630,
635-36 (Fla. 2004). As this Court has explained, “a ballot title and summary
cannot ‘fly under false colors’ or ‘hide the ball’ with regard to the true effect of an
amendment.” Fla. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008).
“When the summary of a proposed amendment does not accurately describe the
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scope of the text of the amendment, it fails in its purpose and must be stricken.”
Term Limits Pledge, 718 So. 2d at 804.
Here, the ballot summary is confusing and does not accurately inform the
voter of the true effect of the proposed amendment. For example, the ballot
summary states that the proposed amendment “[l]imits or prevents government and
electric utility imposed barriers to supplying local solar electricity.” However, this
language does not clearly explain to the voter the scope of the limitation to
government regulation involved. In fact, the text of the amendment only permits
“health, safety and welfare regulations, including, but not limited to, building
codes, electrical codes, safety codes and pollution control regulations” if such
regulations “do not prohibit or have the effect of prohibiting the supply of solar-
generated electricity by a local solar electricity supplier.” Therefore, the proposed
amendment would override any state or local health, safety, or welfare regulation if
(presumably in the sole judgment of the solar electricity supplier) the regulation
would “have the effect of prohibiting the supply of solar-generated electricity.”
For example, the Department of Environmental Protection and the water
management districts could not enforce laws and regulations designed to protect
wildlife habitat, wetlands, and water resources if they would “have the effect of
prohibiting” the siting of a local solar electricity generating facility within areas
where such protections would apply. Likewise, local governments would be
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prohibited from enforcing wind resistance ordinances if a solar supplier claimed its
facilities could not economically meet those standards. Even local government
land development codes, architectural review board regulations, deed covenants,
and condominium and homeowners’ association restrictions would be
unenforceable if deemed prohibitively problematic by a solar supplier.
The ballot summary also misleads the voter by stating that the proposed
amendment addresses “non-utility” electric providers when, under current law, all
electric providers are regulated as public utilities. Specifically, the ballot summary
states that “[l]ocal solar electricity supply is the non-utility supply of solar
generated electricity from a facility rated up to 2 megawatts to customers at the
same or contiguous property as the facility.” The summary does not inform the
voter that this would be a change in the law, and the text of the proposed
amendment is what redefines “electric utility” to exclude “a local solar electricity
supplier.”
By redefining “electric utility,” the proposed amendment removes solar
suppliers from the jurisdiction of the Public Service Commission (PSC) and the
protections the PSC provides. The PSC is a separate body with comprehensive
regulatory authority, and it supervises and regulates public utilities to ensure
affordable rates, safe practices, and quality service throughout the State. See ch.
366, Florida Statutes (2014). The ballot summary does not inform the voter that
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the proposed amendment creates a new and limited class of electricity sellers that
would not be subject to PSC regulation with respect to rates, service, or territory.
These solar suppliers, unregulated by the PSC, would also (as explained above) be
exempt from reasonable health, safety, and welfare regulations if they would “have
the effect of prohibiting the supply of solar-generated electricity.” Further, the
costs of maintaining the regulated facilities to be ready to serve solar customers
when solar power is limited or unavailable will likely be shifted to the remaining
customers who do not contract with the unregulated solar suppliers.
Finally, the confusing language in the ballot summary leads the voter to
believe that this initiative is about someone who owns a small house or small
business with a solar panel on the roof and wants to sell electricity on a small-
scale. However, according to the Florida Electric Cooperatives Association, a
single local solar generating facility capable of generating 2 megawatts of
electricity would span over 12 acres and could serve approximately 714 customers.
The ballot summary does not provide notice to the voter that this proposed
amendment provides for this scale of completely unregulated electricity
generation.
Accordingly, because the ballot summary is confusing and does not convey
the scope of the proposed amendment, I would not approve the initiative for
placement on the ballot. I respectfully concur in part and dissent in part.
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Two Cases:
Original Proceeding – Advisory Opinion – Attorney General
Pamela Jo Bondi, Attorney General, Alfred Lagran Saunders, Assistant Attorney
General, Allen C. Winsor, Solicitor General, and Rachel Erin Nordby, Deputy
Solicitor General, Tallahassee, Florida,
for Petitioner
Robert Lowry Nabors, Gregory Thomas Stewart, and William Clark Garner of
Nabors, Giblin & Nickerson, P.A., Tallahassee, Florida,
for Floridians for Solar Choice, Inc., Sponsor
Stephen H. Grimes and David Bruce May, Jr. of Holland & Knight LLP,
Tallahassee, Florida, and William Bartow Willingham and Michelle Lynn Hershel,
Tallahassee, Florida, on behalf of Florida Electric Cooperatives Association, Inc.;
Raoul G. Cantero, III and Thomas Neal McAliley of White & Case LLP, Miami,
Florida, on behalf of Florida Chamber of Commerce; Linda Loomis Shelley of
Buchanan, Ingersoll & Rooney, PC, Tallahassee, Florida, and Harry Morrison, Jr.,
Tallahassee, Florida, and Dan R. Stengle of Dan R. Stengle, Attorney, LLC,
Tallahassee, Florida, and Jody Lamar Finklea and Amanda L. Swindle,
Tallahassee, Florida, on behalf of Florida League of Cities, Inc. and Florida
Municipal Electric Association, Inc.; Craig Edward Leen, City Attorney, Coral
Gables, Florida, on behalf of the City of Coral Gables; Floyd Robert Self of Berger
Singerman LLP, Tallahassee, Florida, and Javier Luis Vazquez of Berger
Singerman LLP, Miami, Florida, on behalf of the City of Coral Gables and Florida
State Hispanic Chamber of Commerce; Martin Stephen Turner of Broad and
Cassel, Tallahassee, Florida, on behalf of Florida Chapter of the National Congress
of Black Women, Inc.; William Christopher Browder, Vice President and General
Counsel, and Terrie Louise Tressler, Deputy General Counsel, Orlando, Florida, on
behalf of Orlando Utilities Commission; Susan Leslie Forbes Clark and Donna
Elizabeth Blanton of the Radey Law Firm, Tallahassee, Florida, on behalf of
National Black Chamber of Commerce; Major Best Harding and James Dawson
Beasley of Ausley & McMullen, Tallahassee, Florida, on behalf of Tampa Electric
Company; Jeffrey Alan Stone and Terrie Springer Didier of Beggs & Lane,
R.L.L.P., Pensacola, Florida; John Todd Burnett, Deputy General Counsel, Saint
Petersburg, Florida, on behalf of Duke Energy Florida; Kenneth Bradley Bell of
Gunster, Yoakley & Stewart, P.A., Tallahassee, Florida, on behalf of Gulf Power
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Company; Barry Scott Richard of Greenberg Traurig, P.A., Tallahassee, Florida,
and Alvin Bruce Davis of Squire Patton Boggs, Miami, Florida, on behalf of
Florida Power and Light Company; and Carlos Genaro Muñiz of McGuireWoods
LLP, Tallahassee, Florida, on behalf of Florida Council for Safe Communities,
as Opponents
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