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Agenda 12/09/2025 Item #10A (Directing the County Manager to begin public education regarding the purpos and process of levying & imposing the 6th cent Tourist Development Tax)12/9/2025 Item # 10.A ID# 2025-4878 Executive Summary Recommendation to direct the County Manager to begin public education about the purpose and process of levying and imposing the 6th cent Tourist Development Tax, and to authorize the expenditure of up to $100,000 for this purpose. OBJECTIVE: To educate the public as to the purpose and process of imposing the 6th cent Tourist Development Tax. CONSIDERATIONS: On August 12, 2025, the Board of County Commissioners approved an ordinance for the purpose of levying and imposing the 6th cent Tourist Development Tax, subject to the approval of the voters of Collier County at the general election on November 3, 2026. The Tourist Development Tax is a tax on the total rental amount collected from every short-term rental (6 months or less). Pursuant to Section 125.0104, Fla. Stat., Collier County qualifies as a high-impact tourism county, which allows Collier County to impose an additional 1 cent on the current 5 cent Tourist Development Tax. A county is a high-impact tourism county after the Department of Revenue has certified to such county that the sales subject to the tax levied pursuant to this section exceeded $600 million during the previous calendar year as defined in Section 125.0104(3)(m)2, Fla. Stat. The Department of Revenue has confirmed that Collier County is qualified. The process started with the Board of County Commissioners enacting the Ordinance to propose to levy the tax, subject to voter approval at the next general election scheduled for November 3, 2026. The final text of the referendum in English and Spanish is due by noon on June 12, 2026, which allows both the Board and the Supervisor of Elections sufficient time to place it on the ballot. If the referendum is approved, the effective date of the levy and imposition of the tax authorized would be January 1, 2027. The 6th cent will be used to fund promotion, related infrastructure improvements, and other authorized uses as set forth in Section 125.0104, Fla. Stat. The purpose of this Executive Summary is to authorize the County Manager to educate the public about the process and purpose of this 6th cent Tourist Development Tax. FISCAL IMPACT: Not to exceed $100,000. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this action. LEGAL CONSIDERATIONS: This item has been reviewed by the County Attorney. Florida Statutes Sec. 106.113 (Expenditures by local governments.) provides as follows: Page 1886 of 9661 12/9/2025 Item # 10.A ID# 2025-4878 (History.-s. 1, ch. 2009-125.) Included in the back-up are two opinions from the Division of Elections (10-06 and 12-05) which discuss this statute and are included and should be relied upon by staff as guidance, should the Board approve this request. The Summary of the Opinion 10-06 states as follows: "Section 106.113(2), Florida Statutes, prohibits a "local government or a person acting on behalf of local government" from expending or authorizing the expenditure of public funds for a "political advertisement" or an "electioneering communication" that concerns a (referendum)…Section 106.113, Florida Statutes, is not violated for an expenditure of public funds if the communication only provides factual information. Factual information means verifiable actualities, not subjective, qualitative statements or comments. Unless the prohibitions in section 106.113(2) are applicable, an elected official of local government may express an opinion on any issue at any time. A non-elected local government official or any other person who is acting on behalf of local government may do likewise if he or she does not violate the prohibitions in section 106.113(2). No violation of section 106.113, Florida Statutes (2009), occurs if an opinion about an issue or referendum is stated in direct conversation." Opinion 12-05 provides further context relating to the definition of “political advertisement”: “[T]he definition of ‘political advertisement’ requires that that advertisement expressly advocate the election and defeat of a candidate or approval or rejection of an issue. Therefore, section 106.113’s prohibition is that a local government or a person acting on behalf of local government may not expend or authorize the expenditure of, and a person or group may not accept, public funds for an advertisement that expressly advocates the approval or rejection of an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors.” RECOMMENDATION(S): To direct the County Manager to begin public education about the process of levying and imposing the 6th cent Tourist Development Tax, and to authorize the expenditure of up to $100,000 for this purpose. PREPARED BY: Burt L. Saunders, Chair, Commissioner District 3 ATTACHMENTS: 1. Ordinance 2025-33 Page 1887 of 9661 12/9/2025 Item # 10.A ID# 2025-4878 2. DE 10-06 3. DE 12-05 Page 1888 of 9661 ORDINANCE NO. 2025 - 3 3 AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, CALLING FOR A REFERENDUM AT THE GENERAL ELECTION ON NOVEMBER 3, 2026 IN COLLIER COUNTY TO CONSIDER AN ADDITIONAL ONE PERCENT LEVY OF TOURIST DEVELOPMENT TAX FOR A TOTAL SIX PERCENT TAX TO BE USED FOR TOURISM PROMOTION,RELATED INFRASTRUCTURE IMPROVEMENTS, AND OTHER AUTHORIZED USES; PROVIDING THE OFFICIAL BALLOT LANGUAGE; PROVIDING FOR CONFLICT AND SEVERABILITY; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, Section 125.0104, Florida Statutes, provides for the levy of a local option tourist development tax by any county; and WHEREAS,the Board,through the adoption of Ordinance No. 2017-35,increased the total levy of tourist development tax to 5 percent on short term rentals within the County; and WHEREAS, the Board, by referendum, desires to impose an additional 1% tourist development tax as the 6t1i percent to be used for tourism promotion, related infrastructure improvements, and other authorized uses; and WHEREAS, the State of Florida Department of Revenue has certified that Collier County qualifies as a high-impact tourism county as defined in Section 125.0104(3)(m), Florida Statutes, and is authorized to impose this 6th percent tourist development tax; and WHEREAS, the proposed Ordinance and Referendum language were presented to and recommended for approval by the Collier County Tourist Development Council. NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA,that: SECTION ONE: TOURIST DEVELOPMENT TAX Section One:Purpose This ordinance is adopted pursuant to the authority and requirements of Section 125.0104, Florida Statutes, for the purpose of levying and imposing the 6th percent Tourist Development Tax, subject to approval by voters at the general election on November 3, 2026. It is further the intent of this Ordinance to provide for the use of the receipts of the tax imposed by Ordinance 04-CMG-00002/1346815/l j Words Underlined arc added;Words Siniok-Through are deleted. is Page 1 of 3 Page 1889 of 9661 No. 90-43, as amended, and Ordinance No. 2017-25, as required by Laws of Florida, Chapters 92-175 and 92-204. Section Two: Tourist Development Tax A. Pursuant to Section 125.0104(3)(m), Florida Statutes, the Board of County Commissioners desires to levy and impose an additional 1%tourist development tax (6111 percent) to be collected in the same manner as the first 5% of the tax collected pursuant to this Ordinance with approval of this Ordinance by referendum at the general election on November 3,2026. B. Pursuant to Section 125.0104(3)(m)3, Florida Statutes, the effective date of the levy and imposition of the tax authorized by this Ordinance is the first day of the second month following approval of the Ordinance by referendum which shall be January 1, 2027. Section Three: Uses of Tax Revenues A. The Board may utilize the tourist development tax for all expenditures authorized by law, and all funding allocations of the tourist development tax must be conducted in compliance with Section 125.0104, Florida Statutes. The tax revenues received pursuant to this ordinance shall be used to fund the Collier County Tourist Development Plan which shall be considered by the Board of County Commissioners at a public hearing following approval of the Referendum. The Tourist Development Plan may not be substantially amended except by ordinance enacted by an affirmative vote of a majority plus one additional member of the Board of County Commissioners. B. The tax will be collected as set forth in Collier County's Tourist Development Tax Ordinance No. 2017-35. Section Four: Calling for Referendum Pursuant to applicable Florida Law, including Section 101.161, Florida Statutes, a referendum of qualified electors is hereby called to be held on November 3, 2026, to determine whether or not the levy of the additional one percent Tourist Development Tax shall be levied and collected by Collier County pursuant to Section 125.0104(3)(m), Florida Statutes. Section Five: Ballot Question Pursuant to F.S. § 125.0104,the Board of County Commissioners shall cause to be placed on the ballot at the next general election to be held in the County, the question of the approval or disapproval of this Ordinance imposing the 6th percent, such question to be preceded by an explanatory statement or title as set forth,with such question to appear on the ballot substantially as follows: 04-CMG-00002/1346815/I] Words Underlined are added;Words Struekk-Thretigli are deleted. Page 2 of 3 Page 1890 of 9661 Shall Collier County Ordinance be approved authorizing Collier County to levy and collect an additional one percent Tourist Development Tax from all short-term rentals in order to provide additional revenue to fund promotion, related infrastructure improvements, and other authorized uses as set forth in Section 125.0104, Florida Statutes. FOR TI-IE INCREASE IN THE TOURIST DEVELOPMENT TAX AGAINST THE INCREASE IN THE TOURIST DEVELOPMENT TAX SECTION TWO: CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other ordinance of Collier County or other applicable law, the more restrictive shall apply. If any phrase or portion of the Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion. SECTION THREE: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida. The sections of the Ordinances may be renumbered or relettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word. SECTION FOUR: EFFECTIVE DATE. This Ordinance shall be effective January 1, 2027. PASSED AND DULY ADOPTED by a vote of a majority plus one of the Board of County Commission,} eg llier County, Florida, this 2C day of Av 3 I-, 202.5 . ATTEST:.-' BOARD OF COUNTY COMMISSIONERS C1.YS;TAL K.:KINZEL,..I lerk of the COI,LIER COUNTY, FLORIDA Circuit Court& Comptroljer By:, AV' ByAg# Aricoskairn-- a tm_ puty C i CHAIRMAN t y 1 ir1' Appr v; • 1 , 11 , - -0 legalit I;ig, Jeffre 11• . Kl:tz" Ibis ordinance titc4 wiW all Count Attoi' ey of ito,te's 04f;c :i^- day of " •r-- --- oderiowlodgeenimt of thoi 04-CMG•00002/1 •815/1) rec©ived this . Words Underlined are added;Words Sck-Through arc deleted. tru Page 3 of 3 r , • ( ; Page 1891 of 9661 ti...k-,3/4.Alot ...--,- FLORIDA DEPARTMENT Of STATE RON DESANTIS CORD BYRD Governor Secretary of State September 2, 2025 Crystal K. Kinzel Clerk of Court Collier County 3329 Tamiami Trail E, Suite #401 Naples, FL 34112 Dear Crystal Kinzel, Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your electronic copy of Collier County Ordinance No. 2025-33, which was filed in this office on September 2, 2025. Sincerely, Alexandra Leijon Administrative Code and Register Director AL R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399-0250 Telephone: (850) 245-6270 Page 1892 of 9661 FLORIDA DEPARTMENT 01 STATE o b CHARLIE CRIST DA WN K. ROBERTS Governor Interim Secretary of State June 14,2010 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director Pinellas Suncoast Transit Authority 3201 Scherer Drive St. Petersburg, Florida 33716 RE: DE 10-06 Advertising; Expenditures -Use of Local Government Funds. § 106.113, Florida Statutes. Dear Chairman Johnson, Mr. Crane, and Mr. Garling: This letter responds to a request for an advisory opinion your attorney submitted on your behalf regarding your activities on the Pinellas Suncoast Transit Authority (PSTA). Because you have questions relating to the propriety of political activities you may take under Florida's Election Code, the Division of Elections has authority to issue you an opinion pursuant to section 106.23(2), Florida Statutes (2009). Your attorney states that the PSTA is an independent special district, a political subdivision of the state, and is governed by a IS-member board of directors appointed by Pinellas County and the 24 cities located in the county. The special law creating the PSTA requires 13 members to be elected officials with the remaining two being non-elected officials. Your attorney further relates that Mr. Crane is one of the non-elected members on PSTA 's board of directors, Mr. Garling is the PSTA's Executive Director, and Mayor Johnson, the elected mayor ofIndian Rocks Beach, is the Chairman of PSTA's board of directors. Your attorney poses several questions regarding section 106.113, Florida Statutes (2009), as applied to your positions with the PSTA. Section 106.113 provides: 106.113 Expenditures by local governments.-­ (1) As used in this section, the term: (a) "Local government" means: 1. A county, municipality, school district, or other political subdivision in this R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399-0250 Telephone: (850) 245-6536 • Facsimile: (850) 245-6128 www.dos.state.fl.us Page 1893 of 9661 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director June 14,2010 Page 2 of7 state; and 2. Any department, agency, board, bureau, district, commISSIOn, authority, or similar body of a county, municipality, school district, or other political subdivision of this state. (b) "Public funds" means all moneys under the jurisdiction or control of the local government. (2) A local government or a person acting on behalf of local government may not expend or authorize the expenditure of, and a person or group may not accept, public funds for a political advertisement or electioneering communication concerning an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors. This subsection does not apply to an electioneering communication from a local government or a person acting on behalf of a local government which is limited to factual information. (3) With the exception of the prohibitions specified in subsection (2), this section does not preclude an elected official of the local government from expressing an opinion on any issue at any time. Before addressing your questions, we emphasize that our authority is limited to interpreting chapters 97 through 106, Florida Statutes, entitled "The Florida Election Code." We have no authority to interpret laws regarding the Code of Ethics for Public Officers and Employees or other matters outside our jurisdiction. Therefore, our conclusion that a proposed activity may not violate the Election Code (e.g., use of the PSTA photocopier in expressing an opinion about an issue) does not address whether the activity is permissible under other laws or regulations that may otherwise govern your conduct. I We further note that the answers to your questions primarily rest upon application of relevant definitions in chapter 106, Florida Statutes, to your factual situations. Section 106.113, Florida Statutes (2009), prohibits the PSTA (a "local government") or a person acting on its behalf from expending or authorizing the expenditure of "public funds" for a "political advertisement" (defined in s. 106.011 (17), Florida Statutes (2009)) or an "electioneering communication,,2 1 For example, section 1l0.233(4)(b), Florida Statutes (2009), prohibits employees in the career service from using the authority of their positions to secure support for or oppose any issue in a partisan election. Local governments may have imposed a similar provision on their employees; therefore, local government officials or persons acting on behalf of local government must be aware of any local laws or regulations concerning restrictions on an employee's political activities. 2 Effective May 28, 2010, the definition of "electioneering communication" applies only to certain communications about candidates. The definition does not apply to communications about issues. Ch. 2010-167, § 19, at 18, Laws of Fla. Furthermore, the communication is limited to those that are publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone that refers to or depicts a clearly Page 1894 of 9661 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director June 14,2010 Page 3 of7 (defined in s. 106.011(18), Florida Statutes), that concerns an "issue.,,3 A "political advertisement" requires a "paid expression" in a "communications media" as defined by section 106.011(13), Florida Statutes (2009). Also, a "political advertisement" excludes any expression that is by "the spoken word in direct conversation." §§ 106.011(17), Fla. Stat. (2009). Based on the definitions of "political advertisement" and "electioneering communication," if the opinion is stated in direct conversation, no violation of section 106.113, Florida Statutes (2009), occurs. The bottom-line answer to most of your questions is: The activities at issue are only prohibited if they satisfy the definitions of the terms in section 106.113(2), Florida Statutes. We first address the five questions asked by your attorney that relate to all three of your positions on the PSTA. (1) Does section 106.113 prohibit you from expressing an opinion on any issue or referendum at any time? Section 106.113(3) expressly permits an elected official (e.g., Chairman Johnson) to express an opinion on any issue at any time subject to the limitations of subsection (2). We interpret subsection (3) as an affirmation that elected officials have a right to say which course of action they think best on any issue and to use their offices for that purpose.4 This express statutory affirmation for elected officials does not preclude other persons acting on behalf of local government from expressing any opinion at any time if the statement of the opinion does not violate the prohibition contained in section 106.113(2), Florida Statutes (2009), regarding political advertisements and is not contrary to other laws or regulations governing the conduct of such persons. Because the definition of "electioneering communication" now only applies to candidates and not issues, that portion of the section 106.113 containing a prohibition on any activity that relates to an "electioneering communication concerning an issue, referendum, or identified candidate for office without expressly advocating the election of defeat of a candidate, but which is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate. The communication must be made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate and be targeted to the relevant electorate in the geographic area the candidate would represent if elected. ld. 3 The definition of "issue" in s. 106.011 (7), Florida Statutes (2009), encompasses the other terms listed in section 106.113(2), that is, "referendum, or amendment, including any state question, that is subject to the vote of the electors." 4 See Bill Analysis and Fiscal Impact Statement, Senate Ethics and Elections Committee, SB 216 (March 12, 2009) at 4 (creating section 106.113, Florida Statutes (2009)), quoting People Against Tax Revenue Mismanagement, Inc. v. County ofLeon, 583 So. 2d 1373, 1375 (Fla. 1991) ("Leaders have both a duty and a right to say which course of action they think best, and to make fair use of their offices for that purpose. The people elect governmental leaders precisely for this purpose."). Page 1895 of 9661 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director June 14,2010 Page 4 of7 amendment, including any state question, that IS subject to the vote of the electors" IS superfluous and meaningless. 5 (2) If you are being interviewed by the media about your opinion on an issue or referendum, would you violate section 106.113 if you provided your opinion? Unless the PSTA or person acting on behalf of local government paid for the media to be present or otherwise provided remuneration to the media, answering questions from the media would not constitute a "paid expression" and therefore would not constitute a "political advertisement." Also, because "electioneering communication" does not include communications about an issue, no violation of section 106.113 occurs by answering media questions about your opinion on issues or referenda. (3) Can you provide factual information from PSTA to entities expressing an opinion on any issue or referendum? The definition of "political advertisement" requires a paid expression conslstmg of express advocacy, so providing factual information without expressing a position in support or opposition to the issue would not be a "political advertisement." Again, the definition of "electioneering communication" does not include communications about an issue, so section 106.113, Florida Statutes (2009), is not violated by expending public funds on communications consisting only of factual information. (4) What kind of factual information can you provide --does it include declaratory statements that could be construed as an opinion, such as: "The new tax will improve public transportation in Pinellas County?" The term, "factual information" is not defined in section 106.113(2), Florida Statutes (2009); however, the ordinary dictionary meaning of "factual" is "restricted to or based on fact.,,6 "Fact" is commonly defined as "a thing done; the quality of being actual; something that has actual existence; a piece of information as having· objective reality.,,7 The ordinarl meaning of "information" is "knowledge obtained from investigation, study, or instruction." Based upon these definitions, we interpret the statute to limit your expressions of "factual information" to verifiable actualities, such as: "The new tax will permit the county to purchase 25 buses at a cost of $100,000 each" and not include any kind of subjective, qualitative statement or comment that "The tax will improve public transportation." Even if 25 buses were purchased, additional 5 This result sterns from the newer definition of "electioneering communication" being inserted into law in May 2010 and it being the latest expression of legislative intent regarding what constitutes an electioneering communication. 6 Merriam-Webster Online Dictionary. 7 Id. 8 Id. Page 1896 of 9661 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director June 14,2010 Page 5 of7 criteria would determine whether the additional buses will actually Improve public transportation. (5) If you are using a PSTA photocopier, are you prohibited from making copies that might contain an opinion about an issue or referendum? Section 106.113, Florida Statutes (2009), is violated only if the document(s) photocopied satisfies the definitions of a "political advertisement" or "electioneering communication." Next, we address a question asked about the possible common activities of Mr. Garling, the non­ elected PSTA Executive Director, and Mr. Johnson, the elected Chairman, PSTA. (6) IfMr. Garling and Mr. Johnson are using a telephone provided by PSTA, are they prohibited from expressing an opinion about an issue or referendum? The definition of "communications media," includes the following: "but with respect to telephones, an expenditure shall be deemed to be an expenditure for the use of communications media only if made for the costs of telephones, paid telephonists, or automatic telephone equipment to be used by a candidate or a political committee to communicate with potential voters but excluding any costs of telephones incurred by a volunteer for use of telephones by such volunteer." § 106.011(13), Fla. Stat. (2009). The use of PSTA's ordinary business telephones (cellular or landline) by either Mr. Garling or Mr. Johnson would not be a paid expression in a communications media; therefore, section 106.113 would not prohibit their use of PSTA's telephones to express their opinions about issues. We next address the following questions asked only about the possible activities ofMr. Garling, the non-elected PSTA Executive Director. (7) If Mr. Garling is using a computer provided by PSTA, is he prohibited from expressing an opinion about an issue or referendum? Use of the PSTA's computer would be improper only if what Mr. Garling does on the computer falls within the statutory prohibition in section 106.113(2), Florida Statutes (2009) (e.g., making flyers that constitute a "political advertisement" or "electioneering communication"). If Mr. Garling's use of the computer involves expressing an opinion on the Internet, he should be aware of the definition of "communications media" as it pertains to the Internet: "with respect to the Internet, an expenditure shall be deemed an expenditure for use of communications media only if made for the cost of creating or disseminating a message on a computer information system accessible by more than one person but excluding internal communications of a campaign or of any group." § 106.011(13), Fla. Stat. (2009). We interpret the "cost of creating or disseminating" an Internet message as being a direct cost, for example, paying someone to create an Internet website on which to post the message or paying for a domain name or an email distribution list to disseminate the message. The Internet service provider fees one pays for Page 1897 of 9661 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director June 14,2010 Page 6 of7 Internet service already in existence before dissemination of the message would not satisfy the definition. (8) If Mr. Garling has a vehicle or car allowance provided by PSTA, is he prohibited from using the car to attend a speaking event where he may express an opinion about an issue or referendum? First, if Mr. Garling is not the speaker at the event and merely engages in direct conversation with other attendees about an issue or referendum, his conversation is expressly excluded from the definitions of a "political advertisement" and "electioneering communication." §§ 106.011 (17) and (18), Fla. Stat. (2009). Even if Mr. Garling is the speaker at the event, we reiterate that the prohibition on the use of public funds in section 106.113, Florida Statutes (2009) only pertains to a "political advertisement" and an "electioneering communication." The political advertisement must be made in a "communications media," which means "broadcasting stations, newspapers, magazines, outdoor advertising facilities, printers, direct mail, advertising agencies, the Internet, and telephone companies." § 106.011(13), Fla. Stat. (2009). Making comments as the speaker at a civic club, for example, would not normally satisfy the definition of being made in a "communications media." Also, the definition of "electioneering communication" would not cover communications about issues or referenda. (9) Is Mr. Garling prohibited from providing factual information or his opmlOn to Board members who intend to use the information to make a presentation to others regarding an issue or referendum? Mr. Garling would be prohibited from providing factual information or his opinion to board members only if his factual information or opinion involved the authorization or expenditure of public funds and constituted a "political advertisement" or "electioneering communication" as set forth in section 106.113(2), Florida Statutes (2009). When the Executive Director provides any information to the board members, the board members themselves must thereafter avoid violating section 106.113(2) in making any subsequent presentation. Finally, we address the question asked by your attorney concerning Chairman Johnson, an elected official, and Mr. Crane, a non-elected board member. (l0) Can they use copies made using a photocopier at PSTA to hand out as part of a presentation they make about an issue or referendum? Using a photocopier purchased or leased by PSTA would constitute the use of "public funds;" however, a violation of section 106.113, Florida Statutes (2009), would only occur if the documents or presentation satisfy the definitions of a "political advertisement" or an "electioneering communication." Page 1898 of 9661 Honorable R. B. Johnson, Chairman Don Crane, Member of Board of Directors Tim Garling, Executive Director June 14,2010 Page 70f7 SUMMARY Section 106.113(2), Florida Statutes (2009), prohibits a "local government or a person acting on behalf of local government" from expending or authorizing the expenditure of public funds for a "political advertisement" or an "electioneering communication" that concerns an "issue." The key to interpreting this statutory prohibition is the application of the definitions in chapter 106, Florida Statutes. Because the Legislature changed the definition of an "electioneering communication" in 2010 to include communications only about candidates, the use of "electioneering communication" in section 106.113 "concerning an issue, referendum, or amendment" is meaningless. Section 106.113, Florida Statutes (2009), is not violated for an expenditure of public funds if the communication only provides factual information. Factual information means verifiable actualities, not subjective, qualitative statements or comments. Unless the prohibitions in section 106.113(2) are applicable, an elected official of local government may express an opinion on any issue at any time. A non-elected local government official or any other person who is acting on behalf of local government may do likewise ifhe or she does not violate the prohibitions in section 106.113(2) and if not otherwise prohibited by laws or regulations outside Florida's Election Code. No violation of section 106.113, Florida Statutes (2009), occurs if an opinion about an issue or referendum is stated in direct conversation. Donald 1. Palmer Director, Division of Elections cc: Alan S. Zimmet, Esq. Page 1899 of 9661 FLORIDA DEPARTMENT Or STATE I I RICK SCOTT KENDETZNER Governor Secretary of State May 24,2012 Ms. Dorothy "Dotti" Wynn Chair, 2012 Orange County Charter Review Commission c/o Orange County Comptroller's Office P.O. Box 38 Orlando, Florida 32802 RE: DE 12-05 --Advertising; Expenditures --Use of Local Government Funds. § 106.113 , Florida Statutes. Dear Ms. Wynn : This letter responds to a request for an advisory opinion submitted on behalf of the 2012 Orange County Charter Review Commission by Wade Vose, the Commission's General Counsel. Because the Commission plans to engage in political activity and has questions about compliance with Florida's election laws with respect to campaign finance law with respect to its intended actions, the Division has the authority to issue you an opinion pursuant to section 106.23(2), Florida Statutes (2011). By way of background , your general counsel states that the Charter Review Commission is an independent commission under Orange County government whose purpose is to review the county charter and to place proposed charter amendments on the general election ballot. Historically, the Commission has prepared a voter guide to be mailed to Orange County voters, explaining the Commission's rationale in proposing the charter amendments and educating voters as to the anticipated effects of adopting or not adopting the proposed amendments. Your attorney wants to ensure that the preparation of such a voter guide would not conflict with either section 106.113, Florida Statutes (2011), or its interpretation rendered by the Division in Division ofElections Opinions 10-06 and 10-07 (June 14, 2010). Section 106 .113, Florida Statutes (2011), provides: 106.113 Expenditures by local governments.-­ (1) As used in this section , the term: R. A. Gray Building • 500 South Bronough Street • Tallahassee, Florida 32399-0250 Telephone: (850) 245-6500 • Facsimile: (850) 245-6125 www.dos.state.fl.us Commemorating 500 years of Florida history www.fla500.com VIVA flORIDA ~OO . VIVA flORIDA ~OO. Page 1900 of 9661 Ms. Dorothy "Dotti" Wynn May 24,2012 Page 2 of4 (a) "Local government" means: 1. A county, municipality, school district, or other political subdivision in this state; and 2. Any department, agency, board, bureau, district, commission, authority, or similar body of a county, municipality, school district, or other political subdivision of this state. (b) "Public funds" means all moneys under the jurisdiction or control of the local government. (2) A local government or a person acting on behalf of local government may not expend or authorize the expenditure of, and a person or group may not accept, public funds for a political advertisement or electioneering communication concerning an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors. This subsection does not apply to an electioneering communication from a local government or a person acting on behalf of a local government which is limited to factual information. (3) With the exception of the prohibitions specified in subsection (2), this section does not preclude an elected official of the local government from expressing an opinion on any issue at any time. [Emphasis added.] Based upon subsequent legislative changes to the definition of "electioneering communications," which applied the term only to communications about candidates, the Division opined that the portion of section 1 06.113 containing a prohibition on any activity that relates to an "electioneering communication concerning an issue, referendum, or amendment, including any state question, that is subject to the vote of the electors" was superfluous. The Division adheres to this opinion. However, your attorney specifically requests further clarification of the two 2010 opinions by asking the following four questions as they relate to the Commission's intended action of issuing the voter's guide: (1) Does the prohibition imposed by Section 106.113, Florida Statutes, extend only to local government expenditures for communications that constitute political advertisements? (2) Does the definition of political advertisement extend only to communications that constitute express advocacy? (3) Does the Division maintain its opinion expressed in Division of Elections Opinion 05-06 that the use of the term "expressly advocates" in the definition of "political advertisement" indicated the Legislature's intent to apply the Buckley "magic words" standard to political advertisements, requiring that to constitute express advocacy, the communication must contain express words of advocacy of election or defeat of a candidate or issue such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "oppose," and "reject"? Page 1901 of 9661 Ms. Dorothy "Dotti" Wynn May 24,2012 Page 3 of4 (4) Is it then the case that communications that do not satisfy the "magic words" express advocacy standard of Buckley are not prohibited under Section 106.113, Florida Statutes? The short answer to all of these questions is "yes." First, if one applies the Division's prior opinions regarding the superfluous "electioneering communications" language within section 106.113, the only prohibition remaining is that a local government or a person acting on behalf of local government may not expend or authorize the expenditure of, and a person or group may not accept, public funds for a political advertisement concerning an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors. Thus, the Division opines that section 106.113, Florida Statutes (2011), addresses only "political advertisements." Second, the definition of "political advertisement" requires that that advertisement expressly advocate the election and defeat of a candidate or approval or rejection of an issue. 1 Therefore, section 106.113 's prohibition is that a local government or a person acting on behalf of local government may not expend or authorize the expenditure of, and a person or group may not accept, public funds for an advertisement that expressly advocates the approval or rejection of an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors. Third, as stated in Division ofElections Opinion 05-06 (September 21, 2005), the use of the term "expressly advocates" is intended to apply the "magic words" standard to political advertisements as set forth by the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1 (1976). The "magic words" standard requires that the communication contain express words of advocacy for the election or defeat of a candidate or issue such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "oppose," and "reject." The Division adheres to this view; therefore, for purposes of section 106.113, for an advertisement to be a "political advertisement," it must contain language which satisfies the "magic words" standard of Buckley v. Valeo relating to the approval or rejection of "an issue, referendum, or amendment, including any state question, that is subject to a vote of the electors." Finally, as previously stated, the Division interprets section 106.113 to now only prohibit "political advertisements." Because a "political advertisement" requires the element of express advocacy, which in turn, requires the use of the "magic words" standard of Buckley v. Valeo, the avoidance of such words in any expression would preclude the expression or message from being in violation of section 106.113, Florida Statutes (2011). Therefore, local government 1 See § 106.011(17), Fla. Stat. (2011) (To be a "political advertisement," the expression, by means other than the spoken word, must be a (1) a paid expression; (2) in a "communications media" (as defined in § 106 .011(13), Fla. Stat.); and be one which (3) expressly advocates the election and defeat of a candidate or the approval or rejection of an issue.) Page 1902 of 9661 Ms. Dorothy "Dotti" Wynn May 24,2012 Page 4 of4 expenditures for communications that do not satisfy the definition of a "political advertisement" are not prohibited by section 106 .113. SUMMARY Applying the Division's prior OpIniOnS regarding the superfluous "electioneering communications" language in section 106.113, Florida Statutes (2011), the prohibition within the section now addresses only "political advertisements." A political advertisement as defined in chapter 106, Florida Statutes (2011), must contain words which expressly advocate the approval or rejection of an issue based upon the "magic words" standard found in Buckley v. Valeo, 424 U.S. 1 (1976). Local government expenditures for communications that do not satisfy the definition of a "political advertisement" are not prohibited by section 106.113 . . Gisela Salas Director, Division of Elections cc: Wade Vose, Esq. Page 1903 of 9661