TDC Backup 04/25/2011
HillerGeorgia
'l'.7c:.- 1/2;;" \ Tgv\ ~
From:
Sent:
To:
Cc:
Subject:
GreeneColleen
Monday, March 28, 2011 414 PM
HillerGeorgia
WertJack; KlatzkowJeff; RaineyJennifer
RE: AGO 88-49 (purchase of beach property for public access)
Commissioner Hiller,
Expenditure of TDT funds must be analyzed on a case by case basis. I will confirm the details of the proposed purchase
with Gary McAlpin and follow up with you.
Thank you.
Colleen M. Greene
Assistant County Attorney
(239) 252-8400
Fax (239) 252-6300
From: HillerGeorgia
Sent: Monday, March 28, 2011 3:57 PM
To: GreeneColleen
Cc: WertJack; KlatzkowJeff; RaineyJennifer
Subject: RE: AGO 88-49 (purchase of beach property for public access)
Thanks Colleen!
The AGO you sent addresses the purchase of land that would become part of a beach preserve to which there is
existing public access and therefore ties back to the specific wording of the amended statute which addresses physical
preservation of the beach/shoreline - section 5(a)(4). The' terpretatTontllat TDT funds can be used for any purpose
that promotes tourism is overreaching as clearly expiaine in AGO 88-49. rjpo 88-49 makes it clear that the statute has
to be narrowly interpreted as plainly written. The Gulfshore be acquired to gain beach access, and such a
purchase in no way promotes the physical preservation of the t(each/shoreline. To suggest that TDT dollars can be spent
in any way that promotes tourism would turn this pool of monJy into a slush fund.
',,-. -:;:> 1!\--'\f"1-{M b'D
Georgia Hiller, Commissioner
Board of County Commissioners, District 2
3299 Tamiami Trail East, Suite # 303
Naples, FL 34112
(239) 252-8602
(239) 252-3602 Fax
Agenda Item #: "a~
Meeting Date. Lf/';;;S III
,
From: GreeneColleen
Sent: Monday, March 28, 2011 3:03 PM
To: HillerGeorgia
Cc: WertJack; KlatzkowJeff
Subject: FW: AGO 01-42 (purchase of beach property)
Presentedby ~eor<it;cL H. \\e.c'
Commissioner Hiller,
Attached is the AGO which I referenced at the TDC meeting this morning
Please contact me if you would like additional information or to discuss.
Thank you.
Colleen M. Greene
Assistant County Attorney
(239) 252-8400
Fax (239) 252-6300
From: HerreraSandra
Sent: Monday, March 28, 2011 3:00 PM
To: GreeneColleen
Subject: AGO 01-42
<< File: AGO 2001-42 - Tourist development tax, purchase of beach property.PDF>>
Sandra Herrera, Certified Paralegal
Office of the County Allorney
W, Harmon Turner Building F
3299 Tamiami Trail East, Suite 800
Naples, Florida 34112-4902
Phone: (239) 252-8400
Facsimile: (239) 252-6300
Sandraherrera@co/liergov.net
:- ',,:'~,
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2
Advisory Legal Opinion - Use of tourist development tax
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Page lof2
Today is April 25, 2011
GENER\L'1 FLORIDA
PAM BONDI
Advisory Legal Opinion. AGO 88-49
Number AGO 88-49
Date: November 8, 1988
Subject: Use of tourist development tax
~ Print Version
Mr. Randy Ludacer
County Attorney
Monroe County
310 Fleming Street, Room 29
Key West, Florida 33040
RE: TOURIST DEVELOPMENT TAX-COUNTJES-use of tourist development tax revenues
by county for beach improvement to purchase real property for beach access,
unauthorized.
Dear Mr. Ludacer:
You have asked substantially "the following question:
May Monroe County use tourist developmer:t tax funds pursuant to s. l25.0104(5}
(a)4., F.S., to acquire real property to provide beach access for the public?
In swn:
Monroe county"~;;-nOL duthori7.Cd by the provisions of s. 125.0104(5) (a)4.,
F. S., to use t~-st development tax revenues to acquire real pr.:::E~sty for
public beach ..access.
Acccrding to your letter, Monroe County has been awarded a grant by the
Department of Natural Resources to acquire a corridor of land between a
roadway and the beach to provide access to the beach. The grant requires a 25%
match of funds to be provided by the county and Monroe County is considering
using tourist development tax revenues to make up these matching funds.
Section 125.0104, F. S., the "Local Option Tourist Development Act," [1]
authorizes any county in Florida to levy and impose a tax for: the privilege of
renting, leasing, or letting for consideration "living quarters or
accommodations in any hotel, apartment hotel, motel, resort motel, apartment,
apartment motel, roomjnghouse, mobj.le home park, recreational vehicle park, or
condominium for a term of 6 months or less . . . " unless such activities are
exempt according to the provisions of Ch. 212, F.S. [~~J
The authorized uses for the revenues generated by the tourist development tax
are set forth in subsection (5) of the statute which provides in part:
"(5) AUTHORIZED USES OF REVENUE.--
(a) All tax revenues received pursuant to this section by a county imposing
the tourist development tax shall be used by that county for the following
purposes only:
, , ,
4. To finance beach improvement, maintenance, renourishment, restoration, and
erosion control .. ." (e. s.)
It is a well-recognized principle of statutory construction that the mention
of one thing in a statute implies the exclusion of another. Thus, when a
I statute enumerates the things upon which it is to operate, or forbids certain
things, it is ordinarily to be construed as excluding from its operation all
things not expressly mentioned. [3]
http://www.myfloridalegal.com/ago.nsf/Opinions/4F003 D9B B3 ED3 B3485256571 006AD ...
4/25/20 II
Advisory Legal Opinion - Use of tourist development tax
Page 2 of2
IEnter search
Applying this rule to the instant situation, the specific enumeration in s.
125.0104(5) (a)4., F.3., of those projects for which tourist development tax
revenues may be spent implies the exclusion of others. [4J I would note that s.
125.0104(5) (a)l.. F.S., clearly authorizes the expenditure of tourist
development: tax funds for dc-qui .c:d tion of publicly owned and operated
convention centers, sports sL0.diums, sports arenas, coliseums, or auditoriums.
Thus, the Legislature has madr> provision for the acquisition of property with
tourist development tax funds for certain purposes which do not include the
purchase of real property for beach access pursuant to s. 125.0104 (5) (a}4.,
F.S.
Gol
Therefore, in the absence of specific authorization in s. 125.0104(5) (a)4.,
F.S., for the purchase of real property for providing public beach access, I
cannot conclude that Monroe County may expend tourist development tax revenues
for such purpose.
Sincerely,
Robert A. Butterworth
Attorney General
RAB/tgh
[1] Section 125.0104 (1), 1".$.
[2J SecUon 125.0104(3) (a) and (b), F.S.
[3J See, e.g., Thayer v. State, 335 So.2d 815, 817 (Fla. 1976); and AGO 79-30
which concluded that tourist development tax revenues may be used solely for
the maintenance of existing publicly owned and operated facilities meeting the
requirements of the statutory designations set out in the Local Option Tourist
Development Act.
IEnter email a~~ress
Stlbmlt j
l4] And see, Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952), and Alsop
v. Pierce, 19 So.2d '799, 805--806 (Fla. 1()44), for the proposition that a
legislative direction as to how a thing Rhall be done is, in effect, a
prohibition against its being done in any other way.
http://www.myfloridalegal.eom/ago.nsf/Opinions/4F003 D9BB3 ED3 B34852565 71 006AD...
4/2512011
MEMORANDUM
TDL 1/2-(/11 //;e)
850 PARK SHORE DRIVE ~~ ____./
TRJANON CENTRE - THIRD FLOOR
NAPLES, FL 34103
239.649.2708 DIReCT
239.649.6200 MAIN
239.261.3659 FAX
www.ra1aw.com
I____&)ANDRESS II
A LEGAL PROFESSIONAL ASSOCIATION
To:
Commissioner Georgia Hiller
VIA: E-mail
FROM:
R. Bruce Anderson '~~A--
DATE:
April 22, 2011
RE:
TDC Application for Emergency Dredging of Marco Island, Collier Bay
Entrance Channel
This memo is to follow up on our meeting conceming the above application, The
application is to dredge sand from the channel and place it on the public beach at Hideaway
Beach as was previously done ten years ago using TDC funding. The area where the sand
will be placed has an established erosion control line ("ECl"), which as you know, is the new
property line denoting ownership by the state on the seaward side of the ECL. I spoke with
Michael Poff, P.E., Coastal Engineering Consultants, regarding the placement of sand and he
advised me that the sand placement would occur on both sides of the ECl and that the bulk
of the sand would be seaward of the ECL. Attached is a slide on this project he provided to
me that shows placement of most of the sand on the seaward (right hand) side of the ECL.
When sand is placed somewhere as a result of dredging, the primary purpose is to remove
sand to clear the channel and incidentally to dispose of the sand by placing it on a nearby
beach or having it hauled away, or some other disposal method. Depositing the dredged
sand on nearby Hideaway Beach is the most cost effective, plus the Hideaway Special
Taxing District will pay design and pennitling costs for the dredging project and placement of
sand further reducing costs,
The area where the dredged sand would be placed has experienced significant
erosion on both sides of the ECL. Section 161.211 Florida Statutes (copy attached) provides
in subparagraph 2 that if the shoreline gradually recedes landward of the ECl that the ECl is
no longer operative and ownership based on mean high water line becomes effective again.
The effect of that would be common law applies and that in the future if sand naturally
accretes along the shoreline either gradually or as a result of a stonn, the accreted area
becomes private properly because the mean high water line moves further seaward.
Maintenance of the beach along the ECl maintains the public property line and public
access.
I will not be at the TDC meeting because of a long-planned trip,
Thank you.
Cc: Erik Brechnitz (Via: E-mail)
Michael Poff (Via: E-mail)
Agenda Item # 7-6
Meeting Date. fiX/II
Presented by 6eorcd' \'" \~ ~ \e. r
NEW YORK Q.EvFlAND
WASHINGTON, D.C. T AllMlASSEE
653014 v_01 \ 112661.0001
TOlEDO
ORlANDO
AK
FORL.____
Statutes & Constitution :View Statutes: Online Sunshine
Page 32 of 49
161.191 Vestlngoftitletolands.-
(1) Upon the filing of a copy of the board of trustees' resalutian and the recording of the survey
showing the location of the erosion control line and the area of beach to be protected as provided in s.
161.181, title to all lands seaward of the erosion control line shall be deemed to be vested in the state
by right of its sovereignty, and title to ali lands landward of such line shall be vested in the riparian
upland owners whose lands either abut the erosion control line or would have abutted the line if it had
been located directly on the line of mean high water on the date the board of trustees' survey was
recorded.
(2) Once the erosion control line along any segment of the shoreline has been established in
accordance with the provisions of ss. 161.141-161.211, the common law shall no Langer operate to
increase or decrease the proportions of any upland property lying landward of such line, either by
accretion or erosian or by any other natural or artificial process, except as pravided in s. 161.211(2) and
(3), However, the state shall not extend, or permit to be extended through artificial means, that portion
of the protected beach lying seaward of the erosion control line beyond the limits set forth in the survey
recorded by the board of trustees unless the state first obtains the written consent of all riparian upland
owners whose view or access to the water's edge would be altered or impaired,
Hlstory.-s. 6. ch. 70-276; s. 1, ch. 70.439; S. 3, ch. 79.233.
161.201 Preservation of common-law r1ghts,-Any upland owner or lessee who by operation of ss,
161.141-161.211 ceases to be a holder af title ta the mean high-water line shall, nanetheless, continue
to be entitled to all common-law riparian rights except as otherwise provided in s. 161.191(2), including
but not limited ta rights of Ingress, egress, view, boating, bathing, and fishing. In addition the state
shall not allow any structure to be erected upon lands created, either naturally or artificially, seaward
of any erosion control line fixed in accordance with the provisions of ss. 161.141-161.211, except such
structures required for the prevention of erasion. Neither shall such use be permitted by the state as
may be injurious to the person, business, or property of the upland owner or lessee; and the several
municipalities, countfes and speciat districts are authorized and directed to enforce this provision
through the exercise of their respective police powers.
Hfstory,-s. 7, ch. 70.276.
161.211 Cancellation of resolution for nonperformance by board of trustees.-
(1) If far any reasan construction of the beach erosion control project authorized by the board of
trustees is not commenced within 2 years from the date of the recording of the board of trustees'
survey, as provided In s, 161.181, or in the event construction Is commenced but halted for a period
exceeding 6 months from commencement, then, upon receipt of a written petition signed by those
owners or lessees of a majority of the lineal feet of riparian property which either abuts or would have
abutted the erosion control line If the same had been located at the line of mean high water on the date
the board of trustees' survey was recorded, the board of trustees shall forthwith cause to be canceled
and vacated of record the resolution authorizing the beach erosion control project and the survey
locating the erosion control line, and the erosian control line shall be null and void and of no further
force or effect,
(2) If the state, county, municipality, erosion control district, or other governmental agency charged
with the responsibility of maintaining the protected beach fails to maintain the same and as a result
thereof the shoreline gradually recedes to a point or points landward of the erosion control tine as
established herein, the provisions of 5. 161.191 (2) shall cease to be operative as to the affected upland,
Statutes & Constitution: View Statutes: Online SWlshine
Page 33 of 49
(3) In the event a substantial portion of the shoreline encompassed within the erosion control
project recedes landward af the erosion control line, the board of trustees, on its own initiative, may
direct or request, or, upon receipt of a written petition signed by the owners or lessees af a majority of
the lineal feet of riparian property lying within the erosion control project, shall direct or request, the _
ajency ch,,~ged with the responsibility of maintaining the beach to restore the same to the extent::::> W K ~
provided for in the board of trustees' recorded survey, If the beach is not restored as directed or \ ~\) ~ t:1)
requested by the board of trustees within a period of f year from the date of the directive or request, \l--\::: (2-1
the board of trustees shall forthwith cause to he canceleCfimd vacated of record the resolution ~v\t'-- v ~
authorizing the beach eros;on control project and the survey locating the erosion controllineJ and the -~------
erosion control line shall be null and void and of no further force or effect.
History..... 8, ch. 70-276; s.l, ch. 70-439; s. 3, ch. 79-233.
161.212 Judicial review relating to permits and llcenses,-
(1) As used in this section, unless the context otherwise requires:
(a) "Agency" means any official, officer, commission, authority, council, committee, department,
division, bureau, board, section, or ather unit or entity of state government.
(b) "Permit" means any permit or license required by this chapter.
(2) Any person substantially affected by a final action of any agency with respect to a permit may
seek review within 90 days of the rendering of such decision and request monetary damages and other
relief in the circuit court in the judicial circuit in which the affected property is located; however,
circuit court review shall be confined solely to determining whether final agency action is an
unreasonable exercise of the state's police pawer constituting a taking without just compensatian.
Review of final agency action for the purpose of determining whether the action is in accordance with
existing statutes or rules and based on competent substantial evidence shall proceed in accordance with
chapter 120.
(3) If the court determines the decisian reviewed is an unreasonable exercise of the state's police
power constituting a taking without just compensation, the court shall remand the matter to the agency
which shall, within a reasonable time:
(a) Agree ta issue the permit;
(b) Agree to pay appropriate monetary damages; however, in determining the amount of
compensation to be paid, consideration shall be given by the court to any enhancement to the value of
the land attributable to governmental action; or
(c) Agree to modify its decision to avoid an unreasanable exercise of police. power.
(4) The agency shall submit a statement of its agreed-upon action to the court in the form of a
proposed order. If the action is a reasonable exercise of police power, the court shall enter its final
arder approving the proposed order. If the agency fails to submit a proposed order within a reasonable
time not to exceed 90 days which specifies an action that is a reasonable exercise af pollee power, the
court may order the agency to perform any of the altematives specified in subsection (3).
(5) The court shall award reasonable attorney's fees and court costs to the agency or substantially
affected person, whichever prevails.
(6) The provisions of this section are cumulative and shall not be deemed to abrogate any other
remedies provided by law.
History.-ss. 1, 2, 3, 4, 5, 6, ch, 78-85.
161.242 Harvesting of sea oats and sea grapes prohibited; possession prima facie evidence of
violation.-
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