Judges: Bill McCollum, Attorney General
Filed Date: 1/7/2009
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Godwin:
As ex officio clerk to the Board of County Commissioners, 1 you ask substantially the following question:
May the small county surtax authorized by section
212.055 (3), Florida Statutes, and enacted by a unanimous vote of the county commission be pledged to secure a loan for a water and wastewater treatment facility?
You state that on April 10, 1990, a referendum approved Ordinance 76-90, imposing a one-cent additional sales tax for a period of fifteen years. The general description of the projects to be funded by the proceeds included: road and bridge construction; and construction at the county's landfill, including recycling facilities and acquisition of equipment with a useful life in excess of five years for handling solid waste and recycling.
According to the materials you have provided, on November 4, 2004, the Hamilton County Board of County Commissioners unanimously adopted the levy of the one-percent sales surtax authorized in section
Section
Paragraph (d) of subsection (3) provides:
"1. If the surtax is levied pursuant to a referendum, the proceeds of the surtax and any interest accrued thereto may be expended by the school district or within the county and municipalities within the county, or, in the case of a negotiated joint county agreement, within another county, for the purpose of servicing bond indebtedness to finance, plan, and construct infrastructure and to acquire land for public recreation or conservation or protection of natural resources. However, if the surtax is levied pursuant to an ordinance approved by an extraordinary vote of the members of the county governing authority, the proceeds and any interest accrued thereto may be used for operational expenses of any infrastructure or for any public purpose authorized in the ordinance under which the surtax is levied." (e.s.)
Clearly, there is a distinction between the use of funds to pay operational expenses of infrastructure and any public purpose authorized in the ordinance and the use of such funds to service indebtedness. While the former requires only an extraordinary vote of the county's governing body, the latter requires referendum approval. This reading is supported by paragraph (e) of the statute recognizing that a county receiving proceeds following a referendum may pledge the proceeds for the purpose of servicing new bond indebtedness.5
The statute speaks to pledging the proceeds for servicing bond indebtedness, while you have posed the question in terms of securing a loan. In Attorney General Opinion 92-08, this office was asked whether the surtax could be used to service bonds that would be issued to refund notes issued prior to referendum approval of the surtax. In the opinion, it was noted that the city had issued notes, rather than bonds, but that both are debts that would be subject to the restrictions in section
When a statute directs the manner in which something is to be done, it acts as a prohibition against its being done in any other manner.6 Thus, it would appear that surtax revenues may not be pledged to secure a loan, absent referendum approval.
Accordingly, it is my opinion that the surtax authorized by section
Sincerely,
Bill McCollum Attorney General
BM/tals
"A school district, county, or municipality that receives proceeds under this subsection following a referendum may pledge the proceeds for the purpose of servicing new bond indebtedness incurred pursuant to law. Local governments may use the services of the Division of Bond Finance pursuant to the State Bond Act to issue any bonds through the provisions of this subsection. A jurisdiction may not issue bonds pursuant to this subsection more frequently than once per year. A county and municipality may join together to issue bonds authorized by this subsection." (e.s.)