Legal Report, April 2016

General Counsel, General Counsel, Jennifer G. Ashton
Corbett, White, Davis & Ashton, P.A.

1. House Bill 273 (CS/HB 273)—Public Records.

House Bill 273 (HB 273) was approved by the Governor on March 8, 2016, and became effective on that date. The bill makes the following changes to the Public Records Law:

• Requires that all public agency contracts for services with private contractors entered into or amended on or after July 1, 2016, include a statement in large, boldface type informing the contractor of the contact information for the public agency’s records custodian, and instructing the contractor to contact the records custodian with any questions related to the contractor’s duty to provide public records.
• Repeals the requirement that contracts for services require the contractor to transfer its public records to the public agency upon termination of the contract. Instead, contractors must address whether they will retain public records or transfer them to the public agency upon completion of the contract.
• Requires that requests for public records related to contracts for services be made to the public agency. If the public agency determines that it does not possess the records, it must immediately notify the contractor, who must provide or allow access to the records within a reasonable time.  If the contractor fails to comply with the public agency’s request for records, the public agency shall enforce the contract provisions and seek production of the records.  Also, a contractor who fails to provide the records to the public agency within a reasonable time may be subject to the existing public records enforcement penalties.
• Establishes a safe harbor provision, which requires the requestor of records provide written notice to both the public agency and contractor at least 8 business days before filing a lawsuit against the contractor. A contractor that complies with the request within the 8 business days’ time frame is not liable to the requestor for the reasonable costs of enforcement (i.e. attorney’s fees)

2. Florida Attorney General Opinion 2016-04 (2016)—Municipal code enforcement; drones; privacy rights.

The City of Aventura (Aventura) wanted to adopt an ordinance to prohibit the unauthorized use of surveillance drones by private persons or entities, when the use invaded the privacy rights of citizens. The proposed ordinance contained a general prohibition on the use of drones, contained exceptions to this general prohibition that were similar to those found in Section 934.50(4), Florida Statutes, and imposed civil penalties for violations of the ordinance via the code enforcement process. Aventura requested an opinion of whether Section 934.50, Florida Statutes, preempted municipal prohibitions on the use of drones because the statute did not expressly mention the regulation of drones via municipal code enforcement.
Section 934.50(3), Florida Statues, prohibits a law enforcement agency’s use of drones to gather evidence or other information, and further prohibits a person, a state agency, or political subdivision’s (which includes municipalities) use of drones equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance in violation of the person’s reasonable expectation of privacy without his or her written consent.
Under the statute, a person is presumed to have a reasonable expectation of privacy if he or she is not observable by persons located at ground level in a place where they have a legal right to be.  Section 934.50(4), Florida Statutes, describes multiple exceptions to the prohibitions under the Act for use of drones in specific instances. Section 934.50(5), Florida Statutes, provides multiple remedies for violation of the Act.
After analyzing the Act, the Florida Attorney General found no express preemption of the regulation of drones and that the statutory language of section 934.50, Florida Statutes, was not so pervasive as to preclude regulation by local government. The Attorney General concluded that section 934.50, Florida Statutes, does not prevent municipalities from adopting an ordinance that prohibits the use of drones with imaging devices by private individuals or entities within the city limits that invade the privacy rights of municipal residents.

3. Florida Attorney General Opinion 2016-02 (2016)—Infrastructure surtax; definition of infrastructure; emergency generators.

The City of Largo’s (Largo) City Hall, Police Department, 911 Communications Center, and Emergency Operations Center are located in a central municipal complex. Three of five emergency generators at the municipal complex have exceeded their useful life expectancy. All Uninterruptible Power Source units at the municipal complex are beyond their useful lives and are no longer supported by the manufacturer. The electrical system in the municipal complex has never been updated and the components are not compatible with power generated by new technology.
Pinellas County adopted a 1% infrastructure surtax pursuant to section 212.055(2), Florida Statutes, and Largo receives revenues from the surtax. Largo requested an opinion regarding whether it could purchase emergency generators, Interruptible Power Source units, and fund site improvements with funds acquired via the infrastructure surtax revenues.
Although “infrastructure” is defined at section 212.055(2)(d)1., the terms “fixed capital expenditures and fixed capital outlay,” which may be funded with infrastructure surtax revenues for construction, reconstruction or improvement of public facilities with a life expectancy of five or more years, are not defined.
The Florida Attorney General opined that although the terms “fixed capital expenditures and fixed capital outlay” were not defined in Chapter 212, Florida Statutes, they were defined in Chapter 216, Florida Statutes, which relates to state planning and budgeting.  She stated that “[w]hen the Legislature uses the identical words or phrases in different chapters of the Florida Statutes, we may assume that it intended the terms to mean the same thing.”  Therefore, the Attorney General concluded that Largo’s proposed use of the surtax revenues was consistent with the definitions found in Chapter 216, and with the general purpose of an infrastructure surtax to fund the replacement, repair, or renovation of long term assets in public facilities, such as machinery and equipment.