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Item O3 03 BOARD OF COUNTY COMMISSIONERS COUNTY of MONROE u,.. 9 Mayor Craig Cates,District 1 The Florida Keys Mayor Pro Tern Holly Merrill Raschein,District 5 Michelle Lincoln,District 2 - James K. Scholl,District 3 ' David Rice,District 4 Board of County Commissioners Meeting June 21, 2023 Agenda Item Number: 03 2023-1149 BULK ITEM: No DEPARTMENT: County Attorney TIME APPROXIMATE: STAFF CONTACT: Bob Shillinger n/a AGENDA ITEM WORDING: Charter County discussion update. ITEM BACKGROUND: The BOCC authorized the County Attorney to begin drafting proposed charter. This item is intended to provide the Board with a monthly update on relevant issues and progress. Attached is a "one pager" that outlines some basic information on charter counties and the charter county transportation sales surtax. A copy of the relevant portion of the charter county transportation surtax statute follows. PREVIOUS RELEVANT BOCC ACTION: 5/17/23, BOCC discussed pursuing a charter and directed the County Attorney to start drafting a proposal that: 1. Authorized a charter county transportation surtax; 2. Respected municipal independence both in the short term and the long term; and 3. Maintained the current structure of County government. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: none DOCUMENTATION: F.S. 212.055(1) Charter County and Regional Transportation System Surtax.pdf FINANCIAL IMPACT: 3862 n/a 3863 Top Ten Highlights on Charter Counties & the Charter County Transportation Surtax 1. Charter counties' and those counties participating in a regional transit authority can levy a surtax [F.S. 212.055(1)] of up to 1 penny for up to 30 years to be used for: a. Development, construction, equipment, maintenance, operation, supportive services, including a countywide bus system, on-demand transportation services, & related costs of a fixed guideway rapid transit system; b. Planning, development, construction, operation, and maintenance of i. roads and bridges in the county; ii. bus and fixed guideway systems; iii. on-demand transportation services; c. Bonds for the payment of principal and interest on qualified projects. 2. 5 counties that have levied a Charter County Transportation Surtax2 a. Broward 1% Charter 1/1/19 to 12/31/48 b. Duval .5% Charter 1/1/89 until repealed (adopted b4 30y rule) c. Hillsborough 1% Charter 1/1/19 to 3/15/21 (terminated by Courts) d. Miami-Dade 1% Charter 1/1/03 until repealed (adopted b4 30y rule) e. Walton .5% RTA 1/1/13 to 12/31/15 (terminated; RTA axed) 3. At least 8 counties that tried but failed to levy a Charter County Transportation Surtax: Alachua (2x), Citrus, Columbia, Hillsborough (2014), Orange (2022), Osceola (2x), Pinellas & Polk (2x) 4. Charter County Transportation Surtax does not count towards tax rate cap. 5. Surtax proceeds may be but are not required to be shared with cities via ILA. That ILA must be revisited no less than every 5 years to include new cities. 6. Surtax Referendum must be held during a November general election. 7. The charter can't direct how the surtax proceeds are spent. BOCC decides.' 8. Charter must be approved separately by the voters. 9. Preemption — BOCC directed staff to draft charter so cities are not preempted. 10. BOCC opting to propose charter itself, without a charter commission. ' Charter counties: Alachua, Brevard, Broward, Charlotte, Clay, Columbia, Duval, Hillsborough, Lee, Leon, Miami-Dade, Orange, Osceola, Palm Beach, Pinellas, Polk, Sarasota, Seminole, Volusia, Wakulla 2 Local Govt. Financial Info. Handbook http://edr.state.fl.us/Content/local-government/reports/lgfih22.pdf 3 Emerson v. Hillsborough County, 312 So.3d 451 (Fla. 2021). Prepared by Monroe County Attorney Bob Shillinger, revised 6.6.23 3864 6/2/23,5:29 PM Statutes&Constitution :View Statutes:Online Sunshine Select Year: 2022 G U The 2022 Florida Statutes (including 2022 Special Session A and 2023 Special Session B) Title XIV Chapter 212 View Entire Chapter TAXATION AND FINANCE TAX ON SALES, USE, AND OTHER TRANSACTIONS 212.055 Discretionary sales surtaxes; legislative intent; authorization and use of proceeds.—It is the legislative intent that any authorization for imposition of a discretionary sales surtax shall be published in the Florida Statutes as a subsection of this section, irrespective of the duration of the levy. Each enactment shall specify the types of counties authorized to levy; the rate or rates which may be imposed; the maximum length of time the surtax may be imposed, if any; the procedure which must be followed to secure voter approval, if required; the purpose for which the proceeds may be expended; and such other requirements as the Legislature may provide. Taxable transactions and administrative procedures shall be as provided in s. 212,054. (1) CHARTER COUNTY AND REGIONAL TRANSPORTATION SYSTEM SURTAX.— (a) Each charter county that has adopted a charter, each county the government of which is consolidated with that of one or more municipalities, and each county that is within or under an interlocal agreement with a regional transportation or transit authority created under chapter 343 or chapter 349 may levy a discretionary sales surtax, subject to approval by a majority vote of the electorate of the county or by a charter amendment approved by a majority vote of the electorate of the county. (b) The rate shall be up to 1 percent. (c)1. The proposal to adopt a discretionary sales surtax as provided in this subsection and to create a trust fund within the county accounts shall be placed on the ballot in accordance with law and must be approved in a referendum held at a general election in accordance with subsection (10). 2. If the proposal to adopt a surtax is by initiative, the petition sponsor must, at least 180 days before the proposed referendum, comply with all of the following: a. Provide a copy of the final resolution or ordinance to the Office of Program Policy Analysis and Government Accountability. The Office of Program Policy Analysis and Government Accountability shall procure a certified public accountant in accordance with subsection (11) for the performance audit. b. File the initiative petition and its required valid signatures with the supervisor of elections. The supervisor of elections shall verify signatures and retain signature forms in the same manner as required for initiatives under s. 100.371(11). 3. The failure of an initiative sponsor to comply with the requirements of subparagraph 2. renders any referendum held void. (d)1. Except as set forth in subparagraph 2., proceeds from the surtax shall be applied to as many or as few of the uses enumerated below in whatever combination the county commission deems appropriate: a. Deposited by the county in the trust fund and shall be used for the purposes of development, construction, equipment, maintenance, operation, supportive services, including a countywide bus system, on-demand transportation services, and related costs of a fixed guideway rapid transit system; b. Remitted by the governing body of the county to an expressway, transit, or transportation authority created by law to be used, at the discretion of such authority, for the development, construction, operation, or maintenance of roads or bridges in the county, for the operation and maintenance of a bus system, for the operation and maintenance of on-demand transportation services, for the payment of principal and interest on existing bonds issued for the construction of such roads or bridges, and, upon approval by the county commission, such proceeds may be pledged for bonds issued to refinance existing bonds or new bonds issued for the construction of such roads or bridges; and c. Used by the county for the planning, development, construction, operation, and maintenance of roads and bridges in the county; for the planning, development, expansion, operation, and maintenance of bus and fixed guideway systems; for the planning, development, construction, expansion, operation, and maintenance of on-demand transportation services; and 3865 www.Ieg.state.fl.us/STATUTES/index.cfm?App_mod e=Display_Statute&U RL=0200-0299/0212/Sections/0212.055.html 6/2/23,5:29 PM Statutes&Constitution :View Statutes:Online Sunshine for the payment of principal and interest on bonds issued for the construction of fixed guideway rapid transit systems, bus systems, roads, or bridges; and such proceeds may be pledged by the governing body of the county for bonds issued to refinance existing bonds or new bonds issued for the construction of such fixed guideway rapid transit systems, bus systems, roads, or bridges. Pursuant to an interlocal agreement entered into pursuant to chapter 163, the governing body of the county may distribute proceeds from the tax to a municipality, or an expressway or transportation authority created by law to be expended for the purpose authorized by this paragraph. Any county that has entered into interlocal agreements for distribution of proceeds to one or more municipalities in the county shall revise such interlocal agreements no less than every 5 years in order to include any municipalities that have been created since the prior interlocal agreements were executed. 2.a. To the extent not prohibited by contracts or bond covenants in effect on that date, a county as defined in s. 125.011(1) shall use proceeds from the surtax only for the following purposes: F.S. 125.011(1) is code for Miami-Dade County (1) The planning, design, engineering, or construction of fixed guideway rapid transit systems, rail systems, and bus systems, including bus rapid transit systems, and for the development of dedicated facilities for autonomous vehicles as defined in s. 316.003. (11) The acquisition of rights-of-way for fixed guideway rapid transit systems, rail systems, and bus systems, including bus rapid transit systems, and for the development of dedicated facilities for autonomous vehicles as defined in s. 316.003. (111) The purchase of buses or other capital costs for bus systems, including bus rapid transit systems. (IV) The payment of principal and interest on bonds previously issued related to fixed guideway rapid transit systems, rail systems, or bus systems. (V) As security by the governing body of the county to refinance existing bonds or to issue new bonds for the planning, design, engineering, or construction of fixed guideway rapid transit systems, rail systems, bus rapid transit systems, or bus systems. (VI) For the operation and maintenance of fixed guideway rapid transit systems and bus routes or extensions thereof, including bus rapid transit systems, which were implemented or constructed subsequent to the passage of the surtax, and for operation and maintenance of services authorized by electors in passing the surtax or included in the ordinance authorizing the levy of the surtax subject to the electorate's approval. b. To the extent not prohibited by contracts or bond covenants in effect on October 1, 2022, no more than 25 percent of the surtax proceeds may be distributed to municipalities in total in a county as defined in s. 125.011(1). Such municipalities may use the surtax proceeds to plan, develop, construct, operate, and maintain roads and bridges in the municipality and to pay the principal and interest on bonds issued to construct roads or bridges. The governing body of the municipality may pledge the proceeds for bonds issued to refinance existing bonds or new bonds issued to construct such roads or bridges. Additionally, each such municipality may use surtax proceeds for transit systems within the municipality. (e) As used in this subsection, the term "on-demand transportation services" means transportation provided between flexible points of origin and destination selected by individual users with such service being provided at a time that is agreed upon by the user and the provider of the service and that is not fixed-schedule or fixed-route in nature. (f) Any discretionary sales surtax levied under this subsection pursuant to a referendum held on or after July 1, 2020, may not be levied for more than 30 years. (2) LOCAL GOVERNMEN RASTRUCTURE SURTAX.— (a The governing authority in county may levy a discr ona sales surtax of 0.5 perce or 1 percent. The levy of the su x shall be pursuant to ordinance e ed by a m ' ity of the m bers of the coun governing authority and approved by a ajority of the electors of the county ng in a referendum on surtax. I he governing bodies of the municipalities rep enting a majority of the count s popula ' n adopt uniform resol ' s establishing the rate of the surtax and calling for ferendum on the sur , the levy of the rtax shall be pl ed on ballot and shall take effect if approved by a majority of t electors of county voting in the refe dum o the surtax. 2. If the surtax was levied pu a o a referendum held before July 1, 93, the surtax may n be levied beyond the time established in the ordinanc or, ' e ordinance did not limit the p iod the levy, the surtax ma of be levied for more than 15 years. The le f such surtax be extended only b pproval of a ajority of the electors the county voting in a referendu n the surtax. (b) A stateme which includes a brief general des ' do the projects to be funded the surtax and which conforms to requirements of s. 101.161 shall be pla the ballot by the governing auth ity of any county which enacts an rdinance calling for a referendum on the levy of the s or in which the governing bo 'es of the municipaliti 3866 www.Ieg.state.fl.us/STATUTES/index.cfm?App_mode=Display_Statute&U RL=0200-0299/0212/Sections/0212.055.htmI 6/2/23,5:29 PM Statutes&Constitution :View Statutes:Online Sunshine 4. The county currently[ vies a local government infras u ture surtax pursuant to subsection (2)which is scheduled to ter inate and is not subject t enewal. 5. The pension liability surta does not take effect it the cal government infrastructure surtax described i subpa raph 4. is terminated. (b) A eferendum to adopt a pen 'on liabil' surtax must meet the equirements of s. 101.161 and m include a brief and genera description of the purpos f which the surtax proceeds wi l be used. (c) Pursu nt to s. 212.054(4), th ceeds of the surtax collected un er this subsection, les n administrative fee that may be ret ined by the de tment, hall be distributed by the depart ent to the local vernment. (d) The local g ernm may use the p sion liability surtax proceeds in he followin anner: 1. If the procee f the pension liability s tax have been actuarially recog ized provided in s. 112.64(6), the local government mu distrib to the proceeds to an e ' ible defined benefit retireme plan or system, not including the Florida Retiremen stem. 2. the proceeds of the nsion liability surtax ha e not been actuari y recogni d, the local government is au orized to distribute the proc eds to an eligible defin benefit re ' ement plan or s tem, not including the Florida eti ment System, to pledge the oceeds of the surtax to pay is incurred for the p rpose of making advanced payme s toward the unfunded liabili of an underfunded def' d benefit retirement plan r system, and to reimburse itself fro the proceeds of the surtax fo ny borrowing co s ass iated with such debts. (e) The rdinance providing for the im sition of t pension [ia i[ity surtax must specify ho the proceeds will be used: 1. The ordinan must specify the metho determining the percent e of the proceeds, and th frequency of such payments, distribute o each eligible def' ed be efit retirement plan or sys m if the proceeds of the nsion liability surtax are actuarially rec nized as pr ided in s. 1 .64(6). 2. The ordinance must s cif a local govern en ' intention to incur deb for the purpose of making a anced payments toward the unfund iability of an underfunde efined benefit retirem t plan or system if the pro eds of the pension liability surtax not ac arially recognized as provi d in s. 112 4(6). (f) A pension lia ' ity surtax imp d pursuant to this subject' n shall terminate on ecember 31 of the year in ich the actuarial fun ng level is expected t reach or exceed 100 perc nt for the defined ben fit retirement plan or syst for which the su ax was levied or December , 2060, whichever occurs irst. The most recent a aria[ report submitted t the Depar ent of Management Services pur ant to s. 112.63 must be sed to establish the [eve f actuarial funding. (g) otwithstanding any other provision of 's section, a county ma not levy local option sales rtaxes authorized in this subsection and subsections (2), (3), (4), and ( in excess of a combin d rate of 1 percent. (10) DATES FOR REFERENDA.—A referendum to adopt or amend a local government discretionary sales surtax under this section must be held at a general election as defined in s. 97.021. (11) PERFORMANCE AUDIT.— (a) To adopt a discretionary sales surtax under this section, an independent certified public accountant licensed pursuant to chapter 473 shall conduct a performance audit of the program associated with the proposed surtax. (b)1. At least 180 days before the referendum is held, the county or school district shall provide a copy of the final resolution or ordinance to the Office of Program Policy Analysis and Government Accountability. 2. Within 60 days after receiving the final resolution or ordinance, the Office of Program Policy Analysis and Government Accountability shall procure the certified public accountant and may use carryforward funds to pay for the services of the certified public accountant. 3. At least 60 days before the referendum is held, the performance audit must be completed and the audit report, including any findings, recommendations, or other accompanying documents, must be made available on the official website of the county or school district. 4. The county or school district shall keep the information on its website for 2 years from the date it was posted. 5. The failure to comply with the requirements under subparagraph 1. or subparagraph 3. renders any referendum held to adopt a discretionary sales surtax void. (c) For purposes of this subsection, the term "performance audit" means an examination of the program conducted according to applicable government auditing standards or auditing and evaluation standards of other appropriate authoritative bodies.At a minimum, a performance audit must include an examination of issues related to the following: 1. The economy, efficiency, or effectiveness of the program. 2. The structure or design of the program to accomplish its goals and objectives. 3867 www.Ieg.state.fl.us/STATUTES/index.cfm?App_m od e=Display_Statute&U RL=0200-0299/0212/Sections/0212.055.html 6/2/23,5:29 PM Statutes&Constitution :View Statutes:Online Sunshine 3. Alternative methods of providing program services or products. 4. Goals, objectives, and performance measures used by the program to monitor and report program accomplishments. 5. The accuracy or adequacy of public documents, reports, and requests prepared by the county or school district which relate to the program. 6. Compliance of the program with appropriate policies, rules, and laws. (d) This subsection does not apply to a referendum held to adopt the same discretionary surtax that was in place during the month of December immediately before the date of the referendum. History.-s. 2,ch. 76-284; s. 5,ch. 82-154;s. 3, ch. 83-3; s. 1, ch. 84-373;s. 1, ch. 84-555;s. 25, ch. 85-180; s.70,ch. 85-342; s. 8, ch. 87-99;s. 1, ch. 87-100;s. 2,ch. 87-239; s. 12,ch. 87-548;s. 85, ch. 90-132;s.4,ch. 90-203; s. 1,ch.90-282; ss.2, 3, ch. 91-81; s.29,ch. 91-112;s. 2, ch. 91-418;s. 1, ch. 91-423;s. 148,ch. 92-279; ss. 1, 2, ch. 92-309;s. 55, ch. 92-326;s. 3,ch.93-207; s. 3, ch. 93-222;s. 51, ch. 94-356;s. 1,ch.95- 258; s. 1,ch.96-240; s. 1, ch. 97-83;s. 17,ch. 97-384; s. 7,ch. 98-258;s. 9, ch. 98-342;s.4,ch.99-4;s. 1, ch. 99-340;s. 54,ch. 99-385; s.40,ch. 2000-151; ss. 10, 11, 13, 16,ch. 2000-312;s. 78, ch. 2000-318;s. 33, ch. 2001-60;s. 100, ch. 2002-20; s. 7, ch. 2002-196;s. 1,ch.2003-77; ss. 33, 42, ch. 2003-254; s. 91, ch. 2003-402; s. 6, ch. 2004-41;s. 1, ch. 2004-66;s. 1,ch.2004-259;s. 3,ch.2005-55; s. 1,ch.2005-56; s. 1, ch. 2005-96;s. 1, ch. 2005-242;s. 1, ch. 2006-66;s. 2,ch. 2006-223;s. 14,ch. 2007-196;s. 19,ch. 2009-96;s. 1,ch. 2009-132;s. 1,ch.2009-146; s. 1,ch.2009- 182; s. 1,ch.2010-154; s. 1,ch.2010-225; s. 5, ch. 2011-15; s. 3, ch. 2012-117;s. 14, ch. 2013-198;s. 6, ch. 2015-100;s. 1, ch. 2015-169;s. 2,ch. 2016-146; s.2, ch.2016-225; s. 64, ch.2016-241; s. 27,ch.2017-173; ss. 34, 35, 62, ch. 2018-118;s. 22, ch. 2018-158;s. 1, ch. 2019-64;s. 12, ch. 2019-159; s. 3, ch.2019-169; s. 18, ch. 2020-10; s.23, ch.2021-2;s. 21, ch. 2022-97. 1 Note.-Section 26, ch.2021-2, provides that: "(1) The Department of Revenue is authorized, and all conditions are deemed met, to adopt emergency rules pursuant to s. 120.54(4), Florida Statutes, for the purpose of administering this act. "(2) Notwithstanding any other law, emergency rules adopted pursuant to subsection (1) are effective for 6 months after adoption and may be renewed during the pendency of procedures to adopt permanent rules addressing the subject of the emergency rules. "(3) This section shall take effect upon this act becoming a law and expires July 1,2023." 2 Note.-Section 22, ch.2022-97, provides that"[t]he additional uses of surtax proceeds authorized by the amendments made by this act to S. 212.055(6)(c), Florida Statutes, may apply to a surtax in effect on the date this act becomes a law only to the extent such use was authorized in the original referendum adopting the surtax or is authorized pursuant to a subsequent resolution conditioned to take effect only upon approval of a majority vote of the electors of the county voting in a referendum." 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