Attorney General Opinions
JOSEPH B. ALLEN, III
ATTORNEY AT LAW
604 WHITEHEAD STREET, KEY WEST, FLORIDA 33040
TELEPHONE (305) 294-8363 (305) 296-5031
May 8, 1981
Hon. Ralph W. White
Clerk of the Circuit Court
500 Whitehead Street
Key West, Florida 33040
Attention:
Mrs. June Holland, Deputy
Dear Mr. White:
In accordance with your request I have conferred
with Chuck Tittle of Tavernier regarding the installation
of a terminal in the Upper Keys. I requested Chuck to
send a letter to me outlining his proposal. As soon as
I receive same, I will advise so that we may draft a
proposal.
For your information, I am enclosing a copy of
AGO 80-93 which may be pertinent to this matter.
JBA!na
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DEPARTMENT OF LEGAL AFFAIRS
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE, FLORIDA 32304
JIM SMITH
AttorneV General
State of Florida
December 2, 1980
080-93
The Honorable R. H. Hackney, Jr.
Clerk of the Circuit Court
Sarasota County
Post Office Box 3079
Sarasota, Florida 33578
Re: CLERKS OF THE CIRCUIT COURT--CONTRACTS--clerk of
circuit court not authorized to enter into agree-
ment with private corporation for use of clerk's
office after normal working hours. Ch. 28, F.S.;
~145.l2l, F.S.; Art. VII, ~~l and 10, State Canst.
Dear Hr. Hackney:
This is in response to your request for an opinion on substan-
tially the following question:
~AY THE CLERK OF THE CIRCUIT COURT ENTER
INTO AN AGREEMENT WITH A PRIVATE CORPORA-
TION lVREREBY CERTAIN EMPLOYEES OF THE
CLERK'S OFFICE HOULD WORK FOR THE PRIVATE
CORPOPATION AFTER NORV~L WORKING HOURS,
RETRIEVING INFORMATION FROM THE CLEP~'S
FILES?
Under the proposed agreement, the clerk's office would "allow
sane of [its] employees to work for [the Credit Bureau of
Greater St. Petersburg, Inc.] on a part time basis after 5:00
p.m., in the civil division" of the clerk's office in order to
retrieve certain information directly froQ the court files
stored therein. The agreement provides that the credit bureau
would be "responsible for the instruction and supervision" of
the persons employed by the corporation and would "hold the
clerk of the circuit court, the County of Sarasota and the
persons hired, harmless of liability on the information developed
in this process." The information obtained would be used "to
The Honorable R. H. Hackney, Jr.
P age Two
080-93
build an accurate credit report for [the credit bureau's] cus-
tomers." You inquire as to whether your office may properly
enter into such an agreement.
This office has previously stated that the clerk of the circuit
court, although a constitutional officer, possesses only such
powers as have been expressly or by necessary implication granted
by statute. See,~, AGO 078-95, concluding that in the absence
of any authorizing statute, the clerk of the circuit court was
not authorized to enter into a contract for insurance as speci-
fied therein; AGO's 077-76 and 079-70; cf., AGO 080-59. See
Art. VIII, ~l(d), State Const., providing that the clerk or-the
circuit court is a county officer who serves, unless otherwise
provided by county charter or special law approved by vote of the
electors, not only as clerk of the court but as ex officio clerk
of the board of county commissioners, county auditor, recorder
and custodian of county funds; Art. V, ~16, State Const.; and
Alachua County v. Powers, 351 So.2d 32 (Fla. 1977). See also
Art. II, ~5(c), State Const., which provides that "[t]he powers,
duties, compensation and method of payment of state and county
officers shall be fixed by law." And see Security Finance Co. v.
Gentry, 109 So. 220, 222 (Fla. 192~ in which the Florida Supreme
Court stated that "[t]he clerk's authority is entirely statutory,
and his official action, to be binding upon others, must be in
conformity with the statutes." Cf. Pan American World Airways v.
Gregory, 96 So.2d 669, 671 (3 D.~A. Fla., 1957), stating that
"[t]he clerk is an officer of the court whose duties are ministe-
rial and as such he does not exercise any discretion." Thus the
clerk's powers, like those of other constitutional county offi-
cers, are limited to those which have been expressly granted or
are clearly necessary to give meaning and effect to those which
have been ~xpressly granted. See Gessner v. Del-Air Corporation,
17 So.2d 522 (Fla. 1944); ~~ite v. Crandon, 156 So. 303 (Fla.
1934); Harvey v. Board of Public Instruction, 133 So. 868 (Fla.
1931); 67 C.J.S. Officers ~190(a).
Chapter 28, F.S., sets forth with particularity the powers and
duties of the clerk of the circuit court. See,~, ~28.222,
F.S., regarding the clerk's responsibilities as county recorder
and ~28.29, F.S., which provides for the recording of orders
and judgments of the court. See also ~28.24, F.S., which provides
for the service charges to be made by the clerk of the circuit
court for services rendered ty his office in recording documents
and instruments and in performing the duties enumerated therein.
I am not aware, however, of any provision in Ch. 28, or any other
general law, which authorizes the clerk to enter into an agreement
The Honorable R. H. Hackney, Jr.
Page Three
080-93
with a private corporation such as the one under consideration in
the present inquiry which would permit his employees to work for a
private business on county owned property, making use of publicly
owned records and equipment regardless of the hour. If the clerk
is without the statutory authority to perform the questioned
activities, and I can find none, then there is no lawful authority
or basis for the clerk's office to use public property in the
performance of such unofficial and unauthorized functions and
operations. Nor may such a power be implied by the clerk to
enable him to engage in the type of action suggested by your
inquiry. Although an express power duly conferred may include the
implied power to use the means to make the express power effective,
such implied authority does not warrant the exercise of a substan-
tive power not conferred. Mo1win Investment Co. v. Turner, 167
So. 33 (Fla. 1933). Any implied power must be necessarily implied
from a duty expressly imposed by statute, see Florida State
University v. Jenkins, 323 So.2d 597 (1 D.C.A. Fla., 1975), and
must be essential in order to carry out the expressly granted
power or duty imposed. See AGO's 078-135, 078-77 and 073-374;
67 C.J.S. Officers 9192. Moreover, where there is a reasonable
doubt as to the lawful existence of a particular power which is
being exercised, the further exercise of that power should be
arrested. See Edgerton v. International Co., 89 So.2d 488 (Fla.
1956); State-ex rel. Greenberg v. Florida Board of Dentistry,
297 So.2d 628~1~C.A. Fla., 1974), cert. dismissed, 300 So.2d
900 (Fla. 1974). -
To retrieve records from the files of the clerk's office would
necessarily involve the use of the supplies, equipment and space
of the clerk's office which have been provided by public funds.
Cf. Alachua County v. Powers, 351 So.2d 32 (Fla. 1977), regarding
the funding of the clerk's office and AGO 079-107, concerning
the responsibilities of the county to supply office space and
necessary utilities to the clerk of the circuit court as a county
officer. Such a use of public property for private purposes,
not 'governmental purposes, is outside the clerk's statutory
authority and is undertaken in a personal and individual capacity
and not in his official capacity, and public employees, equipment,
property, materials and space may not be used for such purposes.
Cf. ~145.121, F.S., pertaining to funds derived from the use of
personnel, equipment or space of the office of a county official,
including the clerk of the circuit court, which provides that
such funds shall be included in the income of the office; however,
"[n]othing herein shall be construed as authorizing a county
official to use his office or its personnel or property for a
private purpose."
The Honorable R. H. Hackney, Jr.
Page Four
080-93
Moreover, the State Constitution prohibits the expenditure of
public money fora private purpose. Section I, Art. VII, State
Const., impliedly limits the imposition of taxes and the expendi-
tures of tax revenues to public purposes. See,~, AGO's
071-28 and 073-222. Section 10, Art. VII, State Const., prohibits
the state or county or any agency thereof from using, giving or
lending its taxing power or credit to aid any private interest
or individual. The purpose of this constitutional provision is
"to protect public funds and resources from being exploited in
assisting or promoting private ventures when the public would at
most be incidentally benefitted." Bannon v. Port of Palm Beach
District, 246 So.2d 737, 741 (Fla. 1971). Cf. State v. Town of
North Miami, 59 So.2d 779 (Fla. 1952); Bailey v. City of Tampa,
III So. 119 (Fla. 1926). There must be "some clearly identified
and concrete public purpose as the primary objective and a
reasonable expectation that such purpose will be accomplished
to justify the loan . . . [of] property to a nongovernmental
entity." O'Neill v. Burns, 198 So.2d 1,4 (Fla. 1967). Vlith
respect to the instant inquiry, the materials, equipment and
space of the clerk's office under the proposed agreement would be
used for the benefit of the private corporation. There is no
concrete public purpose as the primary objective to justify the
performance of such function or the use or expenditure of public
funds to defray the expenses therefor.
Accordingly, I am of the opinion that the clerk of the circuit court
is not authorized to enter into an agreement with a private corpora-
tion whereby the facilities of the clerk's office would be used by
the corporation for its own benefit.
/J~re~
~ITH
ATTORNEY GENERAL
Prepared By:
~~~
Joslyn Wilson
Assistant Attorney General
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DEPARTMENT OF LEGAL AFFAIRS
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
TALLAHASSEE. FLORIDA 32301
JIM SMITH
Attorney General
State of Florida
April 9, 1982
The Honorable Harold Bazzel
Clerk of the Circuit Court
Bay County
Post Office Box 2269
Panama City, Florida 32401
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~\~ 082-23
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Re: CLERKS OF THE CIRCUIT COURTS--COUNTIES--PUBLIC
RECORDS--lease of space within clerk's office
to abstract and title companies, unauthorized;
service fees charged abstract and title companies.
Art. VII, S~l and 10, State Const., SS28.l9,
28.24, 119.07(1) (a), 119.08, 125.01(1) (c), F.S.
Dear Hr. Bazzel:
This is in response to your request for an opinion on
substantially the following questions:
1. MAY THE CLERK OF THE CIRCUIT COURT
OR THE BOARD OF COUNTY COHMISSIONERS
LEASE SPACE WITHIN THE CLERK'S OFFICE TO
ABSTRACT AND TITLE COHPANIES FOR PRIVATE
PHOTOCOPYING PURPOSES AND NOT CHARGE
SAID COHPANIES $1.00 PER PAGE FOR EACH
COPY MADE?
2. IF THE ANSWER TO QUESTION NUMBER ONE
IS IN THE AFFIRMATIVE, UNDER WHAT TERMS,
CONDITIONS, AND PROCEDURE SHOULD THE
SPACE WITHIN THE CLERK'S OFFICE BE
LEASED TO ABSTRACT AND TITLE COMPANIES
FOR PHOTOCOPYING PURPOSES?
3. IF THE ANSWER TO QUESTION NUMBER ONE
IS IN THE AFFIRMATIVE, CAN THE COUNTY
DENY OR LIMIT THE LEASING OF SPACE FOR
PRIVATE PHOTOCOPYING TO OTHERS, i.e.,
ATTORNEYS, REAL ESTATE APPRA:,-SERS,
LENDING INSTITUTIONS OR CREDIT BUREAUS?
The Honorable Harold Bazze1
Page Two
082-23
According to your letter several abstract and title
companies have requested that they be allowed to lease space
within the clerk of the circuit court's office where the
official records are kept for the purpose of locating a
photocopier to copy public records. Under the companies'
proposal the photocopier would be used only by their own
employees for company purposes. The companies' contend that
since it will be their own employees who would be retrieving
and making copies of the public records on a company
photocopier they would not be required to pay the $1.00 per
page service charge prescribed in ~28.24, F.S., and there
would be no further obligation owed the county other than
the lease payments for the space in the clerk's office.
Initially it must be emphasized that the clerk of the
circuit court has no authority to lease, rent, allocate,
assign or maintain space in the county courthouse or any
other county building either to or for public officers or
private persons or businesses. It is the board of county
commissioners, as the legislative and governing body of the
county, that has the sole responsibility for leasing,
allocating, assigning or maintaining space in the county
courthouse or any other county building and when acting
within its discretion, the decision of the county commission
will not be interfered with by the courts absent a clear
showing of fraud or abuse of that discretion. See
~125.01(1)(c) and (3)(a), F.S.; ~125.35, F.S.; Mathis v.
Lovett, 215 So.2d 490 (1 D.C.A. Fla., 1968); AGO's 071-275,
064-63, 055-101; and generally 20 C.J.S. Counties ~~169,
208. Thus, for the purposes of this opinion~our first
question will be treated as inquiring only whether the board
of county commissioners may lease space within the clerk's
office to abstract and title companies for private
photocopying purposes.
Article VII, ~10, State Const., prohibits the state or
county or any agency thereof from using, giving, or lending
its taxing power or credit to aid any private interest or
individual. The purpose of this constitutional provision is
lito protect public funds and resources from being exploited
in assisting or promoting private ventures when the public
would be at most only incidentally benefited." Bannon v.
Port of Palm Beach District, 246 So.2d 737, 741 (Fla. 1971).
Cf. Markham v. State Department of Revenue, 298 So.2d 210
The Honorable Harold Bazzel
Page Three
082-23
(1 D.C.A. Fla., 1974); State v. Town of North Miami, 59
So.2d 779 (Fla. 1952); and Bailey v. City of Tampa, 111 So.
119 (Fla. 1926). It is only when there is some clearly
identified and concrete public purpose as the primary
objective and a reasonable expectation that such purpose
will be substantially and effectively accomplished, that the
state or its subdivisions may disburse, loan or pledge
public funds or property to a non-governmental entity.
O'Neill v. Burns, 198 So.2d 1 (Fla. 1967).
Furthermore, the State Constitution prohibits the expendi-
ture of public money for a private purpose. Article VII,
~l, State Const., impliedly limits the imposition of taxes
and the expenditures of tax revenues to public purposes.
See Board of Commissioners v. Board of Pilot Commissioners,
4:r-So. 697 (Fla. 1906); Brown v. Winton, 197 So. 543 (Fla.
1940); AGO's 080-93, 071-28. As a general principle, the
power to levy and collect taxes and the power to appropriate
public funds are coexistent and if a tax cannot be levied
for a particular purpose, no appropriation of public money
can be ~ade for such purpose. ~ee generally 8lA C.J.S.
States S205(a), p. 726. Since the county lacks the
authority to levy and collect taxes or expend tax revenues
for the purpose of providing and maintaining space in a
county building for a private profit-making business
enterprise that performs no necessary county function or
service for the county it would also seem to follow under
the above constitutional provision, that a business such as
an abstract and title company may not be leased space in the
county courthouse or, more particularly, in the clerk's
office.
Previous opinions of this office have answered in the
negative the question whether county buildings may be used
for the purpose of operating a private business enterprise.
See AGO 080-93, wherein it was opined that the clerk of the
circuit court was not authorized to enter into an agreement
with a private corporation, i.e., a credit bureau, whereby
public employees and facilities of the clerk's office would
be used by the private corporation for its own benefit. See
also AGO 055-184 wherein it was opined that the rental of-a-
portion of a county health clinic to a physician in the
private practice of medicine was not authorized by law; and
The Honorable Harold Bazzel
Page Four
082-23
particularly AGO 055-101, wherein it was opined that the
board of county commissioners was not authorized to furnish
office space in the county courthouse to private businesses,
in that particular instance, an abstract and title company.
As stated in AGO 055-101, abstract and title companies are
engaged in business for vrofit and perform no service for
the county, nor do they perform a necessary county function.
Based upon all of the above, I am again compelled to
conclude that the board of county commissioners is not
authorized to lease space within the clerk of the circuit
court's office to abstract and title companies for their
private uses and purposes.
Since your first question is answered in the negative,
consideration of the remaining two questions is unnecessary
except to note that what has been stated above in regard to
abstract and title companies applies equally to the leasing
of space for private photocopying purposes to the others
enumerated in your third question, i.e., private attorneys,
real estate appraisers, lending institutions or credit
bureaus. However, in still further consideration of your
first question and your letter in which you seem to imply
that the $1.00 per page service charge set forth in ~28.24,
F.S., is required of abstract and title companies in order
to make photographs or photocopies of the public records,
your attention is directed to additional law controlling the
subject matter of your inquiry.
Section lI9.07(1)(a), F.S., provides, in pertinent part, as
follows:
Every person who has custody of public
records shall permit the records to be
inspected and examined by any person
desiring to do so, at reasonable times,
under reasonable conditions, and under
supervision by the custodian of the
records or his designee. The custodian
shall furnish copies or certified copies
of the records upon payment of fee~~
prescribed by law or, if fees are not
prescribed by law, upon payment of the
actual cost of duplication of the
copies. . . . (e.s.)
The Honorable Harold Bazzel
Page Five
082-23
See also the second clause of ~28.19(2), F.S., which states
that-the clerk shall not be required to ~erform any service
in connection with the inspection or mak~ng of extracts from
the public records without payment of service charges as
provided in ~28.24, F.S. Section 28.24(9), F.S., prescribes
the services charges the clerk of the circuit court shall
make for "services rendered by his office" in making copies
by photographic process of any instrument in the public
records; and ~28.24(10), prescribes the charges to be made
for making microfilm copies of any public records. However,
the above statutory provisions and in particular the service
charges prescribed in ~28.24(9), are only applicable when
the clerk performs the service.
Section 119.08(1), F.S., provides as follows:
In all cases where the public or any
person interested has a right to inspect
or take extracts or make copies from any
public record, instruments or documents,
any person shall hereafter~~ve the
right of access to said records, docu-
ments or instruments for the purpo~e of
making photographs of the same while in
the possession, custody and control of
the lawful custodian thereof, or his
authorized deputy. (e.s.)
See also ~28.19(2), F.S., which provides that "[s]uch
records shall always be open to the public, under the
supervision of the clerk, for the purpose of inspection
thereof and of making extracts therefrom; .. "Cf.
State ex reI. Harris v. Wiecking, 61 So. 125 (Fla. 1913) and
State ex reI. Davis v. HcMillan, 38 So. 666 (Fla. 1905),
holding-that the public generally, including any persons or
firm who may be engaged in the enterprise of compiling
abstract books of the titles to real estate in a county,
have a continuous right under what is now ~28.19(2), F.S.,
of access to the public records, at all reasonable hours and
times, by themselves or their agents, to inspect and make
extracts from any and all of the public records in the
offices of the clerks of the circuit courts; and that where
such inspection and extracting is done by the parties
themselves. or by their agents or assistants, without any
The Honorable Harold Bazzel
Page Six
082-23
service or assistance from the clerk or his deputies in
connection therewith, other than that general supervision
and watchfulness as to what is going forward in his office
that is necessary to the safe-keeping of the records, then
the clerk is not entitled to any fees or compensation.
In addition to providing that the public or any person
interested shall have the right of access to public records
for the purpose of making photographs of the same, Sl19.08
in subsection (2), provides that such work shall be done
under the supervision of the lawful custodian of the records
who shall have the right to adopt and enforce reasonable
rules governing said work, and subsection (3), provides that
the lawful custodian of the records may charge the person
desiring to make the said photographs for the supervisory
services of the lawful custodian or deputy of the lawful
custodian.
Thus, based upon the above statutes and judicial decisions,
it is my opinion that the general public, including any
persons or firm engaged in the enterprise of compiling
abstract books of title to real estate, has the right, at
all reasonable hours and times, to inspect and make
photocopies of any and all of the public records in the
offices of the clerks of the circuit courts and that when
such inspection and copying is done by the public, without
any service or assistance from the clerk or his deputies,
then the clerk is entitled only to the supervision service
charge provided for in ~119.08(3), F.S. To the extent that
previous opinions of this office are to the contrary, they
are hereby modified or superseded.
In summary, it is my opinion that neither the clerk of the
circuit court nor the board of county commissioners may
lease space in the clerk's office to abstract and title
companies for private business uses and purposes. However,
the public generally, including abstract and title companies
have the continuous right at all reasonable hours and times,
by themselves or their agents or employees, to inspect and
make photocopies of any and all of the public records in the
offices of the clerks of the circuit courts. When the clerk
performs the service of making copies by photographic
process or microfilms copies of any instrument in the public
records, the clerk must charge the appropriate service
The Honorable Harold Bazzel
Page Seven
082-23
charges provided for in S28.24, F.S.; however, when a member
of the public uses his own photographic equipment to make
his own copy, the clerk is not entitled to the fees
prescribed in S28.24, but is only entitled to the
supervisory service charge provided for in Sl19.08(3), F.S.
c: re~y,
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Assistant Attorney General
JS/LL/dc