CAO 01-17 Campaign Contrib.
CITY OF MIAMI BEACH
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
Jorge M. Gonzalez
City Manager ~V
Murray H. DubbA~1 ~
City Attorney J ~~ ~{
Jean K. Olin~
Deputy City Attorney
C.A.O. NO. 01-17
FROM:
SUBJECT: Violation of City Code Section 38-6 "Prohibited Campaign Contributions by
Vendors": Civil Works, Inc
DATE: October 26,2001
You have requested a legal opinion questioning the legality of certain actions taken by City
vendor Civil Works, Inc. (hereafter "CWI") via its donation of campaign contributions to candidates
for elected office in the City of Miami Beach's upcoming November 6, 2001 General Election -- the
questions posed (set forth below) are responded to accordingly.
1. Is Civil Works or its principals in violation of Section 38-6 of the City Code, entitled
"Prohibited Campaign Contributions by Vendors"?
Section 38-6 of the Miami Beach City Code, enacted and adopted on May 10, 2000,
proscribes City vendors from making campaign contributions to candidates for elected office in the
City of Miami Beach. The Code prohibition applies to "...natural persons and to persons who hold
a controlling financial interest in business entities." Furthermore, the Code contains a definition of
"Vendor" to include a person "... who has been approved by the City Commission to transact
business with the City".
Although Code Section 38-6 does not specifically require that a "knowing" violation has
occurred, the existence of a guilty mind is the rule of, rather than the exception to the principles of
American jurisprudence. The United States Supreme Court has stated that offenses providing for
strict liability (dispensing of any intentional violation of the law) are generally disfavored, and that
some indication of legislative intent, express or implied, is required to dispense with this "knowing"
factor as an element of a crime'. Chicone vs. State, 684 So.2d 736, 743 (Fla. 1996). Based on these
principles, Section 38-6 of the City Code should be read as requiring "knowledge" of the guilty act
and "intent" to commit said act.
I No legislative intent exists sufficient to support a reading that the Miami Beach City
Commission intended to impose strict liability upon violators of Code Section 38-6.
In light of the above and under the facts provided2, Civil Works, Inc. is not guilty of violating
City Code Section 38-6 inasmuch as of July 30, 2001 (the date the contributions were made), CWI
was not aware of the Code's proscription against campaign contributions by City vendors --
supporting CWI's lack of knowledge of Section 38-6 is: i) CWI's statement, (through Linda Bell its
principal shareholder) that it had no knowledge of the ordinance at the time of the campaign
contribution3; and ii) the fact that neither of the RFPs awarded to cwr made reference to Code
Section 38-6 -- this, coupled with the fact that subsequently-issued RFPs expressly reference the
subject Code section, further supports the proposition that absent specific notice of this Code section,
CWI could not have "knowingly" violated the Code.
2. If your legal opinion to number 1 is yes, is Civil Works disqualified from consideration
from contract award relative to the Biscayne Neighborhood Project, currently being
negotiated by the Administration?
Not applicable.
3. If your legal opinion to number 1 is yes, is Civil Works disqualified from consideration
on Request for Qualifications (RFQ) No. 54-00/01 - Collins Avenue from 5th to 15th
Street?
Not applicable.
4. If your legal opinion to issue number 1 is yes, what is the process for issuing a fine for
each violation, and requiring all contributions received by a candidate in violation of
Section 38-6 to be forfeited to the City's General Revenue Fund?
Not applicable.
JKOIkw
F:IA TTO\OLUlCAO-L TCIOI-17.CAO
2 Additional facts have been discovered pursuant to discussion with the City Administration.
3 See Attachment 1 to your request for legal opinion.
4 See Attachments 4 and 5 to your request for legal opinion, substantiating that as of July 30,
2001, the City Commission had authorized CWI to transact business with the City via City of Miami
Beach Resolution No. 2001-24383 and 2001-24418.
2