Item S2
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
TIME CERT AINt:30PM
Meeting Date: 9/17/03
Division:
District 1
Bulk Item: Yes
No
Department: Mayor Dixie M. Spehar
AGENDA ITEM WORDING:
Approval of a resolution of the of the Board of County Commissioners of Monro~ county, Florida
(County); recognizing the request oflslamorada Village oflslands (Village) for the County to allocate
and distribute to the Village a percentage of the constitutional fuel tax, authorizing the allocation of
such funds to the Village for the Fiscal Year 2003-04; requiring that such funds be used by the Village
to finance roadway improvement; directing the County Administrator to prepare an interlocal
agreement between the County and the Village to implement the allocation; and providing for an
effective date.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
The issue was brought before the BOCC at the June BOCC meeting. It was referred to the County
Administrator.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
TOTAL COST:
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNT PER MONTH
Year
APPROVED BY: County Arty X- OMB/Purchasing _ Risk Management_
DIVISION DIRECTOR APPROVAL:
#- m ~.w
Mayor ixie M. Spehar
DOCUMENTATION:
Included L
To Follow_..
Not Required
AGENDA ITEM # ~ 2
DISPOSITION:
Revised 1/03
Mayor Dixie Spehar
RESOLUTION NO.
2003
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA (THE "COUNTY"); RECOGNIZING THE
REQUEST OF ISLAMORADA VILLAGE OF ISLANDS (THE "VILLAGE') FOR
THE COUNTY TO ALLOCATE AND DISTRIBUTE TO THE VILLAGE A
PERCENTAGE OF THE CONSTITUTIONAL FUEL TAX, AUTHORIZING THE
ALLOCATION OF SUCH FUNDS TO THE VILLAGE FOR THE FISCAL YEAR
2003-04; REQUIRING THAT SUCH FUNDS BE USED BY THE VILLAGE TO
FINANCE ROADWAY IMPROVEMENTS; DIRECTING THE COUNTY
ADMINISTRATOR TO PREPARE AN INTERLOCAL AGREEMENt BETWEEN
THE COUNTY AND THE VILLAGE TO IMPLEMENT THE ALLOCATION;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, pursuant to Article XII, Section 9(c) of the Florida Constitution, and
Sections 206.41(1)(a), 206.47, 336.023 and 336.024, Florida Statutes, a tax on the sale of
motor fuel (the "Constitutional Fuel Tax") of two cents per gallon is levied countywide; and
WHEREAS, the County receives an annual allocation of this Constitutional Fuel Tax of
approximately $2.3 million dollars to be utilized for the "acquisition, construction and
maintenance of roads; and
WHEREAS, a portion of this revenue is generated by the sale of motor fuel within the
Village; and
WHEREAS, the County currently expends this revenue on County Roads and as no
County Roads are located within the boundaries of the Village, none of these Constitutional
Fuel Tax revenues are spent in the Village; and
WHEREAS, prior to the incorporation of the Village, except for US Highway One, all of
the roadways located in the Village were County Roads; and
WHEREAS, although the County transferred all of the County Roads to the Village,
these Village Roads, such as County Road 904 which runs parallel to US Highway One, are
utilized by all residents and visitors of the County; and
WHEREAS, the Vii/age has previously requested the Board of County Commissioners
(the "BOCC") to allocate a fair share of this Constitutional Fuel Tax back to the Village for
Village Roads which for Fiscal Year 2003-04 would be approximately $247,000 dollars; and
WHEREAS, the BOCC recognizes that fundamental fairness of sharing this countywide
generated revenue stream with the Village to improve roadways that are used by all
residents of the County; now, therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, that:
Section 1. Recitals. The above recitals are true and correct and are incorporated
herein by this reference.
Section 2. Allocation of Constitutional Fuel Tax. The County shall allocate a
percentag~ of the Constitutional Fuel Tax to the Village starting with Fiscal Year 2003-04
subject to the following conditions:
1. The percentage of the Constitutional Fuel Tax allocated to the Village shall
be based upon the percentage of road miles within the Village to the total road miles
located within the entire County;
2. The revenues allocated to the Village shall be expended by the Village for
use on Village Roadways for projects that provide the greatest benefit to all residents
and visitors to the County;
3. The revenues shall be allocated through an Interlocal agreement between
the County and the Village and provided on a reimbursement basis for those uses
specified in Florida Statutes.
4. The allocation shall be provided on an annual basis and the annual
allocation must be encumbered or appropriated by the Village during the fiscal year
of the allocation and cannot be carried over from year to year.
5. The percentage of revenues allocated to the Village shall adjust each fiscal
year based upon the total Constitutional Fuel Taxes received by the County and the
actual road miles should either the County or the Village's road miles change.
Section 3. Authorization of County Officials. The County Administrator is
authorized to negotiate an Interlocal Agreement with the Village to reflect the terms and
conditions of the allocation as specified in Section 2 above, and to adjust the Fiscal Year
2003-04 County Road and Bridge fund budget to reflect this allocation to the Village. The
Interlocal Agreement shall be presented to the Board of County Commissioners no later
than , 2003.
Section 4. Effective Date. This resolution shall become effective immediately upon
its adoption by the Commission and execution by the Mayor and Clerk.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a meeting of said Board held on the 17th day of September, 2003.
Mayor Spehar
Mayor Pro Tem Nelson
Commissioner McCoy
Commissioner Neugent
Commissioner Rice
(SEAL)
Attest: DANNY L.KOLHAGE, Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By
By
MONROE COUNTY ATTOANl:V
A RO 0 AS TO f=ORM:
Mayor/Chairperson
Deputy Clerk
jresVOIgastax
JOHN R. COLLINS
0. 07/~J~tT~~N~_Y
Page 1 of2
Collins-John
From: Collins-John
Tuesday, September 16, 20032:25 PM
Spehar-Dixie
Spehar-Dixie; McCoy-Sonny; Nelson-Murray; Neugent-George; Rice-David; Roberts-Jim; Wolfe-Rob; Hutton-
Suzanne; Shillinger-Bob
Subject: Constitutional Fuel Tax
Dear Mayor Spehar:
Sent:
To:
Cc:
I am informed by Suzanne Hutton that you have expressed concern that the Attorney General opinions concerning
distribution of the constitutional fuel tax which I previously forwarded to the BOCC are outdated in that the wording of the
statute upon which the opinions were based was subsequently changed. You also provided a copy of the fax from Ron
Levy which contains the new statutory language.
This office was aware of the change in the language of the statute; the change occurred in 1987. During our initial
research into the issues of the various fuel taxes and their suitability for distribution to and among the various
municipalities, we considered whether the change in the language was authority for sharing the constitutional fuel taxes
("surplus taxes") with the municipalities. It was my belief then, and it still is, that there is no authority to entering into a
sharing agreement with a municipality.
The language in question read, prior to the 1987 change: "Any surplus which is not otherwise used to provide
connecting roads pursuant to subsection (1) shall be used on the county road system, as defined in s. 334.03(23)."
The language, as changed in 1987, now reads: "Any surplus which is not otherwise used to provide connecting
roads pursuant to subsection (1) shall be used on any road in the county at the discretion of the county governing body."
I am led to believe that the change in the language was precipitated by the then-extant relationship between the
Department of Transportation (DOT) and several counties, wherein the DOT had tremendous power in classifying roads
and in determining (through various classification and maintenance priorities) which roads would be maintained by the
various counties using the constitutional fuel tax. The counties, in order to qualify for and receive additional DOT funding
support, had to follow the "suggestions" of DOT as to which roads received what funds. Although I have not been able to
access the legislative history of the bill which changed the language, it is my current belief that the intent was not to
change the requirement that the constitutional fuel taxes be spent only on county roads, but to give the counties the final
authority and discretion (over DOT's suggestions) as to which roads in the county road system the funds would be
expended upon.
As you may recall, I discussed this issue with you in March and April (and you had a discussion with Rob Wolfe
concerning this office's position when you were of the opinion that the county should not share the constitutional fuel
taxes). I indicated to you at that time if the issue was going to rise to the level of major concem for the BOCC, we should
request an opinion from the Attorney General to assist us in handling the matter.
Many months later, I was somewhat surprised to find on my desk a draft resolution faxed by Ron Levy which was
to be sponsored by you and which would establish a sharing agreement with Islamorada. This was the first indication I
had that you had changed your position and that you had some question conceming the validity of my previous advice.
I realize that you are receiving information and recommendations from outside sources, and that you may feel that
my legal advice to you is somewhat suspect. However, I still believe that the resolution lies in requesting the Attorney
General to opine on the question. Should he find that there is legal authority for the county to share constitutional fuel
taxes with municipalities, then the matter becomes one for the BOCC to take action upon. I have been wrong before and
do not mind being wrong again in the eyes of a proper authority.
Should you require any further background information concerning this issue, please let me know at your
convenience.
John R. Collins, County Attorney
co IIins-john@monroecounty-fl.gov
(305) 292-3470
9/1612003
Page I of 4
Florida Attorney General
Advisory Legal Opinion
IlE'. tJD ~t2.n"i
10 S~ '&,.,"11'U 7ifJ,Jh.-
r;M 7A-f" WITH A
'fv'v';lt\fft1,-l ct .
Number: AGO 80-22
Date: March 17, 1980
Subject: Surplus second gas tax funds
Michae~ Rider
Attorney for G~ades County Board of County Commissioners
Lake P~acid
QUESTIONS:
1. May the surp~us second gas tax funds be used by the county commission
for the construction of roads within the city ~imits of an incorporated
municipa~ity ~ocated who~~y within the county?
2. May the seventh-cent gas tax funds be used by the county commission for
the construction of roads within the city ~imits of an incorporated
municipa~ity ~ocated who~~y within the county?
SUMMARY:
~
The Board of County Commissioners of G~ades County may use the surp~us
second gas tax funds for the acquisition and constrUction of roads within
the 'county road system' of G~ades County, which is ~imited within the
city ~imits of incorporated municipa~ities in that coun to inc~ude on~y
extens10ns of (county co~~ector roa s into and through such
municipa~ities. The Board of County Commissioners of G~adesCounty may use
the seventh-cent gas tax funds for the acquisition of rights-of-way and
for the construction, reconstruction, operation, maintenance, and repair
of transportation faci~ities, roads, and bridges within the 'county road
system' of G~ades County, which is ~imi ted wi thin the ci ty ~imi ts of
incorporated municipa~ities in that county to inc~ude on~y extensions of
co~~ector roads into and through such municipa~ities.
Your ~etter of in9Ui~ and subsequent correspondence with this office
indicate that the G~ades County Board of County Commissioners is wi~~ing
to assist in the construction of certain streets within the corporate
~imits of the Cit~ of MOore Haven, re~ying on ss. 206.47 and 206.60, F.
S., as authority therefor. You further indicated that none of the streets
or roads to be paved wi~~ be permanent~y owned or maintained by the
.county, a~though a few might qua~ify as co~~ector roads under s. 334.03
(16), F. S. Section 334.03(24) defines 'city street systems' to consist of
a~~ ~oca~ roads within a municipa~ity and a~~ co~~ector roads inside a
municipa~ity, which are not in the county road system. Before answering
the specific questions raised by your ~etter of inquiry, it shou~d be
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noted that the Fl.orida Transportation Code (chs. 334-339 and 341, F. S.)
divides the publ.ic roads in this state into four systems: the state
highway system, the state park road system, the county road systems, and
the city street systems. Section 335.01(2). The Department of
Transportation and counties, cities, and other pol.itical. subdivisions have
been given the respons1bil.ity for the roads under their respective
jurisdictions, except as otherwise provided by l.aw. Section 335.04(4). The
county commissioners of each county of this state have been given the
respons1bil.itv for the county road systems within their respective
counties under s. 336.02.
.
The Department of Transportation has been authorized under s. 335.C?4, F.
S., to cl.assify each and every publ.ic road in the state in a functional.
manner, according to the character of service each road provides in
rel.ation to the total. road network and based on the definitions contained
under s. 334.03, F. S. Pursuant to SSe 335.04(1) and 334.03 and Rul.e 14-
12.03, F .A. C., the Depart:ment of Transportation has devel.oped and
distr1buted, to al.l. the jurisdictions affected, maps and tabul.ar l.istings
indicating the existing state road system and identifying roads which, on
the basis of their functional. cl.assification, are to be transferred to or
from state respons1bil.ity. The Department of Transportation has al.so
devel.oped and distr1buted maps and l.istings which define the functional.l.y
cl.assified county road and city street systems.
AS TO QUESTION 1:
Section 9(c) (5), Art. XII, State Const.. and S. 206.47(7). F..S., govern
the use and distr1bution of the second gas tax funds and restrict the use
01 surpl.us second as tax funds to the ac isition and construction of
roa s w1thin the county road system. See AGO's 079-43 and 079-104. This
restriction of the use of surpl.us second gas tax funds to the 'county road
system' is further supported by S. 339.089, F. S., which provides as
fol.l.ows:
Use by counties of the surpl.us from the second gas tax.--
(1) Any county which has agreed prior to Jul.y 1, 1977, by resol.ution,
to use the surpl.us of the second gas tax to provide a connecting road
to a pl.anned interchange on the interstate system shal.l. provide such
connecting road.
(2) Any surpl.us which is not otherwise used to provide connecting
roads pursuant to subsection (1) shal.l. be used on the county road
system, as defined in S. 334.03(23). (Emphasis suppl.ied.)
Col.l.ector roads inside a municipal.ity which are not in the county road
system are a part of the municipal.ity's street system. See s. 334.03(24)
F. S.
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faci1ities, roads and bridges therein. . ..' See a~so s. 206.60(2) (b)2.,
assigning to the county commission fu11 respons1bi1ity for the maintenance
of roads in the county road system. When s. 206.60 is read with ss. 336.01
and 336.02, F. S., it becomes c1ear that the Legis1ature intended that the
additiona1 seventh-cent gas tax revenues be used for the 'construction .
. of roads' re1ating to the 'county road system.' According1y, the Board
of County Commissioners of G1ades County can use the additiona1 seventh-
cent gas tax funds for the construction of roads within the city limits of
an incorporated municipa1ity of the county, which are part of the 'county
road system,' as that term is defined and exp1ained under question 1.
Prepared by: -
Ceci1 L. Davis, Jr.
Assistant Attorney Genera1
Michae1 K. Wi1ensky
Lega1 Intern
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It is therefore my opinion that surplus second gas tax funds must be used
for the acquisition and construction of roads within the 'county road
system' and cannot be properly expended for the construction of any other
roads'r
.....
The 'county road system' is defined under s. 334.03(23), F. S., as
follows:
'County road system. '--The county road system of each county shall
consist of all collector roads in the unincorporated areas and a~~
extensions of such co~~ector roads into and through any inco~orated
areas, all local roads in the unincorporated areas, and a~~ urban
minor arteria~s not in the state highway system. (Emphasis supplied.)
~~~ the only roads within an incorporated municipality of a county that
fa I within the definition of the 'coun road s stem' are extensions of
coun:y co ector roa s into and throu h an inco ra ted areas and urban
~nor ar erials not in the state hiqhway system. Collector roads, ur an
minor arterial roads, and the state highway system are defined
respectively under subsections (16), (21), and (22) of s. 334.03, F. S.
I have been informed by the Department of Transportation that Glades
County has no urban areas, as that term is defined under s. 334.03(18),
F.S. Based on this information, it appears that Glades County has no roads
which would be classified as urban principal arterial roads or urban minor
arterial roads, as those terms are defined respectively under s. 334.03
(20) and (21). Therefore, the only roads within an incorporated
municipality of Glades County which would be a part of the county road
system would be extensions of (county) collector roads into and through
the incorporated areas. In determining whether a road to be constructed
within an incorporated municipality in the county would be an extension of
a collector road and within the county road system, the Board of County
Commissioners should consult the maps and listings prepared by the
Department of Transportation, which define the functionally classified
county road and city street systems within the county.
Accordingly, the Board of County Commissioners of Glades County can use /
surplus second gas tax funds for the construction of roads within the
'county road system' of Glades County, which would be limited within the
city limits of incorporated municipalities in the county to include only
extensions of (county) collector roads into and through such
municipalities.
AS TO QUESTION 2:
The use of the additional seventh-cent gas tax is governed by s. 206.60(2)
(b)l., F. S., which provides that the county commissioners shall use these
funds solely for 'the acquisition of rights-of-way; the construction,
reconstruction, operation, maintenance, and repair of transportation
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Florida Attorney General
Advisory Legal Opinion
Number: AGO 84-06
Date: January 23, 1984
Subject: Use of gas tax for traffic control devices
Mr. Scott L. Knox
County Attorney
Pasco County
4025 Moon Lake Road
New Port Richey, F~orida 33552
Dear Mr. Knox:
This is in response to your request for an opinion on substantia~ly the
fo~~owing question:
IS THE" COUNTY AUTHORIZED TO UTILIZE THE SURPLUS OF THE CONSTITUTIONAL
GAS TAX TO PURCHASE AND INSTALL TRAFFIC CONTROL DEVICES ON EXISTING
ROADS WITHIN THE COUNTY ROAD SYSTEM?
Supp~emental infor.mation furnished this office by the chair.man of the
board of county commissioners indicates that ~e con~~ated insta~lation
of traffic contro~ devices inc~udes insta~~ations on federa~ and state
highways. i?1is OJ)1n1.E,n 1S confined to the authority to insta~~ and
maintain traffic contro~ devices on roads within the county road system as
defined in s 334.03(23), F.S., and is not to be taken to app~y to any
e enditure of the surp~us proceeds of the constitutiona~ gas tax for the
purchase and ins a 10n 0 ra 1C con ro V1ces on edera~ or state
hi hwa s or on an road other than a road within the county road system.
Compare, AGO 80-22 stating that surplus second gas tax (now the
constitutiona~ gas tax) funds must be used for the acquisition and
construction of roads within the county road system and cannot be properly
expended for the construction of any other roads.
Section 9(c) (5), Art. XII, State Const., as amended in 1980, in pertinent
part provides that n[t]he proceeds of the 'second qas tax' (now~
constitutiona~ gas tax pursuant to s 11, Ch. 83-3, Laws of F~orida)
shal~ be used ... for the acquisition and construction of roads and for
road maintenance as authorized by law."
Section 316.006(3), F.S., provides inter alia that:
Counties ... may place and maintain such traffic control devices which
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confor.m to the manua1 and specifications of the Department of
Transportation upon a11 streets and highways under their origina1
jurisdiction as they sha11 deem necessary to indicate and to carry out
the provisions of this chapter or to requ1ate, warn, or quide traffic.
See a1so, s 206.60(2) (b)2., F.S., which assigns to the county
commission the fu11 respons1bi1ity for the maintenance of
transportation faci1ities in the county and of roads in the county
road system; s 335.04(4), F.S., providing that the counties sha11 have
the respons1bi1ity for the operation and maintenance of the roads
under their jurisdiction, except as otherwise provided by 1aw; and
cf., s 336.02, F.S., empowering the county commission to estab1ish new
roads, change 01d roads and keep these in good repair. Section 336.41,
F.S., as amended by s 37, Ch. 83-3, Laws of F10rida, authorizes the
county commission to emp10y 1abor and provide equipment as may be
necessary for the construction and opening of new bridges and roads
and for the repair and maintenance of any existing roads and bridges.
However, a11 construction and reconstruction of roads and bridges,
inc1uding resurfacing, fu11 sca1e minera1 sea1 coating, and major
bridge and bridge system repairs, which are to be perfor.med uti1izing
the proceeds of the 80% portion of the surp1us of the constitutiona1
gas tax, sha11 be 1et to contract to the 10west respons1b1e bidder by
competitive bid, except in certain enumerated circumstances. Section
336.41, F.S., as amended, supra. Further, s 125.01(1) (m), F.S., which
provides that, to the extent not inconsistent with genera1 or specia1
1aw, the counties may provide and requ1ate roads and bridges and
enforce p1ans for the contr01 of traffic, when read with s 125.01(3)
(a) and (b), F. S., which incorporates a11 imp1ied powers necessary or
incidenta1 to carrying out enumerated powers and secures home ru1e
powers for counties, indicates that in 1ight of the statutory and
constitutiona1 provisions set forth above, the counties are not on1y
empowered to construct, operate and maintain county roads and bridges
in the county road system as defined in s 334.03(23), F.S., but now
are ob1igated and charged with the respons1bi1ity therefore. See a1so,
Speer v. 01son, 367 So.2d 207 (F1a.1978); s l(f), Art. VIII, State
Const.; AGO 83-26.
Section 125.01, F.S., which sets forth genera11y the powers and duties
of the 1egis1ative and governing body of a county provides that, to
the extent not inconsistent with genera1 or specia1 1aw, such a body
has the power to "deve10p and enforce p1ans for the contr01 of traffic
and parking" (subsection [1] [m]) and to "perfor.m any other acts not
inconsistent with 1aw which are in the common interest of the peop1e
of the county..." (subsection [1] [w]. Particular1y in urbanized areas
of the county, genera1 pub1ic safety may be a factor to be considered
as necessitating the p1acement and maintenance of traffic control
devices by the county to requ1ate, warn or guide traffic.
In view of the constitutiona1 and statutory provisions discussed
herein it wou1d appear that the entire respons1bility for
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construction, maintenance, operation and regulation of all roads and
bridqes in the county road system falls to the counties themselves.
Pursuant to s 316.006(3), F.S., counties are authorized to place and
maintain such traffic control devices on streets and hiqhways under
~eir jur1scu.c"C~on as they deem necessary to regulate, warn or guide
r-- __
traffic. When read together, s 316.006(3), F.S., and the other above
cited statutes and s 9 (c) (5), Art. XII, State Const., as amended in
1980, would appear to be broad enough to authorize the purchase and
installation of road signals and traffic control devices with the
proceeds of the second gas tax or constitutional gas tax.
Therefore, unless or until legislative clarification or direction
otherwise is forthcoming, it is my opinion that the Board of County
Commissioners of Pasco County is authorized to utilize the surplus of
the constitutional gas tax to purchase and install traffic control
devices on existing roads within the county road system as defined in
s 334.03(23), F.S.
Sincerely,
Jim Smith
Attorney General
Prepared by:
Gerry Hammond
Assistant Attorney General
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