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Sr ~ ::~~ zm 0 == ~;o t-.) 0)>- 0 ,-<)> - 0 "'0 ~~ ~ .... Z ~@ ;: I\.)m ~)> -.J"'O Z :: ~ --l ~ .... 0 ;0 ...... "'0 W, ~ 0 0 0> ;0 o () _, )> CT --l ;: ?= ;0 0 "'0 G III co CD Q, U'1 < O' i>> - O' ~ m < s: CD ~ (') CD ;:Q CD ~ o ::l o ~ jD' .. o ~g 0:1 zo~ ~~3' iD:I:lD 1Il 0 iil ;'iillD ,:a ~gg olDen ~Clll ::!. ;' ~~ 'tI a (Q iil 3 6) Westlaw. 2 So.2d 371 147 Fla. 137,2 So.2d 371 (Cite as: 147 Fla. 137,2 So.2d 371) c Supreme Court of Florida, DUVAL LUMBER CO. v. SLADE (two cases). May 20, 1941. En Banc, Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge. Action by R. N. Slade and another against the Duval Lumber Company for damages sustained in an automobile collision. To review a judgment for plaintiff, defendant brings error. Affinned. West Headnotes [IJ Automobiles 48A oC=5(5) 48A Automobiles 48AI Control, Regulation, and Use in General 48Ak5 Power to Regulate or Prohibit 48Ak5(5) k. Traffic Regulations. Most Cited Cases The regulation of traffic on public streets or high- ways is in the exercise ofthe sovereign police power. [21 Constitutional Law 92 oC=2437 92 Constitutional Law 92XX Separation of Powers 92XX(B) Legislative Powers and Functions 92XX(B)4 Delegation of Powers 92k2434 To State and Local Authorit- ies 92k2437 k. Municipalities and Mu- nicipal Employees and Officials. Most Cited Cases (Fonnerly 92k63(2)) The municipality acquired its right to exercise sov- rage 1 or j Page 1 ereign police power by statute, and the state legis- lature may delegate to or remove from municipality exercise of such sovereign power as it may deem wise and expedient. [3J Automobiles 48A oC=9 48A Automobiles 48AI Control, Regulation, and Use in General 48Ak9 k. Concurrent and Conflicting Regu- lations, Most Cited Cases Section of Motor Vehicle Law making it unlawful for any city or town to pass or attempt to enforce ordinance in conflict with provisions of such law was within province of legislature. Comp.Gen.Laws 1927, ~ 1323. [4] Automobiles 48A oC=9 48A Automobiles 48AI Control, Regulation, and Use in General 48Ak9 k. Concurrent and Conflicting Regu- lations. Most Cited Cases Any traffic regulation adopted by city ordinance which is in conflict with, or is inconsistent with, state regulation on same subject matter, is invalid. [51 Automobiles 48A oC=9 48A Automobiles 48AI Control, Regulation, and Use in General 48Ak9 k. Concurrent and Conflicting Regu- lations. Most Cited Cases Municipal speed ordinance was inapplicable to street over which was routed state highway through residential portion of city, in view of statute impos- ing a different limit, especially where statute spe- cifically prohibited adoption of conflicting ordin- ance by municipality in so far as ordinance applied to state highway. Comp.Gen.Laws 1927, ~~ 1318, 1323. *137 **371 Coe & McLane, of Pensacola, for plaintiff in error. *138 Merritt & Brown, of Pensacola, for defendant ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. - 2 So.2d 371 147 Fla. 137,2 So.2d 371 (Cite as: 147 Fla. 137,2 So.2d 371) in error. BUFORD, Justice. Writ of error brings for review judgment in favor of plaintiffs in tort action for damages sustained in an automobile collision. There is but one question presented, which is stated as follows: 'Where the duly enacted Municipal ordinances gov- ern the speed of traffic on the streets of a city, without exception, are they applicable to a street over which is routed a state hjghway through the residential portion of such city?' The accident occurred on North Palafox Street in the City of Pensacola. Where the accident occurred North Palafox Street is designated as a State High- way. Section No. 744 and Section No. 752 of the printed code of Ordinances of the City of Pensacola were offered in evidence by the defendant. These sections are as follows: 'Sec. 744. All streets shall be classified as business streets and resident streets as follows: Business streets shall include the portions of Palafox, and Baylen and Tarragona Streets south of Wright Street, and Garden Street and all other streets and portions of streets south of Garden Street, and between the eastern line of Alcaniz Street and the Western line of Baylen Street. 'Resident Streets shall include all streets and por- tions of streets not herein classified as business streets. 'Sec. 752. The following speed rates are hereby es- tablished for motor vehicles using the streets of the City: '12 miles per hour on business streets. '8 miles per hour at crossings on business streets. '20 miles per hour on residence streets. ra!:!>l,; ~ VI J Page 2 , 10 miles per hour at crossings on residence streets.' *139 The Court admitted Section No. 744 and it was shown that the place where the accident oc- curred on North Palafox Street was within the clas- sified area of residence streets. The court declined to allow Section 752 introduced upon the theory that its application to the locus in quo was contrary to the provisions of Section 1 of Chapter 10186, Acts of 1925, appearing as Section 1318, C.G,L., and Section 6 of the Act of 1925, supra, appearing as Section 1323, C.G.L. Inter alia, Section 1318, supra, provides: **372 'Provided, that a rate of speed in excess of twenty-five miles per hour in the residence portion of any city, town or village, and a rate of speed in excess of fifteen miles per hour in the business por- tion of any city, town or village, and a rate of speed in excess of forty-five miles per hour on any public highway outside of the corporate limits of any in- corporated city or town of motor driven vehicles weighing less than five thousand pounds shall be deemed prima facie evidence of reckless driving;' Plaintiff in error relies on the case of Town of At- lantic Beach v. Oosterhoudt, 127 Fla. 159, 172 So. 687, as authority for the contention that the court was in error in excluding Section 752 of the Ordin- ance. The opinion in that case shows that the Court recognized and considered a peculiar and unusual condition which existed at the locus in quo and also considered the special provisions of the legislative Act granting to the municipality the right to exer- cise police power over the Beach involved in con- nection with the purpose for which the Beach might be lawfully used. That locus in quo was a natural driveway which the legislature had declared to be a public highway but it was not a part of the State Highway System and we *140 construe the provi- sions of Section 1318 and Section 1323, supra, to apply to State Highways passing through cities, towns or villages and not to apply to public streets or public highways of a city which are not a part of the State Highways. <e.> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. rage j U1 j 2 So.2d 371 147 Fla. 137,2 So.2d 371 (Cite as: 147 Fla. 137,2 So.2d 371) Page 3 [1][2][3] The regulation of traffic on public streets or highways is in the exercise of the sovereign po- lice power. The municipality acquires its right to exercise the sovereign police power by statute and it is elementary that the State Legislature may del- egate to, or withhold from, the municipality the ex- ercise of such sovereign power as it may deem wise and expedient. Therefore, it was within the province of the legislature to enact Section 1323, supra. [4][5] It is well settled that any traffic regulation adopted by City Ordinance which is in conflict with, or is inconsistent with, the State regulation on the same subject matter is invalid. See 42 C.J. 618, ~ 21; Ex Parte Daniels, 183 Cal. 636, 192 P. 442, 21 A.L.R. 1172; Jones v. Stokes, 145 Ga. 745, 89 S,E, 1078; Hartje v, Moxley, 235 111. 164, 85 N.E, 216; Wilson v. Moudy, 22 Tenn.App. 356, 123 S.W.2d 828; Schneiderman v. Sesanstein, 121 Ohio St. 80, 167 N.E. 158,64 A.L.R. 981; and numerous other cases cited in note 47, 42 C.J. page 618. See, also, Mendel v. Donnan, 202 Ky. 29, 258 S.W. 936; Hoigard v. Yellow Cab Co., 320 Ill. 317, 150 N.E. 911; State v. Stallings, 189 N.C. 104,126 S.E. 187, This rule would be applicable without the af- ftnnative provisions contained in Section 1323, surpa, but here the general state law not only is in conflict with the involved ordinance, but the gener- al law or Sec. 1323, supra, has specifically prohib- ited the adoption of such an ordinance by a muni- cipality insofar as the same applies to State High- ways. *141 No reversible error appearing in the record, the judgment should be and is affirmed. So ordered. BROWN, C. 1., and WHITFIELD, TERRELL, CHAPMAN, THOMAS, and ADAMS, JJ.', concur. Fla. 1941 Duval Lumber Co. v. Slade 147 Fla. 137,2 So.2d 371 END OF DOCUMENT <[J 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. West law. 121 So.2d 172 (Cite as: 121 So.2d 172) C District Court of Appeal of Florida, Second Dis- tri ct. CITY OF WILTON MANORS, Florida, a municip- al corporation, et aI., Appellants, v. 1. Frank STARLING et aI., Appellees. No. 1401. May 20, 1960. Rehearing Denied June 20, 1960. Action by owner and operator of restaurant and by holders of special license for consumption of alco- holic liquors at restaurant bar for declaratory decree that ordinance requiring restaurant bars to use their facilities for serving alcoholic beverages only as service bars at which no stools were pennitted was invalid. The Circuit Court of Broward County, Otis Farrington, 1., entered final decree holding the or- dinance invalid, and city appealed. The District Court of Appeal, Allen C. J., held that in absence of showing that city had been authorized by legislature to enact regulations governing method of sale by restaurant bars, ordinance was invalid. Affinned. West Headnotes [I] Municipal Corporations 268 oC=120 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268k120 k. Construction and Operation. Most Cited Cases In passing upon validity of municipal ordinance, construction should be accorded thereto so as to render ordinance legal, if possible, and reviewing court should construe ordinance so as to give reas- onable effect to its provisions. Page 1 of 5 Page 1 [2] Municipal Corporations 268 oC=121 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268kl21 k. Proceedings to Detennine Validity of Ordinances, Most Cited Cases Courts are always reluctant to declare a municipal ordinance invalid. [3) Municipal Corporations 268 <C=63.1 268 Municipal Corporations 26811 Governmental Powers and Functions In General 268k63 Judicial Supervision 268k63.l k. In General. Most Cited Cases (Fonnerly 268k63.1(1), 268k63(1)) Citizens of a municipality, through their local legis- lative body, should be pennitted to detennine what regulatory measures are needed for their own self- government. [4] Municipal Corporations 268 oC=lll(l) 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268klll Validity in General 268klll(1) k. In General. Most Cited Cases Municipal Corporations 268 oC=I1l(3) 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268kll1 Validity in General 268kl11(3) k. Reasonableness and <<:;) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.comlprint/printstream.aspx?rs=WLW9.1 O&destination=atp&prft=H... 11/17/2009 121 So.2d 172 (Cite as: 121 So.2d 172) Unifonnity of Operation. Most Cited Cases In order to be upheld, an ordinance must have been enacted within powers of municipality and be reas- onable, equal, and impartial in operation. [5] Municipal Corporations 268 oC=120 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268kl20 k. Construction and Operation. Most Cited Cases Municipal ordinances are inferior in status and sub- ordinate to laws of state. 16] Municipal Corporations 268 oC=78 268 Municipal Corporations 268I1I Legislative Control of Municipal Acts, Rights, and Liabilities 268k77 Operation and Effect of Legislative Acts 268k78 k. In General. Most Cited Cases If any doubt exists as to extent of municipal power attempted to be exercised which may affect opera- tion of state statute, doubt is to be resolved against ordinance and in favor of statute. [7] Intoxicating Liquors 223 oC=lO(2) 223 Intoxicating Liquors 2231 Power to Control Traffic 223k9 Delegation of Powers 223k 10 To Local Authorities in General 223klO(2) k. Regulations Within Mu- nicipal Power in General. Most Cited Cases City, under its police power, has right to enact reas- onable regulations concerning sale of alcoholic beverages, as well as other acts in conduct of such business which do not directly pertain to sale there- of. F.S.A. ~ 168.07. [8] Intoxicating Liquors 223 oC=ll 223 Intoxicating Liquors Page 2 of 5 Page 2 2231 Power to Control Traffic 223k9 Delegation of Powers 223kll k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases Under state beverage law, all powers of a municip- ality over subject of intoxicating liquors, except powers specifically enumerated, are inhibited. F.S.A. ~ 561.20. [9] Intoxicating Liquors 223 oC=15 223 Intoxicating Liquors 22311 Constitutionality of Acts and Ordinances 223kl5 k. Licensing and Regulation. Most Cited Cases In absence of showing that city had been authorized by legislature to enact regulations governing meth- od of sale by restaurant bars, ordinance requiring restaurant bars to use their facilities for serving al- coholic beverages only as service bars at which no stools were pennitted was invalid. F,S.A. ~ 561.20. *173 Frank B. Akennan and Mildred S. Akennan, Fort Lauderdale, for appellants. Warren O. Windle, Fort Lauderdale, for appellees. ALLEN, Chief Judge. This is an appeal from a final order of the lower court holding a municipal ordinance of the appel- lant city invalid. The facts are not in dispute and sole question on ap- peal is the validity of the subject ordinance. On December 18, 1956, appellant enacted ordin- ance No. 74 relating to the retail sale of alcoholic beverages. Section 1 of the ordinance defined 'Restaurant Bar' and among other items, required that such a bar be a service bar and prohibited bar stools at such bar. Subsequent to the enactment of the above ordin- ance, a special license for the retail sale of alcohol- ic beverages for consumption on the premises was <<) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.1 O&destination=atp&prft=H... 11/1712009 121 So.2d 172 (Cite as: 121 So.2d 172) issued on December 18, 1958, by the appellant to Manor Flame Restaurant and Lounge, Inc., which is owned and operated by the appellee. On February 12, 1959, the State and Broward County issued a special license for consumption of alcoholic bever- ages on the premises to appellees. On February 20, 1959, appellee was arrested for vi- olating ordinance No. 74 in that appellee operated a restaurant bar in the Manor Flame Restaurant and Lounge and pennitted patrons to be served alcohol- ic beverages while occupying bar stools at the bar. Appellee filed a suit for declaratory decree seeking to have ordinance No. 74 declared invalid. After a hearing on the cause, the lower court entered a final decree holding ordinance No. 74 in- valid by stating: 'Section I thereof is hereby detennined to be inval- id for the reason that it is in contravention of the State statutes pertaining to the authority of muni- cipalities to regulate and control the sale of alcohol- ic beverages. The authority for this Order is City of Miami v. Kichinko, 22 So. 630, (sic)' [156 Fla. 128, 22 So.2d 627] Ordinance No. 74 is entitled: 'An ordinance amending Ordinance No.7 to define 'Restaurant Bar' and re-defining 'Hotel Bar' and amending the provisions for the requirements and operation of bars holding the aforementioned li- censes and for the transfer of said licenses.' Section I, which was declared invalid by the lower court, supra, provides: "Restaurant Bar' means a bar operated in connec- tion with a restaurant and by the same owner or management, and in a business zoned area, which restaurant has all necessary equipment and supplies for and serves full course meals regularly and where the principal business is the serving of meals and having accommodations at all times for service of 200 or more patrons at tables and occupying more than 4,000 square feet of space. The restaur- Page 3 of 5 Page 3 ant bar must be directly connected*174 with such dining room, must be a service bar for patrons of such restaurant, and no stools shall be pennitted at such bar and intoxicating liquors must be sold by the drink only from said bar. No package goods shall be sold from said bar, nor shall a package store be pennitted upon the premises. Only one res- taurant bar, license as provided in Ordinance No.7, Section .02, Sub. (2), Sub. (c), pennitted to be oper- ated at such location in connection with such dining room, and such license cannot be moved to new location, and must be issued in the name of the owner or management. Such license, or any renew- al thereof, must be marked 'Special'. The sale of beers, wines and liquors shall be prohibited except during the time the restaurant is actually engaged in and open to the public for the service of full course meals. No sign of any kind or character shall be displayed on the restaurant or bar visible from the outside, denoting that alcoholic beverages are sold therein.' [1][2][3] In passing upon the validity of a municip- al ordinance, a construction should be accorded thereto so as to render the ordinance legal, if pos- sible, and the reviewing court should construe it so as to give a reasonable effect to its provisions. City of Miami v. Kayfetz, Fla.1957, 92 So.2d 798. The courts of this and other states are always reluctant to declare a municipal ordinance invalid in view of the principle that the citizens of a municipality through their local legislative body should be per- mitted to detennine what regulatory measures are needed for their own self-government. State ex reI. Harkow v. McCarthy, 126 Fla. 433, 171 So. 314; City of Tacoma v. Keisel, 68 Wash. 685, 124 P. 137,40 L.R.A.,N.S., 757. [4][5][6] In order to be upheld the ordinance must have been enacted within the powers of the muni- cipality and be reasonable, equal, and impartial in operation. It is fundamental, however, that municip- al ordinances are inferior in status and subordinate to the laws of the state. Accordingly, an ordinance must not conflict with any controlling provision as <<::> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2.westlaw.comlprint/printstream.aspx?rs=WLW9.1 O&destination=atp&prft= H." 11/17/2009 " 121 So.2d 172 (Cite as: 121 So.2d 172) principle of law, and if any doubt exists as to the extent of a power attempted to be exercised which may affect the operation of a state statute, the doubt is to be resolved against the ordinance and in favor of the statute. See City of Coral Gables v. Seiferth, Fla.1956, 87 So.2d 806; Ex parte Wise, 141 Fla. 222, 192 So. 872; 23 FlaJur. Municipal Corpora- tions, sec. 93. [7] Municipal ordinances in the field of legislation affecting the subject of alcoholic beverages have presented difficult problems to the courts as to when and to what extent the state has pre-empted this legislative area. In City of Miami Beach v. State ex reI. Patrician Hotel Co., 145 Fla. 716, 200 So. 213, the court held that a municipality, under its police power, has the power to enact reasonable regulations concerning the sale of alcoholic bever- ages. It may also regulate other acts in conduct of such business which do not directly pertain to the sale thereof. Sec. 168.07, F.S.A.; City of Miami v. Kayfetz, supra. [8] The case of City of Miami v. Kichinko, 156 Fla. 128, 22 So.2d 627, cited by the lower court as au- thority for its holding the ordinance invalid, in- volved an ordinance which limited the number of liquor licenses which could be issued on the basis of population of the City of Miami. Although this case was decided prior to the enactment of Chapter 23746, Laws of Florida 1947, one of many amend- ments to sec. 56 1.20, the basis of the court's de- cision rested on the principle that municipalities possess only such power as is conferred by express or implied provisions of law and that the Legis- lature, in enacting the State Beverage Law, inten- ded to inhibit all powers of a municipality over the subject of intoxicating liquors, except those powers specifically enumerated therein. Upon that *175 basis the court held the Miami ordinance invalid. [9] In Simpson v. Goldwonn, Fla.1952, 59 So.2d 511, 512, the question before the court was: Does a municipality have the power to regulate the sale of liquor within its corporate limits so as to be able to validly create zones wherein the use of licenses to Page 4 0[5 Page 4 sell liquor are restricted as to method of sale? Prior to discussing the zoning aspect of the case, the court unequivocably stated: 'The Legislature has not, by general law, specific- ally authorized the municipalities of this state to regulate the 'method of sale,' of alcoholic bever- ages within their corporate limits; and this court has many times held that a municipality has only such power respecting the regulation and control of alco- holic beverages as is given it by the Legislature. See Singer v. Scarborough, 155 Fla. 357, 20 So.2d 126; City of Miami v. Kichinko, 156 Fla. 128, 22 So,2d 627; Fleeman v. Vocelle, 160 Fla. 898, 37 So.2d 164.' The Court then concluded that since the City of Miami Beach had made no showing that it was au- thorized to restrict vendors in the class of Gold- wonn to sales from 'service bars' only, the provi- sions of the Miami Beach ordinance attempting to do so were invalid and of no effect. The Court noted in City of Miami Beach v. Traina, Fla.1954, 73 So.2d 860, that its holding in Simpson v. Goldwonn, supra, was correct on the state of that record. But since, in the Traina case, the city made a showing that Special Acts 1947, ch. 24710 as amended Special Acts 1949, ch. 26032, gave it, by necessary implication, if not expressly the right to regulate the method of sale from 'service bars,' the prior holding of Simpson v. Goldwonn would not be a bar to such municipal regulation and, there- fore, the zoning ordinance was upheld. In the instant case it is clear that Ordinance No. 74, Section I, of the ordinances of the City of Wilton Manors was an attempt to regulate the method of sale by the restaurant bars in that it would require such bars to use their facilities for serving alcoholic beverages as service bars only. Under the holdings set forth herein, before such regulation by the City of Wilton Manors could be valid it must be shown that by proper legislative action the city has been authorized to enact such regulations. In the absence of such a showing by the city and for the reasons ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream,aspx?rs=WL W9.10&destination=atp&prft=H... 11/17/2009 Page 5 of5 Page 5 121 So.2d 172 (Cite as: 121 So.2d 172) set forth herein, the judgment of the lower court holding the subject ordinance invalid is hereby af- finned. Affinned. KANNER and SHANNON, JJ., concur. Fla.App. 1960 City of Wilton Manors v. Starling 121 So.2d 172 END OF DOCUMENT <<;> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.comlprint/printstream.aspx?rs=WLW9 ,1 O&destination=atp&prft=H.,. 11/17/2009 l~~~" ~1~~ ~~~c-YY'\,?~ON {' West law. rage I or IV 635 So.2d 96 151 P.U.R.4th 552, 635 So.2d 96, Uti!. L. Rep, P 26,391,19 Fla, L. Weekly D703 (Cite as: 151 P.D.R.4th 552,635 So.2d 96) P> District Court of Appeal of Florida, First District. SANTA ROSA COUNTY, Appellant/Cross Ap- pellee, v. GULF POWER COMPANY, BellSouth Telecom- munications, Inc., d/b/a Southern Bell Telephone and Telegraph Company, and Escambia River Elec- tric Cooperative, Inc., Appellees/Cross Appellants, and ESCAMBIA COUNTY, Appellant/Cross Appellee, v. GULF POWER COMPANY, Escambia River Elec- tric Cooperative, Inc., Southern Bell Telephone and Telegraph Company, and Southland Telephone Company, Appellees/Cross Appellants. Nos. 92-3658, 92-3803. March 30, 1994. Rehearings Denied May 24, 1994. Counties appealed from final declaratory judgment of Circuit Court, Escambia County, John p, Kuder, 1., which precluded counties from imposing fran- chise fees on utilities. Utilities cross-appealed from judgment holding that counties possessed regulat- ory power to impose franchise fees. The District Court of Appeal, Ervin, J., held that: (1) Public Ser- vice Commission has not preempted counties' right to convey franchises to electric utilities, although Commission has exclusion jurisdiction to grant ter- ritorial certificates of necessity as to telephone util- ities; (2) county resolutions conveying to electric company right to occupy counties' roads were ultra vires acts and neither defense of impainnent of ob- ligation of contracts nor of estoppel was available to prevent imposition of franchise fee; (3) franchise fee constituted consideration for contractual grant of right to use county rights-of-way and was not an impennissible tax; and (4) utilities properly exer- cised right to tenninate franchises. Page 1 Affinned in part, reversed in part and remanded. West Headnotes [1] Counties 104 oC=107 104 Counties 104IV Public Buildings and Other Property I04kl07 k. Control and Regulation of Public Property, Buildings, and Places. Most Cited Cases Noncharter counties have home-rule authority to impose franchise fees on utilities even though power to so act is not specifically enumerated among those delegated to counties by statute; only limitation on county's implied power to act occurs if there is general or special law clearly inconsistent with powers delegated. West's F.S.A. S l25.Gl; West's F.S.A. Const. Art. 8, ~ let). [2] Counties 104 oC=24 104 Counties 10411 Government 10411(A) Organization and Powers in Gener- al 104k24 k. Legislative Control of Acts, Rights, and Liabilities, Most Cited Cases Electricity 145 oC=8.1(4) 145 Electricity 145k8.1 Franchises and Privileges in General 145k8,1(4) k. Proceedings and Review; In- junction. Most Cited Cases Public Service Commission (PSC) has not preemp- ted counties' right to convey franchises to electric utilities; Commission's power to regulate rates is not affected by franchise fees that are passed on to customer. West's F.S.A. S 366.13. [3] Counties 104 oC=107 104 Counties 104IV Public Buildings and Other Property 104kl07 k. Control and Regulation of Public ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2, westlaw .comJprint/printstream.aspx?sv=Split&orft= HTMLE&ifm=N otSet&.. 10/1 "nOOQ rage L or IV 635 So.2d 96 151 P,U.RAth 552, 635 SO.2d 96, Uti!. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.D.R.4th 552,635 So.2d 96) Property, Buildings, and Places. Most Cited Cases Statute providing that rural electric cooperatives shall have power to operate transmission lines across all public thoroughfares did not create private contract with cooperatives that is constitu- tionally protected from impairment and did not pre- clude county from imposing franchise fees upon co- operative. West's F.S.A. ~ 425.04(11). [4] Statutes 361 oC=233 361 Statutes 361 VI Construction and Operation 361 VI(A) General Rules of Construction 36lk233 k. Construction as Including or Binding Government. Most Cited Cases In ascertaining whether statutory grant of power gives rise to contractual obligation, one must first examine specific language of statute, and, in ab- sence of adequate expression of actual intent by public authority to bind itself thereby, court should not lightly construe that which is undoubtedly a scheme of public regulation to be, in addition, private contract to which state is party, [5] Counties 104 €:;;;;>24 104 Counties 10411 Government 10411(A) Organization and Powers in Gener- al 104k24 k. Legislative Control of Acts, Rights, and Liabilities. Most Cited Cases Telecommunications 372 oC=734 372 Telecommunications 372III Telephones 372III(A) In General 372k733 Preemption; Interplay of Feder- al, State and Local Laws 372k734 k. In Genera!. Most Cited Cases (Fonnerly 372k75,1) Statutes giving Public Service Commission (PSC) jurisdiction to grant certificates of necessity and Page 2 convenience to telephone service providers pree- mpts county from requiring franchise agreements from telephone utilities. West's F,S.A, ~~ 364.32-364.37. [6] States 360 oC=18.3 360 States 3601 Political Status and Relations 360I(B) Federal Supremacy; Preemption 360k18.3 k. Preemption in General. Most Cited Cases "Express preemption" requires that statute contain specific language of preemption directed to particu- lar subject at issue, [7] States 360 oC=18.3 360 States 3601 Political Status and Relations 360I(B) Federal Supremacy; Preemption 360k18.3 k. Preemption in General. Most Cited Cases "Implied preemption" incurs if legislative scheme is so pervasive that it occupies entire field, creating danger of conflict between local and state laws. [8] Counties 104 €:;;;;>107 104 Counties 104IV Public Buildings and Other Property 104kl07 k. Control and Regulation of Public Property, Buildings, and Places. Most Cited Cases Estoppel 156 €:;;;;>62.3 156 Estoppel 156III Equitable Estoppel 1 56III(A) Nature and Essentials in General 156k62 Estoppel Against Public, Govern- ment, or Public Officers 156k62,3 k. Counties and Subdivisions Thereof, Most Cited Cases Resolutions adopted by counties granting electric utility right to occupy counties' roads for purpose of constructing and maintaining electric transmission lines constituted ultra vires acts, as counties had no ~ 2009 Thomson Reuters, No Claim to Orig. US Gov. Works. http://web2.westlaw.comlprintlprintstream.asox?sv=Solit&nrft= HTMT ,R&i fm=N nt~pt 1?T 1 ()/l" /")()()O rag~ j U1 IV 635 So.2d 96 151 P,U.RAth 552, 635 So.2d 96, Uti!. L. Rep, P 26,391,19 Fla, L. Weekly D703 (Cite as: 151 P.U.R.4th 552,635 So.2d 96) delegated authority to convey franchise to use counties' rights-of-way, and neither defense of impairment of obligation of contracts nor of estop- pel was available to electric utility to prevent counties from imposing franchise fees upon utility for its use of public's rights-of-way. Const. 1885, Art. 8, ~ 6. [9) Estoppel 156 oC=62.3 156 Estoppel 156II1 Equitable Estoppel 156II1(A) Nature and Essentials in General 156k62 Estoppel Against Public, Govern- ment, or Public Officers l56k62.3 k. Counties and Subdivisions Thereof. Most Cited Cases Counties cannot be estopped from denying validity of acts that exceeded their delegated powers. [10] Counties 104 oC=107 104 Counties 104IV Public Buildings and Other Property 104k107 k. Control and Regulation of Public Property, Buildings, and Places, Most Cited Cases Franchise fees imposed by counties on utilities for use of rights-of-way constituted consideration for contractual grant of right to use rights-of-way and were not invalid as impennissible "tax" having no discemible relationship to cost to counties for use of rights-of- way. [11] Counties 104 oC=107 104 Counties 104IV Public Buildings and Other Property 104k107 k. Control and Regulation of Public Property, Buildings, and Places, Most Cited Cases In view of express language in county ordinances granting franchises to utilities and imposing fran- chise fee, utilities lawfully exercised rights to ter- minate unilaterally by failing to participate, and ter- mination would not be denied on theory counties substantially perfonned or made good-faith efforts to perfonn but were prevented from fulfilling same Page 3 by action of other parties. *97 Thomas V. Dannheisser, County Atty., Milton, for appellant/cross appellee Santa Rosa County. Robert L. Nabors, Gregory T. Steward, and Thomas H. Duffy of Nabors, Giblin & Nickerson, P.A., Tal- lahassee for appellant/cross appellee Escambia County . G, Edison Holland, Jr" and Teresa E. Liles of Beggs & Lane, Pensacola, for appellee/cross appel- lant Gulf Power Co. 1. Nixon Daniel, III of Beggs & Lane, Pensacola, for appellee/cross appellant BellSouth. Thomas E. Wheeler, Jr. of Bell, Schuster & Wheel- er, Pensacola, for appellee/cross appellant Escam- bia River Electric Co-op, Inc. ERVIN, Judge. In these consolidated appeals, Santa Rosa County and Escambia County appeal certain *98 portions of a final declaratory judgment, the net effect of which precluded the counties from imposing fran- chise fees on two telephone utilities and two elec- tric utilities, operating within. the respective counties, for using the counties' rights-of-way to construct or maintain the utilities' poles and lines. Certain of the utility companies, in turn, cross ap- peal from portions of the judgment holding that the counties possess the regulatory power to impose franchise fees. We affIrm in part, reverse in part and remand with directions. In 1989, Escambia County adopted Ordinances 89-37 and 89-39. The former granted a non- exclusive franchise to Gulf Power Company (Gulf Power) and imposed a franchise fee equal to five percent of its gross sales of electricity each month, and the latter granted a non-exclusive franchise to Escambia River Electric Cooperative (EREC), a rural electric cooperative, pursuant to the same gen- eral tenns as that conveyed to Gulf Power. In 1991, Escambia County adopted Ordinances 91-19 and @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2.westlaw.comlprint/printstream.aspx?sv=Snlit&nrft= HTMT .F&. i fm=N nt~pt ~ 1 ()/l ,,/')()()O rC1gt.: 't VI 1 V 635 So.2d 96 151 P,U.RAth 552, 635 So.2d 96, Uti!. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.U.R.4th 552,635 So.2d 96) 91-22, purporting to convey non-exclusive fran- chises to BellSouth Telecommunications, Inc. (BellSouth) and Southland Telephone Company (Southland), pennitting them to use the county's rights-of-way and imposing a franchise fee for such use equal to five percent of the revenues collected from the sale of local telephone services. In 1990, the Board of County Commissioners of Santa Rosa County approved Ordinances 90-01 and 90-02, also granting non-exclusive franchises to Gulf Power Company and EREC, with terms similar to those provided in the Escambia County ordinances. Each ordinance contained a clause allowing any of the grantees to tenninate its franchise if other utilit- ies in the respective counties did not enter into fran- chise agreements, or if franchise fees were not im- posed within two years of the effective date of the agreements. Both BellSouth and Southland declined to enter into the agreements, asserting that section 362.02, Florida Statutes, prevented the counties from requiring them to obtain a franchise. As a res- ult of this refusal, the electric utilities, within the time specified in the agreements, ceased paying the franchise fees and declined to enter into other fran- chise agreements. Subsequently, the counties brought separate suits for declaratory judgments, later consolidated, to determine the validity of the various ordinances establishing the franchises in question. After trial, the lower court entered final declaratory judgment, making the following pertinent rulings in the alternative: 1. Non-charter counties, such as Santa Rosa and Es- cambia, do not require specific authority from the legislature to impose franchise fees upon utilities for the use of their rights-of-way, as such power can be reasonably implied from the powers gener- ally delegated to them, unless there is some general or special law inconsistent therewith. 2. The Public Service Commission (PSC) has not preempted the counties' right to convey franchises to electric utilities, because the PSC does not have Page 4 unconditional authority to issue certificates of con- venience and necessity to electric utilities. 3. Section 425.04(11), Florida Statutes, extended a contractual offer to rural electric cooperatives, such as EREC, which, once accepted, could not be im- paired; therefore, the counties were precluded by the terms of the statute from imposing franchise fees upon EREC. 4. The counties have no authority to require fran- chise agreements from telephone utilities, because the PSC has exclusive jurisdiction to grant territori- al certificates of necessity as to them pursuant to applicable Florida Statutes. 5. The counties were equitably estopped from im- posing franchise fees upon Gulf Power as a result of resolutions passed in 1926 by Escambia County and in 1928 by Santa Rosa County, conveying to Gulf Power the right to occupy the counties' roads for the purpose of constructing and maintaining electric transmission and distribution lines, and, as such, the resolutions constituted a grant of a fran- chise with no fee. Additionally, because the resolu- tions gave rise to contractual obligations, the counties could not later validly adopt ordinances imposing fees, as such acts would violate the oblig- ation of contracts clauses of the federal and state constitutions. As a consequence, Santa Rosa County Resolution *99 92-17, repealing its 1928 resolution, was void, 6. Each franchise fee was an impermissible tax, be- cause the amount charged bore no discernible rela- tionship to the cost to the counties for the use of their rights-of-way in that the counties did not provide sufficient evidence to show that the amount charged was reasonable. 7. The ordinances were void under their own tenns in that all utilities had not executed franchise agree- ments within the two years required by the ordin- ances. Both counties appeal from the portion of the fmal ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. . htto:llweb2. westlaw ,com/nrintlnri ntstream. asnx?sv=Sn 1 it &nrft= HTMT .F&i fm=N nt~pt 1& 10/11:\/')000 rl:lgt:JUIIU Page 5 635 So.2d 96 151 P.U.RAth 552, 635 So.2d 96, Util. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.U.R.4th 552, 635 So.2d 96) declaratory judgment pertaining to rulings 3, 5, 6 and 7. Escambia County only appeals from ruling 4, while all the utilities cross appeal ruling 1, and Gulf Power cross appeals ruling 2. We affinn rulings 1,2,4 and 7, but reverse 3, 5 and 6, and remand the case with directions that judg- ment be entered in conformance with this opinion. Each of the court's rulings is discussed in the order as above listed. 1. [1] In deciding that non-charter counties have home-rule authority to impose franchise fees, the trial court rejected the cross appellants' argument that the power to so act is lacking, because it is not specifically enumerated among those delegated to the counties by section 125.01, Florida Statutes (1989). We agree. Article VIII, section l(t) of the Florida Constitution (1968) provides: Counties not operating under county charters shall have such power of self-government as is provided by general or special law. The board of county commissioners of a county not operating under a charter may enact, in a manner prescribed by gener- al law, county ordinances not inconsistent with gen- eral or special law.... (Emphasis added.) The statute broadly implements the constitutional provision by authorizing the gov- erning body of a county, "[t]o the extent not incon- sistent with general or special law," to exercise the power to carry on county government which in- cludes, "but is not restricted to," certain enumerated powers. ~ 125.01(1), Fla.Stat. (1989). Subsection (I)(w) gives counties the authority to "[p]erfonn any other acts not inconsistent with law, which acts are in the common interest of the people in the county, and exercise all powers and privileges not specifically prohibited by law." Finally, subsection (3) provides: (a) The enumeration of powers herein shall not be deemed exclusive or restrictive, but shall be deemed to incorporate all implied powers neces- sary or incident to carrying out such powers enu- merated, including, specifically, authority to em- ploy personnel, expend funds, enter into contractual obligations, and purchase or lease and sell or ex- change real or personal property, (b) The provisions of this section shall be liberally construed in order to effectively carry out the pur- pose of this section and to secure for the counties the broad exercise of home rule powers authorized by the State Constitution, (Emphasis added,) The Florida Supreme Court has commented on the broad scope of home-rule authority conferred upon non-charter counties in no less than three opinions: Taylor v. Lee County, 498 So.2d 424 (Fla.1986); Speer v. Olson, 367 So.2d 207 (Fla.1979); and State v. Orange County, 281 So.2d 310 (Fla. 1973). As the court recognized in Speer, 367 So,2d at 211: The fust sentence of Section 125.01(1), Florida Statutes, (1975), grants to the governing body of a county the full power to carry on county govern- ment. Unless the Legislature has pre-empted a par- ticular subject relating to county government by either general or special law, the county governing body, by reason of this sentence, has full authority to act through the exercise of home rule power. Thus, the specific powers enumerated under section 125.01 are not all-inclusive, and a non-charter county's authority comprises that which is reason- ably implied or incidental to carrying out its enu- merated powers, The only limitation on a county's implied power to act occurs if there is a general or special law clearly inconsistent with the powers delegated. *100 As discussed later in this opinion, the only statutes which we fmd inconsistent with the authority of the counties to grant franchises and to impose fees thereon are those pertaining to the PSC's regulation of telephone utilities, which, we consider, have preempted the counties from so act- ing, Thus, we affirm the court's first ruling, ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. httn' / /wf'h? wf'<;:tl~w (,flm/nrint/nrint<;:trf'~m ~<;:nY?<;:"=~nlitA'rnrft=l-:rTt\JfT p A'r;fTn=l\.T('\t~ptRT 1 ()/l ,,/")()()O ragt;OOllU 635 So.2d 96 151 P.U.RAth 552, 635 So.2d 96, Uti!. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.D.R.4th 552,635 So.2d 96) 2. [2] Cross appellant Gulf Power argues that the per- vasiveness of PSC regulation over electric utilities under chapter 366, Florida Statutes, is inconsistent with and preempts imposition of a franchise fee upon it. In this regard we agree with the trial court's finding that the prevailing theme of chapter 366 in- volves the regulation of rates charged by the elec- tric utilities within the state; whereas the franchise fees in issue have no impact upon the rates of the respective utilities, in that the fees assessed are passed onto the customer, pursuant to Florida Ad- ministrative Code Rule 25-6,100(7). Additionally, section 366.13, Florida Statutes (1989), provides that "[n]o provision of this chapter shall in any way affect any municipal tax or franchise tax in any manner whatsoever." (Emphasis added.) Such pro- vision clearly implies the counties' authority to re- quire electric utilities to pay franchise fees for their use of the counties' rights-of-way. In any event, we find no statute clearly inconsistent with the counties' power to require franchise agreements from electric utilities for such use. We therefore af- finn the court's second ruling, 3. [3] The court nevertheless ruled that section 425.04(11), Florida Statutes, conveyed a public grant to EREC to use the rights-of-way, which, once accepted by usage, constituted a contract which is protected from impairment by Article I, Section 10 of the United States Constitution and Article I, Section 10 of the Florida Constitution (1968). We cannot agree with the court's analysis, Section 425.04(11) provides that rural electric co- operatives shall have the power [t]o construct, maintain, and operate electric trans- mission and distribution lines along, upon, under and across all public thoroughfares, including without limitation, all roads, highways, streets, al- leys, bridges and causeways, and upon, under and across all publicly owned lands, subject, however, Page 6 to the requirements in respect of the use of such thoroughfares and lands that are imposed by the re- spective authorities having jurisdiction thereof upon corporations constructing or operating electric transmission and distribution lines or systems[.] [4] In ascertaining whether a statutory grant of power gives rise to a contractual obligation, one must first examine the specific language of the stat- ute, and, in the absence of an adequate expression of an actual intent by the public authority to bind it- self thereby, a court should "not lightly construe that which is undoubtedly a scheme of public regu- lation to be, in addition, a private contract to which the State is a party." National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry., 470 U.S. 451, 466-67, 105 S.Ct. 1441, 1452, 84 L.Ed.2d 432, 446 (1985). We fmd nothing in section 425,04(11) re- vealing any clear-cut legislative intent to grant private contractual rights to rural electric cooperat- ives. We understand the language of the statute simply to be an expression of the legislature that such cooperatives shall be granted the right to ac- cess public thoroughfares for the purpose of operat- ing their electric distribution lines. Nothing, however, is contained therein suggesting that the counties are precluded from placing reasonable reg- ulations on the use of the public's rights-of-way. In fact, the counties' authority to regulate is clearly in- dicated by the latter portion of subsection (11), which subjects a utility's right to use the public thoroughfares to the conditions the public authority having jurisdiction may impose. Indeed, section 425,04(9), Florida Statutes (1989), which should be read in pari materia with the provisions of 425.04(11), grants cooperatives the power, among other things, "[t]o purchase or otherwise acquire ... franchises [.]" (Emphasis added.) Consequently, we agree with the counties that sec- tion 425.04(11) cannot be interpreted as an uncon- ditional grant of authority to rural electric cooperat- ives to occupy permanently*lOl all rights-of-way conveyed to them pursuant to the tenns of the stat- ute, because, obviously, if the legislature intended @ 2009 Thomson Reuters. No Claim to Orig. US Gov, Works, htto:/ /web2. westlaw.com/nrintlnrint~tre~m ~~nx?c;:v=~nl it ~nrft= l-TTMT P /&ifn"\=l\T"t~..tRT 1 OIl ,/')OOQ ragt: I 01 IV 635 So.2d 96 151 P.U.RAth 552, 635 So.2d 96, Uti!. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.U.R.4th 552,635 So,2d 96) the cooperatives' right of possession to be without restriction, it would not have been necessary to add the statutory language empowering them to acquire franchises, Accordingly, we conclude that the pro- visions of section 425.04(11) do not create a private contract; hence, no obligation arose therefrom which could be subsequently impaired. We there- fore reverse the court's third ruling. 4. [5] We affinn the trial court's conclusion that the exercise of the counties' franchise fees against de- fendants BellSouth and Southland is preempted by operation of chapter 364, Florida Statutes. In so rul- ing, the trial court concluded that sections 364.32 through 364.37, Florida Statutes (1989), gave the PSC the exclusive jurisdiction to grant certificates of necessity and convenience to telephone service providers; thereby preempting the counties from enacting the ordinances at issue in regard to tele- phone service providers. We agree. [6][7] Florida law recognizes two kinds of preemp- tion: express and implied. The former requires that the statute contain specific language of preemption directed to the particular subject at issue. See Hills- borough County v. Florida Restaurant Ass'n, 603 So.2d 587, 590 (Fla. 2d DCA 1992). Implied pree- mption occurs if a legislative scheme is so pervas- ive that it occupies the entire field, creating a danger of conflict between local and state laws. ld at 590-91. In our judgment, section 364.01(2), Flor- ida Statutes (1989), provides an express preemption from county regulation of telephone utilities by stating the following: It is the legislative intent to give exclusive jurisdic- tion in all matters set forth in this chapter to the Florida Public Service Commission in regulating telephone common carriers, and such preemption shall supersede any local or special act or municipal charter where any conflict of authority may exist. Similarly, section 364.33, Florida Statutes (1989), Page 7 requires telephone service providers to apply to the PSC for certificates of convenience and necessity to construct and operate and extend telephone lines, except in territories already served by such entities. Nothing was placed in evidence below showing that section 364.33 does not apply to BellSouth or Southland. Consequently, as there was no evidence disclosing that Escambia County issued certificates of convenience and necessity to BellSouth and Southland for the purpose of constructing and oper- ating telephone poles and lines, we affirm the trial court's fourth ruling that Escambia County's attempt to impose utility franchises or utilization fees against BellSouth and Southland is preempted by operation of chapter 364, Florida Statutes, and that the ordinances were, as to them, inconsistent with general law . 5, [8] Having correctly decided that no existing Flor- ida statute was in derogation of the counties' right to impose franchise fees upon Gulf Power for its use of the public's rights-of-way, the lower court nonetheless alternatively ruled that the resolutions Escambia County and Santa Rosa County adopted in 1926 and 1928, respectively, granted Gulf Power the right to occupy the counties' roads for the pur- pose of constructing and maintaining electric trans- mission lines, without exacting a fee; thus, the counties' later attempts to impose utility franchise fees on Gulf Power by ordinance violated the clauses of the United States and Florida constitu- tions prohibiting impairment of the obligations of contract. In addition, the court ruled that by virtue of enacting such resolutions conveying the fran- chise without a fee, upon which Gulf Power relied to its detriment, the counties were estopped from asserting the defense of the invalidity of the resolu- tions. We cannot agree with either of the court's two grounds for invalidating the ordinances' provisions requiring Gulf Power to pay franchise fees. In our judgment, at the time the two resolutions were ad- ~ 2009 Thomson Reuters. No Claim to Orig, US Gov. Works. http://web2.westlaw.comlprint/printstream.aSDX?SV=S n 1 it&nrft:= HTMT ,F&l fm=N nt~pt /& 1011 ,,/")000 rage lS or lU 635 So.2d 96 151 P.U.RAth 552, 635 So.2d 96, Uti!. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.D.R.4th 552,635 So.2d 96) opted, the counties had no delegated authority to convey a franchise to use the counties' rights- of-way; hence, the resolutions constituted ultra vires acts, and thus neither the defense of impair- ment*102 of obligation of contracts nor of estoppel was available to Gulf Power. Before the adoption of the Florida Constitution of 1968, the counties were considered to have only such powers that the legislature expressly delegated to them. Article VIII, Section 6 of the 1885 Florida Constitution provided that the "powers, duties and compensation [of county commissioners] shall be prescribed by law." As the Florida Supreme Court observed in Hopkins v. Special Road & Bridge Dist. No.4, 73 Fla. 247, 251, 74 So. 310, 311 (1917): "County commissioners can exercise such authority only as is 'prescribed by law'; and, where there are doubts as to the existence of authority, it should not be assumed." Gulf Power, however, relies upon Martin v. Townsend, 32 Fla. 318, 13 So. 887 (1893), for the position that the counties, as of the dates the resolutions were adopted, had the inherent power to sell and dispose of county property. The court's decision in Martin, however, must be con- sidered as being limited to the facts before it, in that it involved the validity of a sale of lands in 1852 by a board of county commissioners; consequently, the validity of the sale was governed by the constitu- tion and statutes then in effect, which authorized the sale, As the Florida Supreme Court later ex- plained in Gessner v. Del-Air Corp., 154 Fla. 829, 17 So,2d 522 (1944), the rule announced in Martin did not continue to prevail at all times following the sale in 1852. In Gessner, the court observed that al- though boards of county commissioners had previ- ously been vested with authority to sell county property, such power was extinguished upon pas- sage of Chapter 882, Laws of Florida, Acts of 1872. The court concluded its history of Florida legisla- tion with the following comment: "From our exam- ination we conclude that by the act of 1872 the power to dispose of property was omitted, and has not been restored. Without such legislative delega- tion the commissioners could not convey." Id. 17 Page 8 So.2d at 523, As a consequence, when the 1926 and 1928 resolu- tions were passed, the counties only possessed au- thority to exercise, through their boards, such power as was delegated either by the constitution or the legislature, expressly or by necessary implica- tion. Colen v. Sunhaven Homes, Inc., 98 So.2d 501, 503 (Fla.1957) (involving franchise); Crandon v, Hazlett, 157 Fla, 574, 582, 26 So.2d 638, 642 (1946); Gessner, 154 Fla. at 829, 17 So.2d at 522; Scenic Hills Util. Co. v. City of Pensacola, 156 So.2d 874, 876 (Fla. 1st DCA 1963) (involving franchise), As the constitution and law then in ef- fect precluded counties from conveying property or franchises for the use of property, and continued to do so until the adoption of the 1968 constitution, we conclude that the counties' grant of the fran- chises to Gulf Power in 1926 and 1928 must be considered ultra vires and of no effect. As a result, the lower court's determination that the sub- sequently adopted ordinances violated the contract clause of the federal and state constitutions was er- roneous, because, in order to invoke the constitu- tional prohibition against the impairment of obliga- tion of contracts, it must fIrst be shown that a law- ful contract existed which was subject to impair- ment. Mahood v. Bessemer Properties, 154 Fla. 710,18 So.2d 775 (1944). [9] Moreover, counties cannot be estopped from denying the validity of acts that exceeded their del- egated powers. Edwards v. Town of Lantana, 77 So,2d 245, 246 (Fla.1955); State ex reI. Nuveen v. Greer, 88 Fla. 249, 261, 102 So. 739, 744 (1924); Jones v. Pinellas County, 81 Fla. 613, 619-20, 88 So. 388, 390 (1921); C.K. Cobb, Annotation, Es- toppel of United States, State, or Political Subdivi- sion by Deed or Other Instrument, 23 A.L.R.2d 1419, 1429 (1952). See also Crowell v. Monroe County, 578 So.2d 837, 838 (Fla, 3d DCA 1991); PCB. Partnership v. City of Largo, 549 So,2d 738, 741-42 (Fla, 2d DCA 1989). Therefore, the trial court's detennination that the later-adopted ordin- ances impaired Gulf Power's contractual obligation, <Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/orint/orintstream .asnx?sv=Sn 1 it &nrft= HTMTP J&; frn=l\T nt<;:..t ~T 1 ()/l,/")()()O rage 'j or IV 635 So.2d 96 151 P.U.R.4th 552, 635 So.2d 96, Uti!. L. Rep, P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.U.R.4th 552,635 So.2d 96) and that the counties were estopped from asserting the invalidity of the resolutions as a defense is re- versed.FN1 For the same reason *103 we reverse the trial court's detennination voiding Santa Rosa County's Resolution 92-17, which repealed its 1928 resolution. FN I. As a consequence of our detennina- tion that the resolutions were beyond the scope of the counties' delegated authority, we see no need to reach the issue of wheth- er, as the parties extensively argued, the grant of the franchise to Gulf Power could be validly accomplished by resolution rather than by ordinance, in that such argu- ment presupposes a proper delegation of legislative authority to the counties to so act. 6. [IO] As an alternative ground for invalidating the franchise fee ordinances, the trial court decided that the fees were impennissible taxes as they were based upon a percentage of gross receipts-an amount which bore no relation to the cost of regula- tion. Because the counties presented no evidence showing that the fees were based upon a reasonable rental value for the utilities' use of the counties' rights-of-way, the court concluded that the fees, as structured, constituted impermissible taxes. We re- verse, In the closely analogous case of City of Plant City v. Mayo, 337 So.2d 966 (Fla. 1976), the supreme court approved a franchise fee of six percent of the gross receipts Tampa Electric Company obtained in return for using municipal rights-of-way, and, in summarily rejecting the utility's argument that the fee was in fact a tax, the court replied: [W]e have absolutely no difficulty in holding that the franchise fees payable by Tampa Electric are not "taxes", The cities would lack authority to im- pose taxes of this type [under the Constitution] and, Page 9 unlike other governmental levies, the charges here are bargained for in exchange for specific property rights relinquished by the cities. lei. at 973 (footnotes omitted). Accord City oj Hialeah Gardens v. Dade County, 348 So.2d 1174, 1180 (Fla. 3d DCA 1977) (franchise fee from Flor- ida Power & Light Co. to provide electricity to Dade County was not a tax, "but rather considera- tion paid by the utility for the grant of the fran- chise," following City of Plant City), cert. denied, appeal dismissed, 359 So.2d 1212 (Fla.1978). See also Jacksonville Port Auth. v. Alamo Rent-A-Car, Inc., 600 So.2d 1159, 1162 (Fla. 1st DCA) (" 'In common parlance, a tax is a forced charge or im- position, it operates whether we like it or not, and in no sense depends on the will or contract of the one on whom it is imposed.' ") (quoting State ex rei. Gulfstream Park Racing Ass'n v. Florida State Racing Comm'n, 70 So.2d 375, 379 (Fla.1953)), re- view denied, 613 So.2d 1 (Fla. 1992). We therefore conclude that the trial court erred in characterizing the franchise fees at bar, which constituted consid- eration for the contractual grant of the right to use county rights-of-way, as taxes. 7. [11] The court finally ruled, assuming the validity of the ordinances in question, that under the express language in the ordinances, the utilities had the right to tenninate their respective franchises by giv- ing the requisite notice specified therein, and be- cause they had complied with such conditions, they lawfully exercised their rights to tenninate unilater- ally their franchise agreements, We agree. The or- dinances expressly provide that before a utility's right to tenninate can be extinguished, all utilities must agree to the terms of the franchise within two years. As the telephone utilities failed to particip- ate, the condition failed, and the explicit language of the ordinances authorized the unilateral tennina- tion. The counties, however, assert that because they <<;) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. htto:/ /web2. westla W .comlnrintlnri ntstream. FI !':nx?!':v=SnJ it A7nrft= l-lTMT P A'r; f'1'n=l\.T ",t~..t RT 1 ()/l c: l'"l{){)(\ 635 So.2d 96 151 P.U.RAth 552, 635 So.2d 96, Uti!. L. Rep. P 26,391,19 Fla. L. Weekly D703 (Cite as: 151 P.U.R.4th 552, 635 So.2d 96) substantially perfonned their agreements and/or made good-faith efforts to perform their portion of the contracts, but were prevented from fulfilling the same by the action of other parties, tennination should be denied. We find these arguments unavail- ing in that the key provisions of the ordinances are couched in tenns of the fairness of spreading the financial burden between all of the utilities, which purpose was defeated once the telephone companies refused to enter into the agreements. AFFIRMED in part, REVERSED in part, and RE- MANDED for judgment consistent with this opin- ion. BARFIELD and BENTON, n., concur. Fla.App. 1 Dist.,1994. Santa Rosa County v, Gulf Power Co. 151 P.U.RAth 552, 635 So.2d 96, Uti!. L. Rep. P 26,391, 19 Fla. L. Weekly D703 END OF DOCUMENT (Q 2009 Thomson Reuters, No Claim to Orig. US Gov. Works. httn:/ /weh2. westlaw.com/nrint/nrintstff~~m ~sm(?sv=~nlit Rrnrfl-=HTf\tfT p ~ifrn=l\Tnt<;)...tJlT yage lU or IV Page 10 1 ()/l ,f')()()O West law. 603 So.2d 587,17 Fla. L. Weekly Dl733 (Cite as: 603 So.2d 587) c District Court of Appeal of Florida, Second District. HILLSBOROUGH COUNTY, a political subdivi- sion of the State of Florida, Appellant, v. FLORIDA RESTAURANT ASSOCIATION, INe., Appellee. No. 91-02077. July 17, 1992, Restaurant association brought action against county for declaratory and injunctive relief after county enacted ordinance requiring health warning sign in establishments that serve alcohol. The Cir- cuit Court for Hillsborough County, John M. Gil- bert, J., granted judgment for association, and the county appealed. The District Court of Appeal, Da- nahy, Acting C.J., held that: (1) association had standing to bring action on behalf of its members; (2) county ordinance was not expressly preempted by state food protection statute relating to public health; (3) subject matter of ordinance was not im- pliedly preempted by state's interest in conduct, management and operation of manufacturing, pack- aging, distributing and selling aspects of alcohol; and (4) county ordinance was not inconsistent with general law. Reversed and remanded. West Headnotes [1) Associations 41 oC=20(1) 41 Associations 41 k20 Actions by or Against Associations 41 k20( 1) k. In General. Most Cited Cases Restaurant association satisfied requirements for association standing for action seeking declaratory and injunctive relief on behalf of its members after county enacted ordinance requiring health warning rage 1 or I Page 1 signs in establishments that serve alcohol, where ordinance directly affected 41 % of total county membership in association, though small percent- age of total members of association. [2] Municipal Corporations 268 oC=64 268 Municipal Corporations 268III Legislative Control of Municipal Acts, Rights, and Liabilities 268k64 k. Nature and Scope of Legislative Power in General. Most Cited Cases To find a subject matter expressly preempted to the state, the express preemption language must be a specific statement; express preemption cannot be implied or inferred, [3] Intoxicating Liquors 223 oC=u 223 Intoxicating Liquors 2231 Power to Control Traffic 223k9 Delegation of Powers 223kl1 k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases County health warning sign requirement for estab- lishments serving alcohol was not preempted by state ,law absent defmite express preemption provi- sion pertaining to consumer warning signs; the state legislature expressly preempted only health con- cerns in the food handling context. [4] Counties 104 oC=24 104 Counties 10411 Government I0411(A) Organization and Powers in Gener- al 104k24 k. Legislative Control of Acts, Rights, and Liabilities. Most Cited Cases Intoxicating Liquors 223 €;::::>11 223 Intoxicating Liquors 2231 Power to Control Traffic ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, httn'//wf'h? Wf'~tbUI ('()m/nrtnt/n1"lntd1"13"n'l "C'....v')C',,=C....l;filr....~++-U'rll..H D O.:.t.'___lo. T _.0.("1_.0. 0, 1^J1~/"'^^_ 603 So.2d 587,17 Fla. L. Weekly Dl733 (Cite as: 603 So.2d 587) 223k9 Delegation of Powers 223kl1 k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases Express preemption language in subsequent section of statute enabling Department of Health and Re- habilitative Services to adopt rules for training of managers in food safety protection standards did not prohibit county from imposing health warning sign requirement, as generalized language of statute relating to regulation and inspection did not ex- pressly refer to signage requirements and general words were limited by narrower express preemption language, respecting standards for training, testing, and ranking. F.S.1989, 9 381.061(9). [5] Intoxicating Liquors 223 oC=ll 223 Intoxicating Liquors 2231 Power to Control Traffic 223k9 Delegation of Powers 223kll k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases Since subject matter of ordinance requiring warning sign was founded on public health concern about alcohol consumption in certain circumstances, it was not impliedly preempted by state's interest in conduct, management and operation of manufactur- ing, packaging, distributing and selling aspects of alcohol. [6] Intoxicating Liquors 223 oC=ll 223 Intoxicating Liquors 2231 Power to Control Traffic 223k9 Delegation of Powers 223kI I k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases Absent express preemption provision about posting of health warning signs on premises licensed to serve alcohol, only if there is danger of conflict with pervasive regulatory scheme of senior legislat- ive body will actions of junior legislative body be held to be impliedly preempted. t'age L 01/ Page 2 [7] Counties 104 ~55 104 Counties 10411 Government 10411(C) County Board 104k55 k, Ordinances and By-Laws. Most Cited Cases County ordinance is inconsistent with general state law, for purposes of State Constitution, where it is contradictory in sense of legislative provisions which cannot coexist. West's F.S.A. Const. Art. 8, 9 l(g). [8] Intoxicating Liquors 223 oC=ll 223 Intoxicating Liquors 2231 Power to Control Traffic 223k9 Delegation of Powers 223kll k. Concurrent and Conflicting Regulations by State and Municipality. Most Cited Cases Ordinance requiring warning sign in establishment serving alcohol was not inconsistent with general state law, and thus ordinance was valid as proper exercise of county's broad residual power of self- government granted by State Constitution. West's F.S.A. Const. Art. 8, ~ leg). *588 Christine M. Beck,Asst. Co. Atty., Tampa, for appellant. Kenneth A. Hoffman and Stephen W. Metz of Messer, Vickers, Caparello, Madsen, Lewis, Gold- man & Metz, P.A., Tallahassee, for appellee, DANAHY, Acting Chief Judge. The Florida Restaurant Association [the Associ- ation] sued Hillsborough County, a chartered County [the County], seeking declaratory and in- junctive relief after the County enacted an ordin- ance requiring that a health warning sign be posted in certain establishments that serve alcohol. After both parties moved for summary judgment, the trial court entered final summary judgment in favor of the Association. In its judgment, the trial court de- clared the ordinance unconstitutional and pennan- @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, htto:llweb2.westlaw.c'om/nrint/nrintc;:trp~rn <lcnv?,,,,=~...l;t.Pr.....f+-U'T'l\ A'T D o_:.t'___... T _.Ll"I _L 0 "^/1~/_............... 603 So.2d 587, 17 Fla. L. Weekly D1733 (Cite as: 603 So.2d 587) ently enjoined its enforcement. The County ap- peals; we reverse. The ordinance at issue is No. 91-11 enacted by the County's governing body, the Board of County Commissioners, on February 2, 1991, and titled "Hillsborough County Alcoholic Beverage Public Awareness Ordinance." The ordinance requires that all vendors of alcoholic beverages in the county post a sign, in a size not less than 8 1/2 x 11 inches, conspicuously on their premises. The following words are required to be on the sign: "HEAL TH WARNING" ALCOHOL IN BEER, WINE SPIRITS AND LI- QUOR, ALONE OR IN COMBINATION WITH OTHER NON-ALCOHOLIC INGREDIENTS CAN CAUSE BIRTH DEFECTS ADDICTION INTOXICATION REDUCE YOUR RISKS: DO NOT DRINK DURING PREGNANCY. DO NOT DRINK BEFORE DRIVING OR OPER- A TING MACHINERY. DO NOT MIX ALCOHOL WITH OTHER DRUGS, BOTH PRESCRIPTION AND NON- PRESCRIPTION. IT CAN BE FATAL. Failure to post the sign could result in criminal pro- secution. In the trial court the Association did not dispute that consumption of alcohol carries with it the risks of which the sign warns but argued merely that the County acted ultra vires in enacting the ordinance given the state's pervasive regulatory scheme in the preparation, service, or sale of alcoholic beverages contained in chapters 561 and 562 as well as the regulation of food service establishments in chapter rage j or I Page 3 381. Even though the Association recognized that the County acted pursuant to its police power to protect the public health, safety, welfare, or morals of the community, it successfully argued that the field had been either expressly or impliedly pree- mpted to the state by this pervasive regulatory *589 scheme. Finally, the Association successfully con- tended that the County acted contrary to the local government article of our constitution when it en- acted an ordinance which is inconsistent with gen- erallaw. In this appeal the County raises three issues: (1) that the Association lacks standing to seek relief, (2) that there has been no implied or express pree- mption to the state, and (3) that the ordinance is not inconsistent with general law. The County contends that the subject matter of the ordinance is public health information. Therefore, the subject matter of the ordinance has not been preempted by the state's regulatory scheme for the manufacture, packaging, distribution, and sale of alcohol; and, further, the ordinance is not inconsistent with any general law; thus it is constitutional. STANDING [1] The Association, which has 2,766 members statewide, 154 of which operate in Hillsborough County, brought the suit on behalf of the thirty-sev- en of that number who serve alcoholic beverages on the premises of their public food establishments and who, accordingly, were affected by the ordinance. We agree with the trial court on this threshold issue and find that the Association has standing to contest the validity of the ordinance. That is so because the Association has met the three-prong test which con- fers standing to an association to sue for the benefit of its members who are more directly affected by the governmental action than the association itself. Further, we find that the three-prong test FNI for association standing in the context of administrative proceedings, Florida Home Builders Ass'n v. Dep't of Labor & Employment Sec., 412 So.2d 351 ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. httn'//wf'h? 'J\1f'"tl~uT ('{)m/nr;nt/nr'ntcotr"'''..... """'''')n..-C'_1:..0.__A_TT'T'~ A'T r' O_~.L'.h_"T ,r, . n 603 So.2d 587,17 Fla. L. Weekly DI733 (Cite as: 603 So.2d 587) (Fla. 1982), is equally applicable to the case before us. See also Hunt v, Washington State Apple Ad- vertising Comm'n, 432 U.S, 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); City of Lynn Haven v. Bay County Council of Registered Archi- tects, Inc, , 528 SO.2d 1244 (Fla. 1st DCAI988); Florida Ass'n of Counties, Inc. v. Dep't of Admin., Div. of Retirement, 580 So.2d 641 (Fla. 1 st DCA 1991), affd, 595 So.2d 42 (Fla. 1992). Although the County argues that only thirty-seven out of the total 2,766 members of the Association are directly af- fected by the ordinance, it neglects to note that these thirty-seven represent forty-one percent of the total Hillsborough County membership in the Asso- ciation. We do not find that a specific number or percentage is required in order to meet the standing requirement of Florida Home Builders but only that a substantial number of the Association's members have been affected in the instant case. Looking at the remaining two prongs of the test for association standing, it is clear the Association has satisfied those requirements as well. FNI. The three-prong test of Florida Home Builders is: 1. A substantial number of the Associ- ation's members, although not necessar- ily a majority, are substantially affected by the challenged rule; 2. The subject matter of the rule is with- in the association's general scope of in- terest and activity; and 3. The relief requested is the type appro- priate for a trade association to receive on behalf of its members. See also Warth v. Seldin, 422 U.S. 490, 95 S.Ct, 2197, 2211-12, 45 L.Ed.2d 343 (1975), which provides that the associ- ation must allege that its members or any one of them are suffering immediate or threatened injury of the kind comprising t'age 4 ot/ Page 4 a justiciable issue had the members themselves brought suit and that the nature of the issue does not make the in- dividual participation of each association member indispensable to a proper resol- ution of the case. EXPRESS PREEMPTION [2][3][4] Turning to the substantive issue of pree- mption to the state of any regulation touching on the sale of alcohol within food service establish- ments, we agree with the County that the state regu- latory scheme is not so pervasive that the County has no room to act under its police powers. There is express preemption language in *590 section 381.061(9), Florida Statutes (1989),FN2 but this subsection merely enables the Department of Health and Rehabilitative Services to adopt rules for the training of managers in food safety protec- tion standards when they are responsible for the storage, preparation, display, and serving of foods to the public. To find a subject matter expressly preempted to the state, the express preemption lan- guage must be a specific statement; express pree- mption cannot be implied or inferred. Board oj Trustees v. Dulje, 453 So.2d 177 (Fla. 2d DCA 1984), FN2. Section 381.061, Florida Statutes (1989), has been repealed, Ch. 91-297, ~ 58, Laws of Fla. Its substantive provisions were transferred to new section 381.0072 titled "Food protection" in a general reor- ganization of this chapter and the duties of the Department of Health and Rehabilitat- ive Services relating to the public health, The preemption language of section 381.061(9) provides: The regulation of food safety protection standards for any required training and testing of food service establishment personnel is hereby preempted to the state. The ranking of food service establishments is also preempted to the state, provided, however, that ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. nttn' / /ulPh? u,p<:tl~u, {'r\n1 I"'..;nt/n..;nt"t~an~ n~_ul')~.._Cl_l:~ Ou___A_TT'T''' IT T" n . ro 603 So,2d 587, 17 Fla. L, Weekly D 1733 (Cite as: 603 So.2d 587) any local ordinances establishing a ranking system in existence prior to October 1, 1988, shall remain in effect. The regulation and inspection of food ser- vice establishments licensed by chapter 509 and regulation of food safety protection standards for required training and testing of food service estab- lishment personnel are preempted to the state. (Emphasis added.) The Association would have us focus on the broad language, italicized above, of "regulation and inspection" in this statute which is in addition to the remaining narrower preemption language of "standards for ... training," "ranking" under certain circumstances, and "testing of ... per- sonnel." According to the Association, the broad language of "regulation and inspection" is indeed the express preemption which prohibits the County from imposing the sign requirement. We cannot agree. First, such generalized language does not ex- pressly refer to signage requirements as it must for us to fmd an express preemption. Board of Trustees v. Dulje. Second, using the well-established doc- trine of noscitur a sociis, which finds words of gen- eral import colored by the more particular words accompanying them, Shadow West Apartments, Ltd. v. State. Dep't of Transp., 498 So.2d 589 (Fla, 2d DCA 1986), we cannot construe the italicized lan- guage so broadly as the Association would wish; to do so would give the general words a meaning wholly unrelated to the more specific tenns in this subsection. See id. The broad-brush interpretation the Association wishes us to adopt would render the other narrower express preemption language, re- specting standards for training, testing, and ranking, redundant and useless. We must assume that the le- gislature did not enact a pointless provision. John- son v. Feder, 485 So.2d 409 (Fla. 1986); City oj North Miami v. Miami Herald Publishing Co., 468 So.2d 218 (Fla. 1985). Thus, we cannot agree with the trial court that a health warning sign require- ment treads on ground expressly reserved by the state to itself in chapter 381.061(9). Although the legislature deals with health concerns in the food handling context in chapter 381, there is no ground to equate those concerns with the County's regard- Page 5 of7 Page 5 ing alcohol consumption as set forth in the ordin- ance absent a defmite express preemption provision pertaining to consumer warning signs, IMPLIED PREEMPTION [5][6] We also agree with the County that since the subject matter of the ordinance is founded on a pub- lic health concern about alcohol consumption in certain circumstances, it has not been impliedly preempted by the state's interest in the conduct, management and operation of the manufacturing, packaging, distributing and selling aspects of alco- hol. Absent an express preemption provision about the posting of health warning signs on premises li- censed under chapters 561 and 562, only if there is a danger of conflict with the pervasive regulatory scheme of the senior legislative body will the ac- tions of the junior *591 legislative body be held to be impliedly preempted. Tribune Co. v. Cannella, 458 So.2d 1075, 1077 (Fla.l984) (construing the statutory scheme of chapter 119, the Public Records Act). Under the standard for detennining implied pree- mption in Tribune Co. v. Cannella, the legislative scheme must be so pervasive that it completely oc- cupies the field, thereby requiring a fmding that an ordinance which attempts to intrude upon that field is null and void. The Association alleges that Flor- ida's scheme regulating alcohol manufacture, pack- aging, distributing and selling meets this require- ment. The Association fails to recognize, however, that this scheme itself reserves spheres of regula- tion to junior legislative bodies. See, e.g., ~ 561.14 (hours of operation in absence of county or muni- cipal ordinance); ~ 562.45(2)(a) (local regulation of hours and location of operation, sanitary regula- tions); ~ 562.45(2)(b) (type of entertainment or conduct permitted in licensed premises); and, not least of all, Art. VIII, ~ 5, Fla. Const. (local option whether to allow sale of alcohol in the county at all). Before the legislature in 1987 specifically re- served to counties the right to regulate entertain- ment and conduct in licensed premises, this court @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2.westlaw.comlprintlprintstream.asox?sv=Sn 1 it&nrft= HTMT P A'r; f'1"n=l\T ,,+1;:' ~+ P. 1 1'\/1 ~/"""f'\I"\^ 603 So.2d 587,17 Fla. L. Weekly Dl733 (Cite as: 603 So.2d 587) had already held that local government acts are not specifically limited to those referenced by the Beverage Law, Board of County Comm'rs v. Dex- terhouse, 348 So.2d 916 (Fla. 2d DCA 1977), afJ'd sub nom. Martin v. Board of County Comm'rs, 364 So.2d 449 (Fla. 1978), appeal dismissed, 441 U,S. 918,99 S.Ct, 2024, 60 L.Ed.2d 392 (1979). In Dexterhouse, we held that an ordinance prohibit- ing any female from displaying her breasts in a cer- tain manner in a licensed establishment did not in- terfere or conflict with the state's regulation of alco- hol and that the ordinance there was a valid exer- cise of the county's police power. The instant ordin- ance does not even rise to the level of prohibiting certain conduct as did the ordinance in Dexter- house. Although the County admits that its aim is to influence conduct, the sign mainly functions as an educational tool so that patrons who consume alco- hol do so with full infonnation as to the possible consequences in the enumerated circumstances. The patron is obviously free to ignore the warning. In sum, we find that the legislative scheme is not so pervasive that it has completely occupied the field thereby impliedly preempting the ordinance. INCONSISTENT WITH GENERAL LAW [7][8] Having thus far found that the ordinance has been neither expressly nor impliedly preempted by state law, our final task is to detennine whether, un- der article VIII, section 1 (g), Florida Constitution (1968), the County, pursuant to its charter, has en- acted an ordinance which is inconsistent with gen- eral law.FN3 Board of Trustees v. Dulje. If it has enacted such an inconsistent ordinance, the ordin- ance must be declared null and void. FN3. Article VIII, section leg), of the Flor- ida Constitution provides: (g) CHAR TER GOVERNMENT. Counties operating under county charters shall have all powers of local self- government not inconsistent with gener- Page 60f7 Page 6 al law, or with special law approved by vote of the electors. The governing body of a county operating under a charter may enact county ordinances not incon- sistent with general law. The charter shall provide which shall prevail in the event of conflict between county and municipal ordinances. This section, which first appeared in the new Florida Constitution of 1968, "provides for the broadest extent of county self-government or 'home rule' as it is commonly described." Art. VIII, ~ 1 (g), Fla. Const., D'Alemberte com- mentary, reprinted in 26A Fla,Stat.Ann. 266,271 (West 1970). An ordinance is inconsistent with general law where it is "contradictory in the sense of legislative provisions which cannot coexist." State ex rei. Dade County v. Brautigam, 224 So.2d 688 (Fla.1969) (construing an ordinance concerning ci- garette taxes). The Association has cited no law to us, nor have we found any, which can be construed as incapable of coexisting with the ordinance we re- view, and therefore inconsistent. If anything, the re- quirement of a health warning sign shows a vendor's concern for the health and well-being of the clientele. Compare ~~ 561.701-706, Fla. Stat. *592 (1989) (the Responsible Vendor's Act). The Responsible Vendor's Act provides for a voluntary program which does have a sign require- ment as a precondition to certification, but the sign required there merely warns that underage patrons who attempt to buy alcohol and those who use con- trolled substances illegally on the premises may be subject to ejectment. The Association wams that in the future the legislature could impose a different sign-posting requirement (or a requirement that no signs be posted at all) within its pervasive regulat- ory scheme which would result in a conflict with the ordinance before us. That argument is unper- suasive because it suggests that we speculate on fu- ture legislation. We decline to do so. We fmd that <<) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.comlprint/printstream. aSDx?sv=Sn J it &nrft= RTMT P .R,; f't"Yl= 1\T Ate ",t 9. 1f\/1~/""^^^ 603 So.2d 587, 17 Fla. L. Weekly D1733 (Cite as: 603 So.2d 587) the ordinance is not inconsistent with general law. Thus, the ordinance is valid as a proper exercise of the County's broad, residual power of self- government granted it by article VIII, section leg) of the state constitution. Although not necessary to our holding, we take note of section 125.01, Florida Statutes (1991), the general law granting certain powers of self- government to counties which do not operate under a charter. This statute, implementing article VIII, section l(t) of the Florida constitution (non-charter government), describes the more limited powers of self-government enjoyed by such counties. Speer v. Olson, 367 So.2d 207 (Fla. 1978). See generally Wolff, Home Rule in Florida: A Critical Appraisal, XIX Stetson L.Rev. 853, 881 (1990); Sparkman, The History and Status of Local Government Powers in Florida, XXV U.Fla,L.Rev. 271 (1973); Note, Charter County Government in Florida: Past Litigation and Future Proposals, XXXIII U.Fla.L.Rev. 505 (1981). Under this more limited "home rule" power, subsection (1)(0) provides that a non-chartered county may "establish and enforce regulations for the sale of alcoholic beverages in the unincorporated areas of the county pursuant to general law," and, subsection (I)(w) allows the non-chartered county to "exercise all powers and privileges not specifically prohibited by law." It is clear, then, that even if we were reviewing this or- dinance in a case where it had been enacted by a non-chartered county, we would reach the same res- ult. This would be so because there is nothing in section 125.0 I, or elsewhere in our statutes, prohib- iting a non-chartered county from enacting such a health waming ordinance under the powers of self- govemment granted to it by the legislature. It would not be reasonable to hold that the ordinance would be valid under article VIII, section l(t) (non-charter government) and its implementing statute, section 125.01, but not valid under the broader power of self-government pursuant to art- icle VIII, section leg) (charter government). This analysis of article VIII, section 1(t) and Florida statute section ] 25.0 1 only serves to underscore the rage / or / Page 7 conclusion reached under the analysis presented earlier in this opinion. In sum, we fmd no constitutional or legislative obstacle to this ordinance. Accordingly, we reverse the fmal summary judgment entered in favor of the Association and remand with instructions to enter a fmal summary judgment in favor of the County. FRANK and PARKER, JJ., concur. Fla.App. 2 Dist.,1992. Hillsborough County v. Florida Restaurant Ass'n, Inc. 603 So.2d 587, 17 Fla. L. Weekly D 1733 END OF DOCUMENT ~ 2009 Thomson Reuters. No Claim to Orig, US Gov. Works. http://web2.westlaw.comlprint/printstream.aspx?sv=Solit&orft= HTML E& i fm= N ()tSpt /iT 10/1,nono West law. 812 So.2d 504, 27 Fla. L. Weekly D649 (Cite as: 812 So.2d 504) c District Court of Appeal of Florida, Third District. NA TIONAL RIFLE ASSOCIATION OF AMER- ICA, INC., Unified Sportsmen of Florida, Inc., W, David Tucker, Sr., and John Doe, Appellants, v. CITY OF SOUTH MIAMI, Appellee. No.3DOI-1027. March 20, 2002. National fireanns organization brought declaratory judgment action challenging city's firearms ordin- ance. The Circuit Court, Miami-Dade County, Thomas S, Wilson Jr., 1., granted summary judg- ment in favor of city, and firearms organization ap- pealed. The District Court of Appeal, Fletcher, 1., held that: (1) declaratory judgment action challen- ging city's fireanns ordinance was ripe for detenn- ination, and (2) city's firearms ordinance was null and void. Reversed and remanded. West Headnotes [1) Declaratory Judgment 118A oC=128 ll8A Declaratory Judgment 1 18AII Subjects of Declaratory Relief lI8AII(F) Ordinances ll8Akl28 k. Ordinances in General. Most Cited Cases Declaratory judgment action challenging city's fire- anns ordinance was ripe for detennination under Declaratory Judgment Act; the city, national fire- anns organization, and the Attorney General all had an interest in reaching a detennination, and the pro- visions of the Declaratory Judgment act were to be liberally construed. West's F,S,A, ~ 86.021. [2] Municipal Corporations 268 oC=592(1) page 1 or j Page 1 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(l) k. In General. Most Cited Cases Weapons 406 oC=3 406 Weapons 406k3 k. Constitutional, Statutory, and Local Regulations. Most Cited Cases City's fireanns ordinance was null and void; state legislature expressly preempted the entire field of frreann and ammunition regulation. West's F.S.A. ~ 790.33. *504 Montero, Finizio, Velasquez & Reyes (Ft. Lauderdale); Stephen P. Halbrook (Fairfax, Virgin- ia), for appellants. Nagin, Gallop & Figueredo and Earl G. Gallop, Miami, for City of South Miami; Paul F. Hancock, Deputy Attorney General; Parker D. Thomson, Spe- cial Assistant Attorney General; Michael J. Nei- mand, Assistant Attorney General, as amicus curiae for Attorney General Robert A. Butterworth, for ap- pellee. Before COPE, FLETCHER, and RAMIREZ, n. FLETCHER, Judge. [1][2] The National Rifle Association and others have appealed the trial court's summary judgment, in favor of the City of South Miami, concluding that this action for declaratory judgment is not ripe for detennination. Involved is City of South Miami ordinance 14-00-1716, regulating frreartns by es- tablishing certain safety standards therefor. The de- claration the *505 appellants are seeking includes a detennination that the City's ordinance is ultra vires <<:;> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. httn'//urph? ,vpc;:tbur (,()111/nrint/nrint<:trp~rn ~CT'\v?c"=~T'\litRT1"\..-A=U'T'l\,fT l::;' Rrf"....= t"....Rr......t= 1 f\ 11 <;: 1"If\f\f\ 812 So.2d 504, 27 Fla. L. Weekly D649 (Cite as: 812 So.2d 504) because the legislature expressly preempted the en- tire field of fire ann and ammunition regulation by enactment of section 790.33, Florida Statutes (2000). This statute reads in pertinent part: '(1) PREEMPTION.-Except as expressly provided by general law, the Legislature hereby declares that it is occupying the whole field of regulation of fireanns and ammunition, including the pur- chase, sale, transfer, taxation, manufacture, own- ership, possession, and transportation thereof, to the exclusion of all existing and future county, city, town, or municipal ordinances or regulations relating thereto. Any such existing ordinances are hereby declared null and void. :3) POLICY AND INTENT.- :a) It is the intent of this section to provide unifonn fireanns laws in the state; to declare all ordin- ances and regulations null and void which have been enacted by any jurisdictions other than state and federal, which regulate fireanns, ammuni- tion, or components thereof; to prohibit the enact- mentof any future ordinances or regulations re- lating to fireanns, ammunition or components thereof unless specifically authorized by this sec- tion or general law; and to require local jurisdic- tions to enforce state fireanns laws." In Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. 3d DCA), rev, denied, 799 So.2d 218 (Fla,200 I), this court specifically stated that the le- gislature, through section 790.33, has indeed ex- pressly preempted the entire field of fire ann and ammunition regulation. Authority for the state courts to render declaratory judgments regarding municipal ordinances may be found in section 86.021, Florida Statutes (2000): 'Any person ... whose rights ... are affected ... by municipal ordinance ... may have detennined any question of ... validity arising under such ... mu- nicipal ordinance ... and obtain a declaration of page 1.. ot j Page 2 rights ... thereunder." In the recent Florida Supreme Court decision con- struing Chapter 86, Florida Statutes, Olive v. Maas, 811 So.2d 644, (Fla.2002), the court made it clear that the Declaratory Judgment Act is to be liberally construed, The court cited and quoted from X Corp. v. Y Person, 622 So.2d 1098, 1100 (Fla. 2d DCA), rev. denied, 618 So.2d 212 (Fla. 1993): 'The goals of the Declaratory Judgment Act are to relieve litigants of the common law rule that a de- claration of rights cannot be adjudicated unless a right has been violated and to render practical help in ending controversies which have not reached the stage where other legal relief is im- mediately available. To operate within this sphere of anticipatory and preventive justice, the Declar- atory Judgment Act should be liberally con- strued. " Here we have various well-meaning litigants eye- ball to eye-ball across counsel table, the City won- dering whether its ordinance has been preempted or whether it can enforce its own collective will over fireanns, others wondering whether they are going to be illegally prosecuted by the City come next dove hunting season, and the Florida Attorney Gen- eral wondering whether the judiciary will agree with his opinion on municipal regulation of fire- anns (AGO 2000-42). In light of these doubts and confrontations and in the liberal spirit of the De- claratory Judgment Act, we hold that this action is not premature and that the trial court erred in enter- ing its final *506 summary judgment for the City, We also hold that the City's ordinance no. 14-00-1716 is null and void as it is in conflict with section 790.33, Florida Statutes. We remand this case to the trial court for further proceedings con- sistent herewith. Reversed and remanded. Fla.App. 3 Dist.,2002. National Rifle Ass'n of America, Inc, v, City of South Miami <<;) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2.westlaw.comlnrintlnrintstream .H~nx?~v=Snlit Rrnrft=l-lTMT p ~Tfn= tn.....R........i= 1 f\ /1 C /'l """ 812 So,2d 504, 27 Fla, L. Weekly D649 (Cite as: 812 So.2d 504) 812 So.2d 504, 27 Fla. L. Weekly D649 END OF DOCUMENT @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. htto ://web2, westlaw .comlorint/orintstream .asnx ?sv=Sn 1 it &nrft= HTMT .FRrfn= tnnA'nnt= rage j or j Page 3 1 () /1 "f') {){)O Westlaw. 614 So.2d 468, 18 Fla. L. Weekly S46 (Cite as: 614 So.2d 468) ~ Supreme Court of Florida. Carl L. THOMAS, Petitioner, v. STATE of Florida, Respondent. No. 78055. Jan. 7,1993. Rehearing Denied March 23, 1993. Defendant was convicted in the Circuit Court, Or- ange County, Michael F. Cycmanick, J., pursuant to plea of nolo contendere, of carrying concealed fIre- ann. Defendant appealed. The District Court of Ap- peal, 583 So,2d 336, affinned and certified ques- tion. The Supreme Court, Barkett, C.J., held that: (I) city could not enact ordinance imposing crimin- al penalties for failure to have safety equipment on bicycle ridden in city limits, conduct essentially identical to that which had been decriminalized by state; (2) full custodial arrest for violation of ordin- ance violated Constitution; but (3) evidence seized incident to arrest was not subject to suppression. Question answered. West Headnotes [I] Municipal Corporations 268 oC=l1l(2) 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268kl1l Validity in General 268kI11(2) k. Conformity to Constitu- tional and Statutory Provisions in General. Most Cited Cases Municipal ordinances are inferior to laws of state and must not conflict with any controlling provision of statute. 12] Municipal Corporations 268 ~65 page 1 at I Page 1 268 Municipal Corporations 2681II Legislative Control of Municipal Acts, Rights, and Liabilities 268k65 k. Local Legislation. Most Cited Cases Although municipalities and state may legislate concurrently in areas that are not expressly preemp- ted by state, municipality's concurrent legislation must not conflict with state law. [3J Municipal Corporations 268 ~592(3) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(3) k. Different Punishment, Penalty, or License Fee Prescribed by Ordinance, Most Cited Cases While municipality may provide penalty less severe than that imposed by state statute, ordinance pen- alty may not exceed penalty imposed by state. 14] Municipal Corporations 268 oC=592(1) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(1) k. In General. Most Cited Cases City could not enact ordinance imposing criminal penalties for failure to have safety equipment on bi- cycles ridden in city limits, conduct essentially identical to that which had been decriminalized by state. West's F.S.A. ~~ 316.001 et seq., 316.002, 316.008. 15J Automobiles 48A oC=349(15) 48A Automobiles ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 614 So.2d 468, 18 Fla. L. Weekly S46 (Cite as: 614 So.2d 468) 48A VII Offenses 48A VII(B) Prosecution 48Ak349 Arrest, Stop, or Inquiry; Bail or Deposit or Inquiry 48Ak349(l4) Conduct of Arrest, Stop, 48Ak349(l5) k. Custodial Arrest or Less Punitive Measures. Most Cited Cases Full custodial arrest of defendant for violating or- dinance requiring bicycles to have bells when that conduct was noncriminal in nature was unreason- able and violation of Fourth Amendment and State Constitution. U.S.C.A. Const.Amend. 4; West's F.S.A. Const. Art. 1, S 12. (6] Arrest 35 oC=70(1) 35 Arrest 35II On Criminal Charges 35k70 Custody and Disposition of Prisoner 35k70(l) k. In General. Most Cited Cases Automobiles 48A oC=349(15) 48A Automobiles 48A VII Offenses 48A VII(B) Prosecution 48Ak349 Arrest, Stop, or Inquiry; Bailor Deposit or Inquiry 48Ak349(14) Conduct of Arrest, Stop, 48Ak349( 15) k. Custodial Arrest or Less Punitive Measures. Most Cited Cases When person is charged with violating municipal ordinance regulating conduct that is noncriminal in nature, such as in traffic control area, statute only penn its person to be detained for limited purpose of issuing ticket, summons, or notice to appear; full custodial arrest in such situations is unreasonable and violation of Fourth Amendment and State Con- stitution. U.S.C.A. Const.Amend. 4; West's F.S.A. Const. Art. 1, ~ 12. [7] Criminal Law 110 €:::=>394.4(9) 110 Criminal Law Page 2 of7 Page 2 Il0XVII Evidence II0XVII(I) Competency in General 110k394 Evidence Wrongfully Obtained 110k394.4 Unlawful Search or Seizure 110k394.4(9) k. Arrest or Stop, Search Incidental To; Validity of Stop or Arrest. Most Cited Cases Although full custodial arrest of bicyclist for viola- tion of municipal ordinance requiring bicycles to have bells violated Constitution, evidence obtained in search incident to arrest, made in reliance on or- dinance, would not be suppressed. U.S.C,A. Const.Amend. 4; West's F.S.A. Const. Art. 1, S 12. [8] Municipal Corporations 268 oC=592(3) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(3) k. Different Punishment, Penalty, or License Fee Prescribed by Ordinance. Most Cited Cases Municipal ordinance penalties may not exceed state penalties for similar or identical offenses. *469 James B. Gibson, Public Defender, Barbara L. Condon and Michael S. Becker, Asst. Public De- fenders, Daytona Beach, and Steven G. Mason of Law Offices of Steven G. Mason, Orlando, for peti- tioner. Robert Butterworth, Atty. Gen: and Belle B. Turn- er, Asst. Atty. Gen., Daytona Beach, for respond- ent. James T. Miller of Florida Ass'n Of Criminal De- fense Lawyers, Jacksonville, amicus curiae for peti- tioner. Dennis E. Lyles, City Atty., Robert Scott Walker, City Prosecutor, and Karen E. Black-Barron of City of Fort Lauderdale Mun. Prosecutor, Fort Lauder- dale, and Kraig A. Conn, Asst. Gen. Counsel of Florida League of Cities, Inc., Tallahassee, amici ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. . 614 So.2d 468, 18 Fla. L. Weekly S46 (Cite as: 614 So.2d 468) curiae for respondent. BARKETT, Chief Justice. We have for review Thomas v. State, 583 So.2d 336 (Fla. 5th DCA 1991), in which the lower court cer- tified two questions of great public importance: FNI FNI. We have jurisdiction pursuant to art- icle V, section 3(b)(4) of the Florida Con- stitution. I) Can a city enforce a municipal ordinance requir- ing the existence of safety equipment on a bi- cycle ridden in the city limits by arresting a per- son who violates the ordinance? 2) Did the repeal of section 165.19, Florida Statutes (1973) eliminate a city's previously granted power to enact ordinances which prohibit various types of conduct by individuals within its juris- diction, and which punishes violators by "criminal means": arrest; fines; imprisonment? We answer the certified questions in the context of the specific factual situation presented in this case. On the morning of June 16, 1989, an Orlando Po- lice Department officer was patrolling a predomin- antly black neighborhood known for drug activity when he saw Petitioner Carl Thomas riding a bi- cycle that was not equipped with a bell or gong as required by city ordinance. The officer stopped Thomas and arrested him for violation of the ordin- ance. Incidental to the arrest, the officer searched Thomas and found a handgun in his pocket. Thomas was charged with carrying a concealed fireann in violation of section 790.0 I, Florida Stat- utes (1987). Thomas moved to suppress the seized evidence on various grounds, including that it was the result of an illegal and warrantless search, that the ordinance was preempted by state statutes, that he could not Page j 01/ Page 3 be arrested for violation of a municipal ordinance, and that the ordinance was unconstitutional. The motion to suppress was denied. Thomas entered a plea of nolo contendere to the charge of carrying a concealed firearm and reserved the right to appeal the denial of his motion to suppress. The Fifth Dis- trict Court of Appeal, en bane, affinned the convic- tion and found the ordinance to be constitutional. The *470 court's decision was amended at Thomas' request to add the two certified questions.FN2 FN2. This Court pennitted amici to join both parties: the Florida Association of Criminal Defense Lawyers filed a brief supporting Thomas' position, while the City of Fort Lauderdale and the Florida League of Cities filed briefs supporting the State's position. Turning to the first certified question, we note that violations of traffic offenses, except in certain situ- ations not relevant here, are "noncriminal infrac- tions" subject to civil penalties. ~~ 318.14, 316.655, Fla.Stat. (1989). An "infraction" is defined as "a noncriminal violation which is not punishable by incarceration and for which there is no right to a tri- al by jury or a right to court appointed counsel." ~ 318.13(3), Fla.Stat. (1989). Bicycles are regulated in chapter 316, Florida Stat- utes (1989), the Florida Unifonn Traffic Control Law. The stated purpose of chapter 316 is to "make uniform traffic laws to apply throughout the state and its several counties and unifonn traffic ordin- ances to apply in all municipalities." ~ 316.002, Fla.Stat. This section notes that municipalities are authorized in section 316.008 to enact supplemental measures to "control certain traffic movement or parking in their respective jurisdictions." Id. Bi- cycles are listed in section 316.008(1 )(h) as one of those subjects that municipalities are permitted to regulate on the streets and highways under their jur- isdictions within the reasonable exercise of the po- lice power. With the exception of the regulations permitted by section 316.008, local governments are specifically prohibited from passing or attempt- ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 614 So.2d 468, 18 Fla. L. Weekly 846 (Cite as: 614 So.2d 468) ing to enforce any ordinance in conflict with the provisions of chapter 316. ~ 316.002, Fla.Stat. (1989). [1][2][3] Municipal ordinances are inferior to laws of the state and must not conflict with any con- trolling provision of a statute. As this Court stated in Rinzler v. Carson, 262 So.2d 661, 668 (Fla.l972), "[a] municipality cannot forbid what the legislature has expressly licensed, authorized or re- quired, nor may it authorize what the legislature has expressly forbidden." Although municipalities and the state may legislate concurrently in areas that are not expressly preempted by the state, a municipal- ity's concurrent legislation must not conflict with state law. City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla.1981). While a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state. Edwards v. State, 422 So.2d 84 (Fla. 2d DCA 1982). [4] As discussed above, the legislature in chapters 316 and 318, Florida Statutes, has detennined that traffic violations, including those relating to bi- cycles, should be punished by civil penalties. A city may not enact an ordinance imposing criminal pen- alties for conduct essentially identical to that which has been decriminalized by the state. Therefore, we find that the penalty imposed by the Orlando ordin- ance is in conflict with state law. In answering the specific question of whether the city may "arrest" a person for violating a bicycle bell ordinance, it is appropriate to define what is meant by "arrest." Section 901.15(1), Florida Stat- utes (1989), provides that "[a] law enforcement of- ficer may arrest a person without a warrant when ... the person has violated a municipal or county or- dinance in the presence of the officer." The term "arrest" generally is defined as follows: "To deprive a person of his liberty by legal author- ity, Taking, under real or assumed authority, cus- tody of another for the purpose of holding or de- rage "t or I Page 4 taining him to answer a criminal charge or civil de- mand." Black's Law Dictionary 109-10 (6th ed. 1990). "Arrest" has been used loosely in our cases to apply not only to situations in which the person detained is suspected of committing a crime, but also to situations in which a person is "arrested" for a noncriminal infraction. See, e.g., State v. Parsons, 569 So.2d 437 (Fla.1990) (using the tenn "arrest" to apply to a situation in which an individual was stopped by the Florida Marine Patrol for a traffic violation). As Judge Harris noted in the court be- low, the tenn "arrest" as it relates to *471 violation of a municipal ordinance can be construed as mean- ing "to detain for the purpose of issuing a ticket, a summons or a notice to appear." Thomas, 583 So.2d at 346 (Harris, J., dissenting). Therefore, "arrest" as it is used in section 901.15(1) does not necessarily mean a full custodial arrest and incident search. This Court has stated that while a law enforcement officer clearly is entitled to stop a vehicle for a traffic violation, the stop must last no longer than the time it takes to write the traffic citation. Cress- well v. State, 564 So.2d 480, 481 (Fla.1990). Other courts also have noted the unreasonableness of full custody arrests for minor infractions. In Barnett v. United States, 525 A.2d 197 (D.C.Ct.App.1987), that court held that it was unreasonable under the Fourth Amendment for police to effect a full- custody arrest accompanied by a body search after stopping an individual for violating the traffic regu- lation of "walking as to create a hazard," [5] In the case at hand, it is hardly reasonable to subject this Petitioner, who rode a bicycle without a bell, to a full custodial arrest accompanied by a body search and a potential jail sentence. We agree with the Ninth Judicial Circuit's construction of the Orlando ordinance in Powers v. State, 45 Fla.Supp.2d 31 (Fla. 9th Cir.Ct.1990): By making it a crime to operate a bicycle without a bell the City has made wholly innocent conduct the subject of criminal prosecution. It has provided the police with unfettered power to ar- @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 614 So,2d 468, 18 Fla. L. Weekly S46 (Cite as: 614 So.2d 468) rest and search citizens engaging in ordinary and customary behavior with no unlawful intent. It has created an ordinance which is susceptible to arbitrary and discriminatory enforcement.... While the City of Orlando may have some legit- imate interest in supplementing existing bicycle regulations, it cannot accomplish this goal by ad- versely impacting the fundamental rights and freedoms of its citizens. fd. at33, [6] We hold that when a person is charged with vi- olating a municipal ordinance regulating conduct that is noncriminal in nature, such as in the traffic control area, section 90 1,15( 1) only penn its a per- son to be detained for the limited purpose of issuing a ticket, summons, or notice to appear. A full cus- todial arrest in such situations is unreasonable and a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution. In so holding, we are cognizant that the United States Supreme Court has upheld a search incident to a custodial arrest for a traffic violation. United States v. Robinson, 414 U.S, 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U,S. 260, 94 S.Ct, 488, 38 L.Ed.2d 456 (1973). We also note that the Court in Robinson specifically de- clined to reach the question of whether a search would be appropriate when a police officer makes "a routine traffic stop," i.e., when the violator is is- sued a citation or notice to appear and is allowed to proceed. 414 U.S. at 237 n. 6, 94 S.Ct. at 477 n. 6. Because the latter scenario is all that is permitted, by state traffic laws regulating bicycles, Robinson and Gustafson are not controlling. [7] However, we agree with the court below that the evidence obtained in the search incident to Thomas' arrest should not be suppressed. Thomas, 583 So.2d at 336. The arrest was made in reliance on the city ordinance and thus falls within the rule established in Michigan v. DeFiIlippo, 443 U.S. 31, 99 S.Ct. 2627,61 L.Ed.2d 343 (1979). The Court in rage:) or I Page 5 DeFillippo stated that evidence obtained after a search incident to an arrest in reliance on a muni- cipal ordinance should not be suppressed even when the ordinance is subsequently declared uncon- stitutional. Id. at 40,99 S.Ct. at 2633. Turning to the second certified question, we are handicapped by the lack of a clear statement from the legislature regarding the appropriate penalties for violation of municipal ordinances. Section 775.08, Florida Statutes (1989), outlines classes and definitions of offenses. The terms "felony," "misdemeanor," and "noncriminal viola- tion" are defined and the *472 appropriate penalties outlined, but the section does not classifY a muni- cipal ordinance violation, nor does it list appropri- ate penalties for such a violation. The section does make clear that the term misdemeanor "shall not mean a conviction for any noncriminal traffic viola- tion of any provision of chapter 316 or any muni- cipal or county ordinance." ~ 775.08(2), Fla.Stat. (1989). Similarly, the section states that the term noncriminal violation "shall not mean any convic- tion for any violation of any municipal or county ordinance. Nothing contained in this code shall re- peal or change the penalty for a violation of any municipal or county ordinance." Id. ~ 775.08(3). The section goes on to state that the tenn "crime" shall mean a felony or a misdemeanor. Id. ~ 775.08(4). Thus, based on the above classifications, violation of a municipal ordinance is not a "crime," and it is not a "noncriminal violation" as defmed in Florida Statutes. FNJ FN3. Chapter 162, Florida Statutes (1989), relating to county and municipal code en- forcement, provides for fines and other noncriminal penalties for enforcement of ordinances. The chapter explicitly states, however, that its provisions are supple- mental and are not designed to prohibit a county or municipality from enforcing its codes or ordinances by other means. See ~~ 162.13, 162.21(8), Fla. Stat. (1989). Chapter 162, therefore, does not provide <<;) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 614 So.2d 468, 18 Fla. L. Weekly S46 (Cite as: 614 So.2d 468) guidance on the appropriate penalties for violation of a municipal ordinance. Simil- arly, section 775.082(5), Florida Statutes (1989), relating to penalties, is not helpful. It provides that "[a]ny person who has been convicted of a noncriminal violation may not be sentenced to a term of impris- onment nor to any other punishment more severe than a fine, forfeiture, or other civil penalty, except as provided in chapter 316 or by ordinance of any city or county, " (Emphasis supplied.) Before 1974, municipalities were expressly author- ized by statute to impose penalties for violations of municipal ordinances, with maximum penalties set at sixty days imprisonment and a $500 fine. ~ 165.19, Fla.Stat. (1973). The statute was repealed by chapter 74-192, Laws of Florida. The repeal left the statutes silent regarding the appropriate penal- ties for violation of municipal ordinances. See Op. Att'y Gen.Fla. 089-24 (April 21, 1989); Op.Att'y Gen.Fla. 081-76 (October 13, 1981). Article VIII, section 2(b) of the Florida Constitu- tion provides in relevant part: POWERS. Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perfonn muni- cipal functions and render municipal services, and may exercise any power for municipal pur- poses except as otherwise provided by law. Before the adoption of this provision in the 1968 constitutional revision, municipalities were creatures of legislative grace. Lake Worth Utilities Auth. v. City of Lake Worth, 468 So.2d 215, 217 (Fla. 1985). The purpose of including article VIII, section 2(b) in the revision was to give municipalit- ies inherent power to meet municipal needs; however, the power is not absolute or supreme to that of the legislature, and the provision was not de- signed to make local governments omnipotent. Lake Worth Utilities Auth., 468 So.2d at 217; City of Miami Beach v. Fleetwood Hotel, Inc., 261 So.2d rage 0 or I Page 6 801, 804 (Fla. 1972). Chapter 166, Florida Statutes (1989), implements article VIII, section 2(b) by pennitting municipalit- ies to exercise any power for municipal purposes except when expressly prohibited by law, City oj Miami Beach v. Forte Towers, Inc., 305 So,2d 764, 766 (Fla. 1974). Section l66.02l(3)(c) expressly ex- cludes from municipalities' powers "any subject ex- pressly preempted to state or county government by the constitution or by general law." Although this Court found in Jaramillo v. City oj Homestead, 322 So.2d 496 (Fla.1975), that a muni- cipality may enact ordinances adopting by refer- ence the criminal or penal statutes of the state, the question of imposing criminal penalties for viola- tion of municipal ordinances has not been directly presented to this Court since the repeal of section 165.19. The Attorney General, who has been presented with the question on several occasions, has opined that municipalities, pursuant to the home rule powers found in article VIII, section 2(b) and in chapter 166, Florida Statutes, possess the power to prescribe penalties for violations of their ordinances. See Op. *473 Att'y Gen. 081-76 (October 13, 1981); Op. Att'y Gen. 089-24 (April 21, 1989). Both opinions have also stated that limit- ations on penalties in chapters 316 and 318 and in sections 775.082 and 775.083, Florida Statutes, should serve as guidelines for any penalties im- posed for violation of municipal ordinances. [8] We agree with the Attorney General to the ex- tent that his opinions express the view that muni- cipal ordinance penalties may not exceed state pen- alties for similar or identical offenses. In the case at hand, as noted earlier, this means that the city may not punish by criminal penalties conduct that the state has decriminalized. We decline to further an- swer the second certified question in the hope that the legislature will clarify what types of penalties it intended to allow municipalities to impose for mu- nicipal ordinance violations. For the foregoing reasons, we approve the decision ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. rage / or / 614 So.2d 468, 18 Fla. L. Weekly 846 (Cite as: 614 So.2d 468) Page 7 below but disapprove the court's reasoning. It is so ordered. OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur. Fla.,1993. Thomas v. State 614 So.2d 468, 18 Fla. L. Weekly S46 END OF DOCUMENT ~ 2009 Thomson Reuters. No Claim to Orig. US Gov, Works, West law. 422 So.2d 84 (Cite as: 422 So.2d 84) c District Court of Appeal of Florida, Second District. Lawrence E. EDWARDS, Petitioner, v. STATE of Florida, Respondent. No. 82-1591. Nov. 19, 1982. Plaintiff filed petition for a writ of certiorari seek- ing review of a decision of the Circuit Court, Sara- sota County, Evelyn Gobbie, J., which reversed a decision of a county court declaring invalid the or- dinance under which defendant was charged. The District Court of Appeal, Grimes, J., held that: (1) city's authority to enact ordinances concerning sub- ject of drug abuse control was not preempted, and (2) to extent that municipal ordinance prohibiting possession of cannabis and cocaine set a greater penalty than that prescribed by state law, it was in- valid. Petition granted in part and denied in part. West Headnotes (I] Municipal Corporations 268 oC=592(1) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592( I) k. In General. Most Cited Cases City's authority to enact ordinances concerning sub- ject of drug abuse control was not preempted. F.SA ~ 166.021(3)(c). (2] Municipal Corporations 268 €=>1l1(2) Page 1 of3 Page I 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268k III Validity in General 268klll(2) k. Conformity to Constitu- tional and Statutory Provisions in General. Most Cited Cases A state statute always prevails over a conflicting municipal ordinance. (3] Municipal Corporations 268 €=>592(3) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(3) k. Different Punishment, Penalty, or License Fee Prescribed by Ordinance. Most Cited Cases A local ordinance does not conflict with a state stat- ute merely because it provides for a less severe penalty; however, an ordinance penalty cannot ex- ceed that of state law. [4] Municipal Corporations 268 €=>592(3) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592(3) k. Different Punishment, Penalty, or License Fee Prescribed by Ordinance. Most Cited Cases To extent that municipal ordinance prohibiting pos- session of cannabis and cocaine set a greater pen- alty than that prescribed by state law, it was invalid. West's F,S.A. ~~ 893.13(1)(e, f), 893.15,948.01. *85 Elliott C. Metcalfe, Jr., Public Defender, and <!) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.10&destination=atp&prft=H...11/1712009 422 So.2d 84 (Cite as: 422 So.2d 84) Becky A. Titus, Asst. Public Defender, Sarasota, for petitioner. Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for re- spondent. GRIMES, Judge. The state charged Edwards in county court with possession of less than one ounce of cannabis in vi- olation of Venice City Ordinance 888-81. The county court declared the ordinance invalid and granted Edwards's motion to dismiss. The circuit court reversed and reinstated the information. Ed- wards now brings this petition for certiorari seeking review of the circuit court's decision. The ordinance at issue prohibits the possession of cannabis and cocaine and prescribes penalties for the possession of varying amounts of each sub- stance. For example, a conviction for possession of one ounce (approximately twenty-eight grams) of cannabis would result in a penalty of at least forty- eight hours imprisonment and a fme of $150. The ordinance establishes increased minimum mandat- ory penalties for possession of cannabis up to one hundred pounds. It also sets comparable minimum mandatory penalties for the possession of up to sev- en grams of cocaine. The maximum penalty for any violation cannot exceed sixty days incarceration and a fine of $500. Thus, the City of Venice has chosen to proscribe certain conduct involving drugs which would constitute felonies under state law. [1] Initially, Edwards argues that the city did not have the authority to enact the ordinance since the legislature has preempted the subject of drug abuse control. The legislative fmdings of fact which ac- companied the passage of the Florida Comprehens- ive Drug Abuse Prevention and Control Act lend some support to this argument: WHEREAS, unifonnity between the Laws of Florida and the Laws of the United States is ne- cessary and desirable for effective drug abuse Page 2 of3 Page 2 prevention and control, and WHEREAS, it is desirable that the State of Flor- ida exercise more authority over manufacture and distribution of dangerous drugs, and WHEREAS, the inconsistencies in penalty provi- sions of current law demand amendment; NOW lHEREFORE, .... Ch. 73-331, Laws of Fl. However, under section 166.021(3)(c), Florida Statutes (1981), the legislat- ive body of a municipality may enact legislation concerning any subject except for those areas "expressly preempted" by the constitution or state law. An "express" reference is one which is dis- tinctly stated and not left to inference. Pierce v. Di- vision of Retirement, 410 So.2d 669 (Fla. 2d DCA 1982). There is no suggestion of a constitutional preemption, and neither the language of the legis- lative fmdings of fact nor the terminology of chapter 893, Florida Statutes (1981), expressly preempts the field of drug abuse control. The City of Venice may, therefore, enact ordinances on that subject. [2][3] Edwards next argues that, even if chapter 893, Florida Statutes (1981), does not preempt the area of drug abuse control, the Venice ordinance conflicts with state law. A state statute always pre- vails over a conflicting municipal ordinance. Rinz- ler v. Carson, 262 So,2d 661 (Fla, 1972). City oj Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA 1981). In this case, the state statutes pre- scribe penalties which differ in severity from the penalties established by the ordinance. A local or- dinance does not conflict with a state statute merely because it provides for a less severe penalty. Hil- liard v. City of Gainesville, 213 So.2d 689 (Fla. 1968), appeal dismissed, 393 U.S. 321, 89 S.Ct. 556, 2 I L.Ed.2d 517 (1969). However, an or- dinance penalty cannot exceed that of state law, 5 E. McQuillin, The Law of Municipal Corporations ~ 17.15 (3d ed. 1981). [4] In some respects, the Venice ordinance sets a (Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.comlprint/printstream.aspx?rs=WLW9.10&destination=atp&prft=H...l1/17 /2009 Page 3 of3 Page 3 422 So.2d 84 (Cite as: 422 So.2d 84) greater penalty than that prescribed by the law of Florida. Except in serious cases involving minimum mandatory *86 sentences, state law grants a trial judge the discretion to withhold adjudication and order probation. ~ 948.01, Fla. Stat. (1981). Moreover, where drug charges are brought under sections 893.13(1)(e') or (l)(t), Florida Statutes (1981), the judge is authorized to require a violator to participate in a drug rehabilitation program in lieu of prison or probation. ~ 893.15, Fla.Stat. (1981). For the less serious violations of chapter 893, the judge also retains the discretion to decide whether or not to impose a fme. Yet, the Venice or- dinance eliminates all of these options and requires a minimum mandatory sentence and a minimum fine for each violation. To this extent, the ordinance is invalid because it conflicts with state law. People v. Quayle, 122 Misc. 607, 204 N.Y.S. 641 (Albany County Ct.1924). In view of the severability clause contained therein, the balance of the ordinance can be sustained. We hereby grant certiorari to the extent that we dir- ect the circuit court to remand the case with instruc- tions to delete those portions of Venice City Ordin- ance 888-81 which establish minimum mandatory sentences and fmes not similarly punishable under state law. Otherwise, the petition for certiorari is denied. BOARDMAN, A.C.J., and CAMPBELL, J., con- cur. Fla.App. 2 Dist.,1982. Edwards v. State 422 So.2d 84 END OF DOCUMENT @ 2009 Thomson Reuters. No Claim to Orig, US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.10&destination=atp&prft=H...11/17/2009 West law. 167 So.2d 866 (Cite as: 167 So.2d 866) c Supreme Court of Florida. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, Appellant, v. Mary BOSWELL, Appellee, and A. F. Seward and Mary Seward, Intervening-Ap- pellees. No. 33046. Oct. 7, 1964. Action was brought for declaratory relief with re- spect to Dade County ordinance prohibiting for- tune-telling and similar occupations. The Circuit Court for Dade County, Lucien C. Proby, Jr., J., entered a decree holding the ordinance unconstitu- tional, and the Board of County Commissioners of Dade County appealed. The Supreme Court, Drew, C. 1., held that the ordinance is in conflict with gen- eral law and is therefore invalid in absence of ex- press reservation under home rule amendment. Affinned. Thomas, Thornal and O'Connell, J1., dissented. West Headnotes [lJ Courts 106 oC=216 106 Courts 106Vl Courts of Appellate Jurisdiction 106VI(B) Courts of Particular States 106k2l6 k. Florida. Most Cited Cases Where decision of Circuit Court in proceeding for declaratory relief was that constitutional provision preserving legislative power to enact general laws relating to Dade County and providing that no or- dinance shall conflict with any applicable general law except as expressly authorized by Constitution prohibited enactment of county ordinance prohibit- ing fortune-telling and similar occupations, de- .page 1 01 j Page 1 clslon effectively defined meaning and effect of constitutional proscription so as to give rise to ap- pellate remedy in Supreme Court. F.S.A, ~~ 205.41, 205.411; F.S.A.Const. art. 5, ~ 4; art. 8, ~ 11(1) (b), (5,6). [2] Counties 104 oC=55 104 Counties 10411 Government I 0411(C) County Board 104k55 k. Ordinances and By-Laws. Most Cited Cases Dade County ordinance prohibiting fortune-telling and similar occupations is in conflict with general law and therefore invalid in absence of express re- servation under home rule amem:lrfiefit F,S.A. ~S 205.41,205.411; F.S.A.Const. art. 5, ,~ 4, art, 8, S 11(1) (b), (5, 6). *866 Darrey A. Davis, Miami, for appellant. Pruitt & Pruitt, Miami, for appellee. Harold G. Featherstone and Seaman, Wolfe & Hol- lahan, Coral Gables, for intervening appellees. DREW, Chief Justice. The appellant controverts a decree of the Circuit Court for Dade County, holding County Ordinance No. 63-I,FNI which prohibits fortune-telling and similar occupations, to be 'in contravention and in violation of the provisions of the Amendment to the State Constitution authorizing the creation of the Home Rule Charter for the County of Dade.' FN I. 'Section 2. Certain Occupations Pro- hibited. It shall be unlawful for any person * * * to practice, perfonn, or hold himself out to the public as, a fortune teller, clair- voyant, palmist, astrologer, phrenologist, character reader, spirit medium, absent treatment healer, mental healer, mind read- er, or any occupation of a similar nature. * <<J 2009 Thomson Reuters. No Claim to Orig. US Gov, Works. 167 So,2d 866 (Cite as: 167 So.2d 866) * * 'Section 3. * * * No county or municipal occupational licenses or penn its shall be issued to any person to engage in such crafts, * * * 'Section 4, * * * The' provisions of this or- dinance shall not be construed to apply to regularly established churches chartered under the laws of the State of Florida, or to individuals functioning under the official jurisdiction of such churches, or to regu- larly ordained ministers of churches who are members of the Florida State Spiritual- ist Ministerial Association or whose charters are filed in the Library of Con- gress and on record in the State Capitol in Tallahassee, or to any non-profit organiza- tion operating for scientific purposes only; nor shall this ordinance be construed to ap- ply to newspapers or other publications ac- corded publication mailing privileges by the United States Government.' *867 The applicable portion of the Constitution re- ferred to is Article VIII, Section 11(5) and (6), F.S.A. This provision preserves the legislative power to enact general laws relating to Dade County, and provides that no ordinance shall 'conflict with * * * any such applicable general law except as expressly authorized herein.' The sole ex- press authorization relied on by appellant is the general provision of the constitutional amendment, subsection (1)(b), for power 'to pass ordinances re- lating to the affairs, property and government of Dade County.' [1] The decision of the court, upon complaint and answer in this proceeding for declaratory relief, was that the above constitutional provision against or- dinances which 'conflict with' general laws prohib- its the enactment of an ordinance which outlaws oc- cupations already regulated by F.S. Sections 205.41 and 205.411, F.S.A.FN2 We conclude that the de- cree, by its disposition of the cause and issues be- ri::l.gc; L.. Vi .J Page 2 fore the court effectively defmed the meaning and effect of the constitutional proscription in these cir- cumstances so as to give rise to the appellate rem- edy in this court,FN3 FN2, '205.41. Fortune tellers, clairvoy- ants, etc. Every fortune teller * * * and every person engaged in any occupation of a similar nature shall pay a license tax of one hundred dollars * * *.' '205.411. Same; county permit required; penalty '(1) No license * * * required by ~ 205.41, shall be issued to any person unless such person holds a permit therefor given by the board of county commissioners of the county wherein such license is sought. No permit shall be issued until after the fol- lowing conditions are fulfilled * * * [residence, character affidavits, investiga- tion]. '(d) The Board of county commissioners shall consider the application and the re- port of the clerk and order the pennit either issued or denied, * * *' ' FN3. Article V, Section 4. Florida Consti- tution. The review by appeal in Dade County, et aI., v. Mercury Radio Service, Inc., Fla,1961, 134 So,2d 791, appears to be ample authority on the jurisdictional issue, In that case, as in this, the conclusion of the trial court (that the ordinance was in- valid) rested simply upon a reference to that provision of the home rule amendment which preserves the superiority of state statutes. This and other decisions have to that extent qualified the earlier requirement in Annstrong v. City of Tampa, Fla.1958, 106 SO.2d 407, that the decree undertake to explain or define the constitutional lan- ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 167 So.2d 866 (Cite as: 167 So.2d 866) guage. The general statutes, supra, not only impose a li- cense tax on the occupations in question, but also prescribe the conditions which must be fulfilled be- fore a penn it is issued. The authority of the county officers in the administration of the act is to 'consider the application and the report of the clerk and order that pennit either issued or denied. * * * , We are not persuaded by appellant's contention that this vests in the Board of County Commissioners absolute discretion to deny all permits with or without the ordinance here involved, [2] The applicable general law, supra, declares that an order denying or issuing such pennit shall be based on a consideration of the conditions spe- cified, and does not in terms permit contrary local provisions,FN4 The decree of the court below cor- rectly decides that the controverted ordinance, pro- hibiting the issuance of any such penn it without re- gard to the statutory conditions, was in conflict with the general law and therefore invalid in the ab- sence of express reservation under the home rule amendment. No other issue as to the scope *868 or validity of the ordinance is presented or detennined in this proceeding. FN4. For annotation of Florida cases ap- plying the comparable rule of statutory preemption controlling local regulation by municipal corporations see 23 Fla.Jur. 118 and cumulative supplement. Related de- cisions cited by appellant are Boven v. City of St. Petersburg, Fla.1954, 73 So.2d 232; Mitchell v. City of Binningham, 222 Ala. 389, 133 So. 13; Cannon v. City of Dallas (Tex.Civ.App.1953) 263 S.W.2d 288. Affinned. ROBERTS and CALDWELL, JJ., and SMITH, Cir- cuit Judge, concur. THOMAS, THORNAL and O'CONNELL, JJ., dis- sent. .page j 01 j Page 3 Fla, 1964 Board of County Com'rs of Dade County v. Boswell 167 So.2d 866 END OF DOCUMENT (Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, 1..L..Lu. 'C_ _1_'" " West law. 3 So.3d 309,33 Fla. L. Weekly SlO02 (Cite as: 3 So.3d 309) H Supreme Court of Florida. PHANTOM OF BREVARD, INe., Petitioner, v. BREVARD COUNTY, Florida, Respondent. Brevard County, Florida, Petitioner, v. Phantom of Brevard, Inc., Respondent. Nos. SC07-2200, SC07-2201. Dec. 23, 2008. Rehearing Denied Feb. 17,2009. Background: fireworks retailer sought a judgment declaring county ordinance regulating the supply, sale, and use of fireworks unconstitutional. The Circuit Court, Brevard County, T. Mitchell Barlow, 1., entered summary judgment in favor of county. Retailer appealed, The District Court of Appeal, 966 So.2d 423, affinned in part, reversed in part, and remanded. Retailer and county filed applica- tions for review. Holding: The Supreme Court, Canady, 1., held that "evidence of financial responsibility" provision of county fireworks ordinance did not conflict with statute governing the sale of fireworks. Decision of District Court of Appeal quashed. West Headnotes [1] Counties 104 oC=24 104 Counties 10411 Government 10411(A) Organization and Powers in Gener- al 104k24 k. Legislative Control of Acts, Rights, and Liabilities. Most Cited Cases Explosives 164 €:=>3 164 Explosives Page 1 of 8 Page 1 l64k3 k. Regulations of Manufacture, Storage, and Sale. Most Cited Cases "Evidence of financial responsibility" provision of county fireworks ordinance, which required sellers of fireworks to obtain and maintain a $1,000,000 single limit liability insurance policy, did not con- flict with statute governing the sale of frreworks, which did not include an insurance coverage stand- ard or requirement; while ordinance imposed an ad- ditional requirement on businesses that sell fire- works in county beyond the requirements imposed by statute, additional requirement did not directly conflict with any requirement, prohibition, or ex- emption in statute, including section of statute providing that statute is to be applied uniformly throughout the state. West's F.S,A. ~ 791.001 et seq. [2] Counties 104 €:=>21.5 104 Counties 10411 Government 10411(A) Organization and Powers in Gener- al 104k21,5 k. Governmental Powers in General. Most Cited Cases Pursuant to State Constitution, chartered counties have broad powers of self-government. West's F.S.A. Const. Art, 8, ~ l(g), [3] Counties 104 €:=>24 104 Counties 10411 Government 10411(A) Organization and Powers in Gener- al 104k24 k. Legislative Control of Acts, Rights, and Liabilities. Most Cited Cases There are two ways that a county ordinance can be inconsistent with state law and therefore unconsti- tutional: frrst, a county can not legislate in a field if the subject area has been preempted to the State; second, in a field where both the State and local government can legislate concurrently, a county can <Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com!printlprintstream.asPx?sv=Split&orft= HTMT . F&-i fm= l\T nt<;!",t RT 1 f\ /1 t: 1"11\1\1\ 3 So.3d 309, 33 Fla. L. Weekly S 1 002 (Cite as: 3 So.3d 309) not enact an ordinance that directly conflicts with a state statute. West's F,S.A. Const. Art. 8, ~ leg). (4] Municipal Corporations 268 oC=592(1) 268 Municipal Corporations 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k592 Concurrent and Conflicting Ex- ercise of Power by State and Municipality 268k592( 1) k. In General. Most Cited Cases Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature. [5] Municipal Corporations 268 oC=l11(2) 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268kll1 Validity in General 268klll(2) k. Conformity to Constitu- tional and Statutory Provisions in General. Most Cited Cases Local ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute. (6] Municipal Corporations 268 oC=111(2) 268 Municipal Corporations 268IV Proceedings of Councilor Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268k 111 Validity in General 268klll(2) k. Confonnity to Constitu- tional and Statutory Provisions in General. Most Cited Cases There is conflict between a local ordinance and a state statute when the local ordinance can not coex- page 1. ot ~ Page 2 ist with the state statute. (7] Municipal Corporations 268 oC=l11(2) 268 Municipal Corporations 268IV Proceedings of Council or Other Govern- ing Body 268IV(B) Ordinances and By-Laws in Gener- al 268klll Validity in General 268kl11(2) k. Conformity to Constitu- tional and Statutory Provisions in General. Most Cited Cases The test for conflict between a local ordinance and a state statute is whether in order to comply with one provision, a violation of the other is required, (8] Explosives 164 oC=3 164 Explosives 164k3 k. Regulations of Manufacture, Storage, and Sale. Most Cited Cases Section of statute governing the sale of fIreworks which provides that a county must require at least a $500 bond from licensees is intended to cover the persons who receive local permits for outdoor dis- plays. West's F.S.A. ~ 791.03. Mark D, Shuman of GrayRobinson, P,A., Mel- bourne, FL, for PetitionerlRespondent. Scott L. Knox, County Attorney, Viera, FL, for Re- spondent/Petitioner. CANADY, J. Phantom of Brevard, Inc. and Brevard County seek review of the decision of the Fifth District Court of Appeal in Phantom of Brevard, Inc. v. Brevard County, 966 So.2d 423 (Fla. 5th DCA 2007), on the ground that it expressly and directly conflicts with the decision of the Second District Court of Appeal in Phantom of Clearwater, Inc. v. Pinel/as County, 894 So.2d 1011 (Fla. 2d DCA 2005). The district courts disagree about whether substantially similar county ordinance provisions related to the regula- tion of fireworks conflict with chapter 791, Florida @2009 Thomson Reuters. No Claim to Orig, US Gov. Works. http://web2.westlaw.com/print/printstream.asox?sv=Sol it&nrft= HTMT .F.&- i fm=N ot~pt J& 1 ()/ll\/")()()O 3 So.3d 309, 33 Fla. L. Weekly S 1002 (Cite as: 3 So.3d 309) Statutes. We have jurisdiction. See art. V, ~ 3(b)(3), Fla. Const. For the reasons stated below, we quash the Fifth District's decision in Phantom of Brevard to the extent it is inconsistent with this opinion, and we approve the Second District's decision in Phantom of Clearwater on the conflict issue, FACTUAL AND PROCEDURAL BACK- GROUND Phantom of Brevard, Inc. (Phantom) sought a judg- ment declaring Brevard County, Florida, Ordinance No. 05-60 (December 6, 2005), as amended by Brevard County, Florida, Ordinance No. 06-18 (April II, 2006), unconstitutional. Phantom oj Brevard, 966 So.2d at 425. The circuit court entered a final summary judgment in favor of Brevard County, concluding that it was required to follow the Second District's decision in Phantom oj Clearwater. The Second District in Phantom oj Clearwater had upheld a similar Pinellas County fireworks ordinance with the exception of one sen- tence that Brevard County had since removed from its fireworks ordinance. Phantom appealed the cir- cuit court's judgment. On appeal, the Fifth District affirmed in part and re- versed in part the circuit court's judgment. Phantom of Brevard, 966 So.2d at 428. First, the Fifth Dis- trict held that chapter 791, Florida Statutes (2006), does not expressly preempt the regulation of fire- works. fd. at 427. Second, the Fifth District con- cluded that the legislative history of chapter 791 does not support implied preemption. fd. However, the Fifth District reversed in part and re- manded with instructions to sever certain provi- sions of the ordinance that it found in conflict with chapter 791. fd. at 428. Among the provisions that the Fifth District found to be in direct conflict is section 10, entitled "Evidence of financial respons- ibility," with which businesses must comply in or- der to receive a pennit for selling fireworks and sparklers in Brevard County. See id. at 428-29. Sec- tion 10 provides: Page:; ot ~ Page 3 In furtherance of the provisions of sections 8 and 9, all sellers of fIreworks must keep in force an insurance policy showing general, comprehens- ive, liability and property damage insurance cov- erage on an occurrence basis with minimum lim- its in the policy of not less than $1,000,000.00 combined single limit coverage for each loss that may result from the activities of the sellers. Sellers must maintain Workers' Compensation coverage as required pursuant to F.S. Ch. 440. A failure to maintain this required coverage after the procurement of a penn it shall be a violation of this ordinance and grounds for suspension of their pennit from the authority and the sale of the pennitted goods shall cease until such time as the required insurance is obtained. fd. at 428 (quoting Ordinance No. 05-60, ~ 10), The Fifth District explained its reasoning and its dis- agreement with the Second District as follows: Upon considering substantially similar language in the Pinellas County ordinance, the Phantom oj Clearwater court determined that a county may, as part of its pennitting process, demand proof of the seller's ability to respond in damages. 894 So.2d at 1023, We disagree. Brevard County's financial responsibility ordinance is in direct con- flict with section 791.001, Florida Statutes, which provides that chapter 791 "shall be applied uni- fonnly throughout the state." Because chapter 791 does not contain any fmancial responsibility standard or requirement, retailers and other sup- ply-side entities are subject to potentially dispar- ate obligations throughout the state. Although the legislature has provided counties with consider- able discretion to determine the amount of a bond required of a fireworks display licensee under section 791.03, there is no reason to believe that the legislature would have countenanced a system in which a seller of fireworks or sparklers must maintain a particular amount of liability insur- ance simply because one of the counties in which it does business requires such coverage. fd. at 428-29. ~ 2009 Thomson Reuters, No Claim to Orig. US Gov, Works, http://web2.westlaw.com/print/printstream.asox?sv=Sol it&nrft= HTMT ,FA7ifin= N nt~pt /& 1011 ,/")f\f\O 3 So.3d 309, 33 Fla. L. Weekly S 1 002 (Cite as: 3 So.3d 309) In contrast to the Fifth District, the Second District in Phantom of Clearwater, 894 So.2d at 1023, had rejected the contention that the pennitting require- ment of compliance with the Pinellas County fire- works ordinance's "Evidence of financial responsib- ility" provision conflicts with chapter 791. See id. FNI The Second District reasoned: FN1. The Pinellas County provision provides: In furtherance of the provisions of Sec 62-88, all sellers of fireworks, must keep in force an insurance policy showing general, comprehensive, liability and property damage insurance coverage on an occurrence basis with minimum limits in the policy of not less than one million dollars ($1,000,000.00) combined single limit coverage for each loss that may result from the activities of the sellers. Sellers must maintain Workers' Com- pensation coverage as required pursuant to Chapter 440, Florida Statutes. A fail- ure to maintain this required coverage after the procurement of a penn it shall be a violation of this Division and grounds for suspension of their pennit from the Authority and the sale of the pennitted goods as set forth in Sec 62-82 shall cease until such time as the re- quired insurance is obtained. Phantom of Clearwater, 894 So.2d at 1028-29 (quoting Pine lias County, Fla., Ordinance No. 03-48 (June 24, 2003)). A.lthough the ordinance does establish a pennitting process for all businesses involving fireworks and that process imposes additional requirements on businesses wanting to avail themselves of the benefits of doing business in Pinellas County, this pennitting process does not directly conflict with the provisions of chapter 791. ... A person can comply with the requirements of Page 4 o1'S Page 4 the ordinance without violating chapter 791, and can comply with the requirements of chapter 791 without violating the ordinance. rd. Both Phantom and Brevard County sought review on the ground that the Fifth District's decision in Phantom of Brevard is in express and direct con- flict with the Second District's decision in Phantom of Clearwater regarding whether these substantially similar "Evidence of fmancial responsibility" pro- visions conflict with chapter 791.FN2 FN2, While Phantom's jurisdictional brief argued that this Court has jurisdiction be- cause the district courts are in conflict re- garding whether the "Evidence of fmancial responsibility" provisions conflicts with chapter 791, Phantom's merits briefs did not specifically address this issue, And, during oral argument, Phantom conceded this conflict issue. However, we do not ad- dress Phantom's preemption arguments be- cause the Fifth and Second Districts do not conflict on the issue of preemption. See Savona v. Prudential Ins. Co. of Am., 648 So.2d 705, 707 (Fla. 1995). DISCUSSION We begin our analysis by summarizing chapter 791, Florida Statutes (2006), and Brevard County Ordin- ance 05-06, as amended by Brevard. County Ordin- ance 06-18. Chapter 791, entitled "Sale of Fireworks," is a rel- atively short chapter, It begins with section 791.001, which provides: This chapter shall be applied unifonnly throughout the state. Enforcement of this chapter shall re- main with local law enforcement departments and officials charged with the enforcement of the laws of the state. ~ 2009 Thomson Reuters. No Claim to Orig. US Gov, Works. http://web2 . westlaw ,cornJprint/printstream,asox?sv=Solit&nrft= HTMT .F&ifm= N nt~pt ~ 1 OJ1 ,/'1f'lf'lO 3 So.3d 309,33 Fla. L. Weekly S1002 (Cite as: 3 So.3d 309) Then, the chapter defines various tenns, including fireworks, sparklers, manufacturer, retailer, and wholesaler. In particular, "fireworks" is defmed as including "any combustible or explosive composi- tion or substance or combination of substances or, except as hereinafter provided, any article prepared for the purpose of producing a visible or audible ef- fect by combustion, explosion, deflagration, or det- onation." 791.0l(4)(a), Fla. Stat. However, the tenn fireworks does not include snakes, party poppers, auto burglar alanns, and other expressly delineated items. ~ 791.0 I (4)( c), Fla. Stat. To be excluded from the tenn "fireworks," sparklers must be tested and approved by the Division of the State Fire Mar- shal (Division) prior to retail sale. ~ 791.01 (4)(b), Fla. Stat. Sparklers also must be stored in the man- ner described by section 791.015, And a retailer (defined by section 791.01(6) as someone engaged in selling sparklers) may not sell sparklers or other products authorized for sale by chapter 791 "unless the product was obtained from a manufacturer, dis- tributor, or wholesaler registered with the division," ~ 791.02(2), Fla. Stat. Significantly, section 791. 02(1) prohibits the use and sale of items that fall within the defmition of fireworks. However, there are several exceptions to this general prohibition. First, there is an exception for the use and sale of fireworks for certain public displays of fireworks. See ~ 791.02(1), Fla. Stat.; ~ 791.04, Fla. Stat. The governing bodies of counties and municipalities can adopt rules for granting per- mits for the public displays of fireworks by fair as- sociations, amusement parks, or other organiza- tions. ~ 791.02(1), Fla. Stat. Boards of county com- missioners must require bonds from licensees in an amount not less than $500. ~ 791.03, Fla. Stat. Fur- ther, outdoor displays are subject to the safety standards of "the National Fire Protection Associ- ation (NFPA) 1123, Code for Fireworks Display, 1995 Edition." ~ 791.012, Fla. Stat. But "[a]ny state, county, or municipal law, rule, or ordinance may provide for more stringent regulations for the outdoor display of fireworks." Id. And the Code for Fireworks Display does not govern fireworks dis- page:> 01 ~ Page 5 plays on private, residential property. Id. In addition to exempting the use and sale of fire- works for certain public displays, chapter 791 ex- empts the wholesale of fireworks if the sales are de- livered to out-of-state entities or to other manufac- turers, distributors, or wholesalers. ~ 791.04, Fla. Stat. Moreover, chapter 791 exempts the use of fireworks for signal purposes by railroad and trans- portation agencies, for quarrying purposes, for blasting or industrial purposes, for show or theatre purposes (blank cartridges), "or for signal or cere- monial purposes in athletics or sports, or for use by military organizations." Id. Chapter 791 also ex- empts the sale and use of fireworks for "frightening birds from agricultural works and fish hatcheries." ~ 791.07, Fla. Stat. This last use "shall be governed entirely by the rules prescribed by the Department of Agriculture and Consumer Services." Id. Brevard County's fireworks ordinance begins with a list of definitions, including one that specifies that "[f]ireworks, sparklers, retailer, wholesaler, distrib- utor, and manufacturer shall have the same meaning as specified in F.S. Section 791.01, as it may, from time to time, be amended." Ordinance No. 05-60, amended by Ordinance No. 06-18, ~ l(d). Addition- ally, the ordinance explains that it is "enacted pur- suant to the Home Rule Charter of Brevard County, Florida and F.S. Chapter 791." Id. ~ 2, Section 5 of the fireworks ordinance requires the Brevard County Fire Chief to "develop. an affidavit which all sellers of fireworks within the county shall use to detennine the entitlement of any pur- chaser at retail or wholesale to buy fireworks." Id. ~ 5(b). A purchaser must provide the seller with doc- umentary evidence that the purchaser is entitled to purchase fireworks. Id. ~ 5(c), The seller is required to maintain copies of the records required by the or- dinance for a period of four years from the sale date. Id. ~ 5U). And vendors must provide pur- chasers with receipts. Id. ~ 6. Section 7, which the Fifth District remanded with instructions for the circuit court to detennine <<::> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.asnx?sv=Sn J it&nrft= HTMT ,FRr i fm=1\T nt~pt 1& 1 (\/1 "/')(\(\0 3 So,3d 309, 33 Fla. L, Weekly S1002 (Cite as: 3 So.3d 309) whether it should be severed, requires devices to have labels in English that describe the weight of the combustible substance, "the name of the chem- ical composition and a brief statement describing its action when ignited." Section 8, which the Fifth District remanded for severance, designates spark- lers and fireworks to be ultrahazardous and danger- ous products, "subjecting the vendors, distributors and manufacturers to strict liability for any injury sustained by a purchaser or user." Section 9(b) provides that any seller of fireworks within Brevard County must apply for and secure a penn it from the Brevard County Fire Chief. Among other requirements, an applicant must demonstrate evidence of financial responsibility pursuant to sec- tion 10, which is quoted above and which the Fifth District remanded for severance. Id. ~ 9(e), Section 12 includes specific requirements for the is- suance of penn its for public displays of fireworks. For example, one must submit an application to the appropriate fire department at least thirty days prior to the event and must include a diagram of the grounds where the fireworks are to be discharged. Id. ~ l2(a)(1). Section 13, which the Fifth District remanded for severance, provides that the use, explosion, or stor- age of fireworks is prohibited in the county unless: (a) a county penn it for public display is obtained; (b) the use is by a railroad or transportation agency for signal purposes or the use is for quarrying, blasting, or industrial purposes; or (c) the use is for a bona fide agricultural purpose. Section 14, entitled "Penalties and enforcement," explains that law enforcement has the authority to order the cessation of the sale of fireworks if a seller is selling fireworks without the required per- mits until the missing permits are obtained. This section also provides for a period of suspension of a penn it for repeat offenders of the ordinance or chapter 791. Finally, Brevard County's fireworks ordinance includes a severability clause. Id. ~ 15. rage () or lS Page 6 Brevard County's Mandatory Insurance Provi- sion Does Not Conflict with Chapter 791 [1] Brevard County contends that section 10 of its fireworks ordinance, entitled "Evidence of fmancial responsibility," does not conflict with chapter 791. We agree. [2][3][4][5] Pursuant to our Constitution, chartered counties have broad powers of self-government. See art. VIII, ~ 1 (g), Fla. Const. Indeed, under art- icle VIII, section 1 (g) of the Florida Constitution, chartered counties have the broad authority to "enact county ordinances not inconsistent with gen- eral law," See also David G. Tucker, A Primer on Counties and Municipalities, Part I, Fla. BJ., Mar. 2007, at 49, However, there are two ways that a county ordinance can be inconsistent with state law \:':"\ and therefore unconstitutional. First, a county can- \, / not legislate in a field if the subject area has been preempted to the State. See City of Hollywood v. Mulligan, 934 So.2d 1238, 1243 (Fla.2006). " Pree- mption essentially takes a topic or a field in which local government might otherwise establish appro- priate local laws and reserves that topic for regula- tion exclusively by the legislature." Id. (quoting Phantom of Clearwater, 894 So.2d at 1018). tJ) Second, in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute, See Tallahassee Mem'l Reg'l Med. Ctr., , Inc. v. Tallahassee Med. Ctr., Inc., 681 So.2d 826, 831 (Fla. 1st DCA 1996). Local "ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute." Thomas v. State, 614 So.2d 468, 470 (Fla.1993); Hillsborough County v. Fla. Rest. Ass'n, 603 So.2d 587, 591 (Fla. 2d DCA 1992) ("If [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void,"); see also Rinzler v. Carson, 262 So.2d 661, 668 (Fla.1972) ("A municipality cannot forbid what the legislature has expressly licensed, authorized or re- quired, nor may it authorize what the legislature has expressly forbidden,"). <<:> 2009 Thomson Reuters. No Claim to Orig. US Gov. Works, http://web2.westlaw.comlorintlorintstream . asnx ?sv=Sn 1 it &nrft= HTMT ,FRr i fm= N nt~pt Jb 1 ()/l ~ /'")()()O {:: -~Pt>,.. I::> ~ ~ xr A \1.' ~" '~ \ 3 So.3d 309, 33 Fla. L. Weekly S1002 (Cite as: 3 So.3d 309) [6] [7] There is conflict between a local ordinance and a state statute when the local ordinance cannot coexist with the state statute. See City of Holly- wood, 934 So.2d at 1246; see also State ex rei. Dade County v. Brautigam, 224 So.2d 688, 692 (Fla. 1969) (explaining that "inconsistent" as used in article VIII, section 6(f) of the Florida Constitu- tion "means contradictory in the sense of legislative provisions which cannot coexist"). Stated other- wise, "[t]he test for conflict is whether 'in order to comply with one provision, a violation of the other is required.' " Browning v. Sarasota Alliance for Fair Elections, Inc., 968 So.2d 637, 649 (Fla, 2d DCA 2007) (quoting Phantom of Clearwater, 894 So.2d at 1020), review granted, No. SC07-2074 (Fla. Nov. 29, 2007). [8] In this case, nothing in the "Evidence of finan- cial responsibility" provision conflicts with chapter 791 because chapter 791 does not in any way ad- dress the subject matter addressed by the "Evidence of financial responsibility" provision, namely the requirement that sellers of fireworks obtain liability insurance. Section 791.03 only provides that a county must require at least a $500 bond from li- censees. Although "licensee" is not defmed in chapter 791, it appears that section 791.03 "is inten- ded to cover the persons who receive local penn its for outdoor displays." Phantom of Clearwater, 894 So.2d at 1016 n. 3. Therefore, when enacting sec- tion 10 of its fireworks ordinance, the county simply chose to legislate in an area where the Le- gislature chose to remain silent. Specifically, when regulating businesses that sell fireworks within its borders, Brevard County chose to require that sellers of fireworks obtain and main- tain a $1,000,000 single limit liability insurance policy. While this imposes an additional require- ment on businesses that sell fireworks in Brevard County beyond the requirements imposed by chapter 791, this additional requirement does not directly conflict with any requirement, prohibition, or exemption in chapter 791. Businesses that sell fireworks in Brevard County can comply with the page '/ ot ~ Page 7 county's additional insurance requirement without violating any provision of chapter 791. Thus, the "Evidence of fmancial responsibility" provision can coexist with chapter 791, There is no direct con- flict. Cf Dade County v. Acme Specialty Corp., 292 So.2d 378 (Fla. 3d DCA 1974) (holding that portion of county ordinance that banned the sales of spark- lers was unconstitutional because it directly conflic- ted with section 791.0 I, Fla. Stat., which specific- ally approved the sale of sparkers). The Fifth District concluded that the "Evidence of fmancial responsibility" provision conflicts with section 791.001, which provides that chapter 791 is to be "applied uniformly throughout the state." More specifically, the Fifth District found that Brevard County's "Evidence of fmancial responsib- ility" provision will subject fireworks businesses to varying insurance coverage requirements throughout the State. However, focusing on poten- tial differences caused by varying local require- ments confuses the issue. Because chapter 791 does not include an insurance coverage standard or re- quirement, chapter 791 is not being applied dispar- ately. In other words, a state statute is not being ap- plied in a non-uniform manner when a locality en- acts a regulation on a particular matter that is not addressed in the statute, The statute is being applied unifonnly. It is the local ordinance that is creating any variance between counties. Brevard County's "Evidence of fmancial responsib- ility" provision could only be hindering a unifonn application of chapter 791 if chapter 791 included a standard insurance standard or requirement. But, as stated earlier, chapter 791 includes no such stand- ard or requirement. Thus, there is no conflict. CONCLUSION Because chapter 791 is silent regarding insurance requirements for businesses that sell fireworks, Brevard County's "Evidence of fmancial responsib- ility" provision does not conflict with chapter 791. Accordingly, we quash the Fifth District's decision <<;) 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. htto:/ /web2. westlaw ,comlnrintlnrintstream. ~ ~nx?~v=~ n 1 it ~nrft= HTMT P A'rifn..= 1\T "tl;;!..t R, 1 (\/1';: /'")(\(\0 3 SO.3d 309, 33 Fla. L. Weekly S 1002 (Cite as: 3 So.3d 309) in Phantom of Brevard to the extent it is inconsist- ent with this opinion, and we approve the Second District's decision in Phantom of Clearwater. It is so ordered. QUINCE, C.J., and ANSTEAD, PARIENTE, LEWIS, and POLSTON, JJ., concur. WELLS, J., recused. Fla.,2008. Phantom of Brevard, Inc. v. Brevard County 3 So.3d 309, 33 Fla. L. Weekly Sl002 END OF DOCUMENT <<:J 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/orint/orintstream.aSDx?sv=Sn 1 it&nrft= HTMT ,F.&i fm=N ()t~P.t /& yage lS or lS Page 8 1011 "nOOQ Advisory Legal Opinion - Traffic citations. use of WllUlrmed cameras " http://wW\...l~lloridalega1.com/ago . nsf/printview IE 13 2..1.0882 C219 , . Florida Attorney General Advisory Legal Opinion Number: AGO 97-06 Date: January 24, 1997 Subject: Traffic citations, use of unmanned cameras The Honorable Ken L. Foster, Chairman Palm Beach Board of County C~ssioners Post Office Box 1989 West Palm Beach, Florida 33402-1989 RE: TRAFFIC CONTROL--LAW ENFORCEMENT--MOTOR VEHICLES--COUNTIES--county not authorized to issue citations for running red lights based upon photographs or film from unmanned camera. s. 316.075, Fla. stat. Dear Chairman Foster: On behalf of the Palm Beach County Commission, you ask the following questions: 1. May a coun,ty enact an ordinance authorizing the use of unmanned cameras at traffic intersections for the purpose of issuing citations for violations of section 316.075, Florida Statutes? 2. If so, may the county serve the traffic citation by mail? In sum: 1. The use of unmanned cameras to record violations of section 316.075, Florida Statutes, is not precluded by state law, and represents an innovative approach to detect and deter the dangerous conditions created by drivers who disobey traffic signals. The statutes governing the enforcement and citation for violations of section 316.075, Florida Statutes, however, have not been amended to allow the photographic record from unmanned cameras monitoring intersections to be used as the sole basis for issuing citations. 2. While the response to question one makes a response to this question unnecessary, it would appear that the service of traffic citations by mail must be authorized by statute. Question One Chapter 316, Florida Statutes, constitutes the Florida Unifor.m Traffic 10f5 ...,,/' 1.At.A""" ... n. ^^ __" . Advisory Legal Opinion - Traffic citations, use ofl.lIllmnred carreras .1 1ttp://www.rr~vfloridalegal.comlago.nsf/printview fEI324D882C219... Control Law and was enacted to make uniform traffic laws applicable throughout the state and its counties. [1] Section 316.075, Florida Statutes, prescribes uniform meanings to be applied to the red, yellow and green lights that may be used for controlling vehicles and pedestrians. Pertinent to your inquiry, a steady red light indicates that vehicular traffic facing the signal ~shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shall remain standing until a green indication is shown. . . ."[2] Counties have been given original jurisdiction to control traffic over all streets and highways located within their boundaries, except all state roads and roads under the jurisdiction of municipalities. [3] Section 316.002, Florida Statutes, however, precludes counties from passing ordinances in conflict with the provisions of Chapter 316. The traffic control law enumerates several areas that local authorities are authorized to address, including, "[r]egulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties . . ."[4] (e.s.) Use of an unmanned camera to detect vehicles that do not remain stopped and standing at a steady red light as required by section 316.075(3) (a), Florida Statutes, would appear to fall within this specifically granted authority. It remains questionable, however, whether an 'unmanned "electronic traffic infraction detector" may independently be used as the basis for issuing citations for violations of these traffic laws. Section 316.640(2), Florida Statutes, vests the sheriff's office of each county with the authority to enforce all of the traffic laws of this state on all streets and highways throughout the county where the public has a right to travel. The sheriff's office may employ traffic infraction enforcement officers with specified training requirements who may issue citations when the officer "observes the commission of a traffic infraction or, in the case of a parking infraction, observes an illegally parked vehicle. . . ."[5] (e.s.) Section 316.645, Florida Statutes, states: "A police officer who makes an investigation at the scene of a traffic accident may arrest any driver of a vehicle involved in the accident when, based upon personal investigation, the officer has reasonable and probabl.e grounds to believe that the person has committed any offense under the provisions of this chapter or chapter 322 in connection with the accident." (e.s.) Thus, in order for citations for violations of traffic control laws to be issued, the statutes appear to require that an officer enforcing the traffic law observe or have personal knowledge of the particular infraction that serves as the basis for issuing the citation. 20f5 ., II" ''''''^^^ ... ^ ........ T'<t.... . Advisory Legal Opinion - Traffic citatioIl'>, use of 1.IlIIll:lIlred cameras http://www.~oridalega1.com/ago.nsf/priII1view fE 1324D882C219", .. A similar situation arises when law enforcement officers use electronic speed measuring devices to detect motor vehicles exceeding the speed limit. Section 316.1906(2), Florida Statutes, makes evidence of the speed of a vehicle measured by any speed-measuring device inadmissible in any proceeding related to an alleged violation of speed limit laws unless the officer, among other specific requirements, "[h]as made an independent visual determination that the vehicle is operating in excess of the applicable speed limit." During the 1996 legislative session, Senate Bill 94 was introduced to provide for up to ten traffic control signal photo-monitoring device demonstration projects to be approved by the Department of Highway Safety and Motor Vehicles (DHSMV) in conjunction with the Department of Transportation (DOT). [6] A traffic control signal photo-monitoring device involves the use of cameras to capture the image of motor vehicles at the time they fail to stop at a steady red traffic light. [7] Under the proposed law, DHSMV and DOT were to establish requirements for the photo-monitoring devices and such devices would be required to be tested routinely according to procedures established by DHSMV and DOT. [8] Senate Bill 94, which did not pass, provided specific notice requirements to inform the public of the project, limited the consequences for initial violations (providing for only warning notices during the initiation of the project), and prescribed a civil penalty with a $52 fine and no other consequences when a citation for violation was ultimately issued. [9] Moreover, the bill stated that a uniform traffic citation could not be used as the citation for a violation of the newly enacted law and that the normal procedures for enforcing traffic citations would not apply to enforcement actions undertaken pursuant to the law. [10] The careful drafting of these safeguards in Senate Bill 94 supports the conclusion that legislative authorization would be required for using photo-monitoring devices as a means to enforce traffic law violations. [11] Regrettably, these advancements in technology have not been adequately addressed by the Legislature so that law enforcement may more efficiently and thoroughly target those who create dangerous conditions by violating the traffic laws of this state. Accordingly, it is my opinion that while nothing precludes the use of unmanned cameras to record violations of section 316.075, Florida Statutes, a photographic record of a vehicle violating traffic control laws may not be used as the basis for issuing a citation for such violations. Rather, independent observation or knowledge of the infraction by the officer issuing the citation is required. Question Two In light of the conclusion in question one, it ~s not necessary to 30f5 '7!(;'!'lflfl(} 1(\.(\/\ n~. Advisory Legal Opinion - Traffic citations, use of ummnned caIreras 1ttp://www.~iloridalegal.comlago.nsf/printview /E1324D882C219.., respond to this question as it relates to the mailing of a citation for violation of section 316.075, Florida Statutes. A general discussion of how citations may be served, however, may provide some assistance under other circumstances. Violations of Chapter 316, Florida Statutes, with the exception of criminal offenses enumerated therein, are noncriminal infractions for which individuals are cited. [12] Section 318.14(2), Florida Statutes, states: "Except as provided in s. 316.1001(2), any person cited for an infraction under this section must sign and accept a citation indicating a promise to appear. The officer may indicate on the traffic citation the time and location of the scheduled hearing and must indicate the applicable civil penalty established in s. 318.18."[13] As an exception to this general requirement that a person sign and accept a citation, section 316.1001(2), Florida Statutes, allows a citation for failure to pay a prescribed toll to be issued by certified mail, return receipt requested, to the address of the registered owner of the motor vehicle involved in the violation. [14] A review of Chapter 316, Florida Statutes, has not revealed any analogous provision for the mailing of citations for violation of section 316.075, Florida Statutes. Accordingly, it is my opinion that service of traffic citations for violations of Chapter 316, Florida Statutes, may be made by mail only when authorized by statute. Sincerely, Robert A. Butterworth Attorney General RAE/tIs --------------------------------------------------------------- [1] See, s. 316.002, Fla. Stat. (1995). [2] Section 316.075(3), Fla. Stat. (1995), contains specific exceptions for turning right on red after stopping and left on red from a one-way street intersecting a one-way street with traffic moving to the left. [3] Section 316.006 (3) (a), Fla. Stat. (1995). [4] Section 316.008(1) (w), Fla. Stat. (1995). 40f5 ~'''''''''''r\^''''' .. A. ^'" ........ ~ Advisory Legal Opinion - Traffic citations, use ofunmanred canrras http://W\...w.n:~v:f1oridalegal.comlago.nsf/printview IE I 324D882C219,.. [5 ] Section 316.640 (5) (a) , Fla. Stat. [6] See, s. 1, CS for SB 94, 1996 Legislative Session. [7] See, s. 1 (1) , CS for SB 94, 1996 Legislative Session. [8] See, s. 1 (3) , CS for SB 94, 1996 Legislative Session. [9] See, s. 1(4), CS for SB 94, 1996 Legislative Session. [10] See, s. 1 (5) , CS for SB 94, 1996 Legislative Session. [11] Cf., s. 316.1001(2) (b), Fla. Stat. (1995), authorizing the issuance of a citation by certified mail, return receipt requested, to the address of the registered owner of a vehicle that is involved in a violation of the noncriminal infraction of failing to pay a prescribed toll. This office has been advised that the City of Fort Meade, Florida, is participating in a federally funded red light camera detection demonstration program in which motorists who are recorded running a red light in violation of s. 316.075, Fla. Stat., are mailed a warning, but no citations are issued. Chief George Ferris of the Fort Meade Police Department has indicated that, at times during the demonstration project, officers were placed at the intersections where cameras were operating, and citations were issued to motorists who ran the light. [12] See, s. 318.14(1), Fla. Stat. (1995). [13] Section 318.14(3), Fla. stat. (1995), makes it a misdemeanor of the second degree for a person to willfully refuse to accept and sign a surmnons. [14] Section 316.1001(2) (b), Fla. Stat. (1995), requires that the citation be mailed within 14 days after the date of the violation and the registered owner of the vehicle must be advised of the option to pay a $30 fine to the clerk of the court, in which case adjudication will be withheld and no points may be assessed against the owner's driving record. 50f5 ""',r ,................. .. ~ __, _ Page 1 ot4 We'silaw. Fla. AGO 2005-41,2005 WL 1650328 (Fla.A.G.) Page 1 Fla. AGO 2005-41, 2005 WL 1650328 (Fla.A.G.) Office of the Attorney General State of Florida AGO 2005-41 July 12,2005 RE: MUNICIPALITIES - UNIFORM TRAFFIC CONTROL LAW - ORDINANCES - CAMERAS - use of un- manned cameras to monitor traffic violations. Ch. ] 66, Fla. Stat., and s. 316.075, Fla. Stat. Mr. Samuel S. Goren City of Pembroke Pines Attorney Dear Mr. Goren: On behalf of the Pembroke Pines City Commission you have asked for my opinion on essentially the following questions: L May the City of Pembroke Pines enact an ordinance authorizing the city to monitor violations of traffic signals within the city? 2. If the answer to Question One is "yes," may the city use unmanned cameras to monitor intersections and document traffic violations? 3. If the answers to Questions One and Two are both "yes," may the city use the photographic evidence from the unmanned cameras to advise a car owner of a violation? 4. If the answers to Questions One and Two are "yes," may the city use its code enforcement special magis- trate, and enforcement procedures provided in Chapter 162, Florida Statutes, to enforce violations of traffic signals? 5. If the answers to Questions One and Two are "yes," is the city authorized to install the unmanned camer- as at intersections for state and/or county roads as long as all authorities with jurisdiction over such roads consent and use the photographic evidence in the same manner as the city for violations documented at in- tersections involving only city streets? According to your letter, the City of Pembroke Pines seeks to enhance public safety within the city by attempt- ing to reduce dangerous driving behavior relating to the failure to obey red light indications on traffic signal devices, a laudable goal. The city commission desires to enact an ordinance authorizing the city to monitor traffic signals within the city. The city would install unmanned cameras at intersections within the city to record vehicles that fail to stop for red lights. The photographic evidence from the unmanned cameras would be used to advise the vehicle's owner of the violation. Questions One and Two Chapter 316, Florida Statutes, is the "Florida Unifonn Traffic Control Law." Section 316.002, Florida Statutes, expresses the legislative intent for adopting this law, stating: "It is the legislative intent in the adoption of this chapter to make uniform traffic laws to apply throughout (Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. rage L or Lf- Fla. AGO 2005-41, 2005 WL 1650328 (Fla.A.G.) Page 2 the state and its several counties and unifonn traffic ordinances to apply in all municipalities. The Legis- lature recognizes that there are conditions which require municipalities to pass certain other traffic ordin- ances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities. Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions. This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith. It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter." (e.s.) *2 The Legislature clearly recognized the authority of municipalities to adopt certain local legislation to control traffic and parking within municipalities. In section 316.008, Florida Statutes, the traffic control law enumerates several areas that local authorities are au- thorized to address, including, "[r]egulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties...." [FN1] As this office concluded in Attor- ney General's Opinion 97-06, the use of an unmanned camera to record vehicles that do not remain stopped and standing at a steady red light as required by section 316,075(3)(a), Florida Statutes, would appear to fall within the scope of this authority. Thus, it is my opinion that the City of Pembroke Pines is authorized by the tenns of section 316.002 and 316.008, Florida Statutes, to enact an ordinance authorizing the city to monitor violations of traffic signals with- in the city and to use unmanned cameras to monitor intersections and record traffic violations. Question Three As discussed above, it is my opmlOn that the City of Pembroke Pines is authorized to monitor violations of traffic signals within the city and to use unmanned cameras to record the license tag numbers of cars involved in such violations. It is a rule of statutory construction that an express power duly conferred may include the implied authority to use the means necessary to make the express power effective, although such implied authority may not warrant the exercise of a substantive power not conferred. [FN2] The City of Pembroke Pines is granted the authority to regulate and monitor traffic on municipal streets. The express power to regulate and monitor would appear to en- compass the authority to advise those in violation of local ordinances that their actions had been recorded by traffic cameras installed to detect such violations. I see no impediment to the city taking such steps in a public safety effort to reduce dangerous driving behavior relating to the failure to obey red light indications on traffic signal devices. Therefore, it is my opinion that the City of Pembroke Pines may use the photographic evidence from unmanned cameras to advise a car owner that his or her license tag number has been recorded in a violation of the traffic laws. Question Four and Five In a 1997 Attorney General Opinion requested by Palm Beach County, this office considered whether a county could enact an ordinance authorizing the use of unmanned cameras at traffic intersections for the purpose of is- suing citations for violations of section 316.075, Florida Statutes, Attorney General Opinion 97-06 concluded that the use of unmanned cameras to detect vehicles that do not remain stopped and standing at a steady red light as required by section 3l6.075(3)(a), Florida Statutes, would appear to come within the scope of statutory provi- ~ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 1_.L.L II 1 "" .1 rage j or q Fla. AGO 2005-41,2005 WL 1650328 (Fla.A.G.) Page 3 sions authorizing local governments to monitor traffic by security devices on public streets and highways. *3 The problem identified in the opinion was whether unmanned "electronic traffic infraction detectors" may in- dependently be used as the basis for issuing citations for violations of these traffic laws, The provisions of the Unifonn Traffic Code require that citations be issued when an officer" observes the commission of a traffic in- fraction[.]" [FN3] (e.s.) Thus, in order for citations for violations of traffic control laws to be issued, the statutes appear to require that an officer enforcing the traffic law personally observe or have personal knowledge of the particular infraction that serves as the basis for issuing the citation. The opinion concluded that nothing pre- cludes the use of unmanned cameras to record violations of section 316.075, Florida Statutes, but, a photograph- ic record of a vehicle violating traffic control laws may not be used as the basis for issuing a citation for such vi- olations. This office has suggested that legislative amendments would be necessary to allow the photographic re- cord from unmanned cameras monitoring intersections to be used as the sole basis for issuing citations. Chapter 316, Florida Statutes, contains provisions regulating traffic control signal devices and mandating a vehicular stop at a red light. Section 316.075, Florida Statutes, designates the colors to be used for traffic control signal lights used to control traffic, including municipal traffic, and requires that "the lights shall indicate and apply to drivers of vehicles and pedestrians" as described therein. [FN4] Pursuant to section 316,075(l)(c)1., Florida Statutes: "Vehicular traffic facing a steady red signal shall stop before entering the crosswalk on the near side of the intersection or, if none, then before entering the intersection and shal1 remain standing until a green indica- tion is shown...." The statute recognizes that municipal and county authorities may take certain actions to regulate traffic turning on a steady red signal. [FN5] The statute makes a violation of section 316.075, Florida Statutes, a noncriminal traffic infraction, punishable pursuant to Chapter 318 as a moving violation. [FN6] Thus, Chapter 316, Florida Statutes, contains enforcement and penalty provisions for violations of traffic control signal lights. In light of the proscription contained in section 316,007, Florida Statutes, that "no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized," this office continues to be of the opinion expressed in Attorney General Opinion 97-06 that legislative changes are necessary before loc- al governments may issue traffic citations and penalize drivers who fail to obey red light indications on traffic signal devices. Sincerely, Charlie Crist Attorney General [FNl]. Section 3l6.008(J)(w), Fla. Stat. [FN2]. See, e.g., Molwin Investment Company v. Turner, 167 So. 33 (Fla. 1936); Gessner v. Del-Air Corp., 17 So. 2d 522 (Fla. 1944); c/, Thayer v. State, 335 So. 2d 815,817 (Fla. 1976); Dobbs v. Sea Isle Hotel, 56 So. 2d 341 (Fla. 1952); Ideal Farms Drainage District v. Certain Lands, 19 So. 2d 234 (Fla, 1944). [FN3]. Section 316.640(5)(a), Fla. Stat. [FN4]. See s, 3l6.075(J)(a), indicating the actions to be taken when a green indication is given; s. 3l6.075(l)(b), Fla. Stat., providing direction when a steady yellow indication is presented; and s. 3l6.075(l)(c), Fla. Stat., re- @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. t......_.lln.~t.." ...__L1-... __0__ '__..' d . . . rage '+ or '+ Fla. AGO 2005-41, 2005 WL 1650328 (Fla.A.G.) Page 4 lating to a steady red indication. [FN5]. See 316.075(1)( c) l.a. and b., Fla. Stat., allowing counties and municipalities to prohibit right turns against a steady red signal at any intersection and to prohibit a left turn onto a one-way street futersecting anoth- er one-way street at a steady red signal. [FN6]. See 316.075(4), Fla. Stat. Fla. AGO 2005-41,2005 WL 1650328 (Fla.A.G.) END OF DOCUMENT @ 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. 1_.L..L.__ ./I____L"\ ____ _..1-1_ I . . I . . . ~lalUles ()G LOnSmUnon : v lew ~1atutes :-> LUU~->LnUj 1 o->~ectlOn UU~ : Unlme ::->unshme . Page 1 of3 Select Year: I~.~~~. II The 2009 Florida Statutes IitleXXIJI MOTOR VEHICLES Chapter3t6 STATE UNIFORM TRAFFIC CONTROL View Entire Chapter 316.008 Powers of local authorities.-- (1) The provisions of this chapter shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from: (a) Regulating or prohibiting stopping, standing, or parking. (b) Regulating traffic by means of police officers or official traffic control devices. (c) Regulating or prohibiting processions or assemblages on the streets or highways, including all state or federal highways lying within their boundaries. (d) Designating particular highways or roadways for use by traffic moving in one direction. (e) Establishing speed limits for vehicles in public parks. (f) Designating any street as a through street or designating any intersection as a stop or yield intersection. (g) Restricting the use of streets. (h) Regulating the operation of bicycles, (i) Regulating or prohibiting the turning of vehicles or specified types of vehicles. (j) Altering or establishing speed limits within the provisions of this chapter. (k) Requiring written crash reports. (l) Designating no-passing zones. (m) Prohi~iting or regulating the use of controlled access roadways by any class or kind of traffic. (n) Prohibiting or regulating the use of heavily traveled streets by any class or kind of traffic found to be incompatible with the normal and safe movement of traffic. ~tatmes &:: ~onstltutlon : v lew ~tatmes :-.? .LuuY-.?~nUj 1 o-.?~ectlon uu~ : vnllne ~unsnme yage L or j (0) Designating hazardous railroad grade crossings in conformity to criteria promulgated by the Department of Transportation. (p) Designating and regulating traffic on play streets, (q) Prohibiting pedestrians from crossing a roadway in a business district or any designated highway except on a crosswalk. (r) Regulating pedestrian crossings at unmarked crosswalks, (s) Regulating persons upon skates, coasters, and other toy vehicles, (t) Adopting and enforcing such temporary or experimental regulations as may be necessary to cover emergencies or special conditions. (u) Enacting ordinances or erecting signs in the rights-of-way to control, regulate, or prohibit hitchhiking on streets or highways, including all state or federal highways lying within their boundaries. (v) Regulating, restricting, or prohibiting traffic within the boundary of any airport owned by the state, a county, a municipality, or a political subdivision and enforcing violations under the provisions of this chapter and chapter 318, (w) Regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties and providing for the construction and maintenance of such streets and highways. (2) The municipality, through its duly authorized officers, shall have nonexclusive jurisdiction over the prosecution, trial, adjudication, and punishment of violations of this chapter when a violation occurs within the municipality and the person so charged is charged by a municipal police officer. The disposition of such matters in the municipality shall be in accordance with the charter of that municipality. This subsection does not limit those counties which have the charter power to provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities from the proper exercise of those powers pertaining to the consolidation and unification of a traffic court system within such counties. (3) No local authority shall erect or maintain any official traffic control device at any location so as to regulate the traffic on any state road unless approval in writing has first been obtained from the Department of Transportation. (4) A county or municipality may enact an ordinance providing a fine for the violation of s. 316.1955 in excess of the fine specified by s. 318.18(6), except that such a fine may not exceed $250. Any such ordinance may provide for the deposit of such fines in a separate county or municipal account to be used in the following manner: (a) One-third to be used to defray expenses for the administration of this subsection. (b) Two-thirds to be used to provide funds to improve accessibility and equal opportunity to qualified persons who have disabilities in the county or municipality and to provide funds to conduct public awareness programs in the county or municipality concerning persons who have disabilities. ~'[aruJes 6[ Lonsnmnon : v lew ~1a1U1eS :-?L.VV~-?LnVj lO-?~eCnon VV~ : vnllne ~unsmne rage j or j (5)(a) A county or municipality may enact an ordinance providing a fine for the violation of s. 3J6.1945(1)(b)2. or 5. in excess of the fine specified by s. 318,18(2), except that such fine may not exceed the fine specified in s. 318.18(2) by more than $3. However, such ordinance shall provide that the fines collected pursuant to this subsection in excess of the fines which would be collected pursuant to s. 318.18(2) for such violations shall be used by the county or municipality for the purpose of funding a firefighter education program. The amount of the fines collected pursuant to this subsection in excess of the fines which would be collected pursuant to s. 318.18(2) for such violations shall be reported on a monthly basis by the clerk of the court to the appropriate county or municipality. (b) A county or municipality may enact an ordinance which dedicates a portion of any fine collected for a violation of such ordinance for the purpose of funding a firefighter education program, if such ordinance is limited to the regulation of parking within a firesafety zone. (6) A county or municipality may enact an ordinance providing for the establishment of a "combat automobile theft" program, and may charge a fee for the administration of the program and the cost of the decal. Such a program shall include: (a) Consent forms for motor vehicle owners who wish to enroll their vehicles. (b) Decals indicating a vehicle's enrollment in the "combat automobile theft" program, The Department of Law Enforcement shall approve the color, design, and other specifications of the program decal. (c) A consent form signed by a motor vehicle owner provides authorization for a law enforcement officer to stop the vehicle when it is being driven between the hours of 1 a.m. and 5 a,m., provided that a decal is conspicuously affixed to the bottom left corner of the back window of the vehicle to provide notice of its enrollment in the "combat automobile theft" program. The owner of the motor vehicle is responsible for removing the decal when terminating participation in the program, or when selling or otherwise transferring ownership of the vehicle, No civil liabilities will arise from the actions of a law enforcement officer when stopping a vehicle with a yellow decal evidencing enrollment in the program when the driver is not enrolled in the program provided that the stop is made in accordance with the requirements of the "combat automobile theft" program. History.--s. 1, ch. 71-135; s, 3, ch. 71-982; s. 1, ch. 76-72; s. 2, ch. 83-164; s. 1, ch. 84-234; s. 1, ch. 85-227; s. 1, ch, 85-325; s. 3, ch, 86-154; s. 1, ch. 89-34; s. 25, ch, 90-330; s. 1, ch. 93-30; s. 33, ch. 94-306; s. 1, ch. 96-200; s. 4, ch. 96-350; s, 81, ch. 99-248, Copyright (Q 1995-2009 The Florida Legislature. Privacy$tatement ,CQHtaCtJ.Js Page 1 of2 Westlaw. West's F.S.A. ~ 316.007 Page 1 Effective: [See Text Amendments] West's Florida Statutes Annotated Currentness Title XXIII. Motor Vehicles (Chapters 316-325) "fj Chapter 316, State Uniform Traffic Control (Refs & Annos) ... 316.007. Provisions uniform throughout state The provisions of this chapter shall be applicable and unifonn throughout this state and in all political subdivi- sions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized. However, this section shall not prevent any local authority from en- acting an ordinance when such enactment is necessary to vest jurisdiction of violation of this chapter in the local court. CREDIT(S) Laws 1971, c. 71-135, ~ 1; Laws 1971, c. 71-982, ~ 2. HISTORICAL AND STATUTORY NOTES Amendment Notes: Laws 1971, c. 71-982, ~ 2, added the second sentence. Prior Laws: Fla.St.1969, ~~ 186.9992,317.711. Fla.St.1967, ~ 186.0191. Laws 1963, c. 63-175, ~ 1(317.71). Fla.St.1961, ~ 317.71. Laws 1957, c. 57-333, ~ 190. Laws 1941, c. 20578, ~ 70. CROSS REFERENCES Construction of statutes, see ~~ 1.01, 1.02. (Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.1 O&destination=atp&prft=H... 11/17/2009 Page 2 of2 West's F.S.A. ~ 316.007 Page 2 LIBRARY REFERENCES Automobiles €= 5(5). Westlaw Topic No. 48A. C.J.S. Motor Vehicles ~~ 42 to 44, 47 to 50. RESEARCH REFERENCES Encyclopedias Municipal or Local Power, FL Jur. 2d Automobiles & Other Vehicles ~ 6. Unifonn Traffic Control Law; Exclusivity, FL Jur. 2d Automobiles & Other Vehicles ~ 320. City Streets, FL Jur. 2d Highways, Streets, & Bridges ~ 102. West's F. S. A. ~ 316.007, FL ST ~ 316.007 Current through Chapter 2009-270 (End) (C) 2009 Thomson Reuters. No Claim to Orig. U.S. Govt. Works. END OF DOCUMENT <Q 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?rs=WLW9.10&destination=atp&prft=H...11/17/2009